Leonard Link

Gay Entrapment - Somebody Fights Back!

A man who was arrested after rebuffing the attempts of an undercover cop to get him to violate a sexual solicitation law will get his day in court, as U.S. District Judge Thomas L. Ludington rejected most of the qualified immunity assertions made by the undercover cop in defending the man’s subsequent civil rights lawsuit. McCumons v. Marougi, 2009 WL 1470332 (E.D.Mich., May 26, 2009).

Contested facts underlie Judge Ludington’s decision to deny Officer Marougi’s motion for summary judgment as to many of Eugene McCumons’ constitutional claims. The case stems from McCumons’ arrest on August 10, 2007, charged with accosting, soliciting or inviting "another person in a public place or in or from a building or vehicle, by word, gesture, or any other means, to commit prostitution or to do any other lewd or immoral act," in violation of Mich. Comp. L. Sec. 750.448. The criminal charges against McCumons were subsequently dismissed, and he filed suit against Officer Marougi and the police department under 42 USC 1983, alleging violations of his First, Fourth and Fourteenth Amendment rights. Judge Ludington granted summary judgment on qualified immunity grounds on the 14^th amendment equal protection claim, but denied summary judgment on the 1^st and 4^th amendment claims.

The opinion includes extensive quotations from the complaint and motion papers, giving each man’s account of what happened. It appears that Hawthorne Park in Pontiac, Michigan, was known as an active gay cruising place, and Officer Marougi had staked out the park in plain clothes in his SUV, looking for action. McCumons drove into the park and conversation ensued between the two men, sitting in their respective vehicles with windows down. From both accounts, it appears that Marougi was working very hard to keep his comments opaque but inviting, that flirting was going on, but that McCumons decided not to go ahead with any kind of sexual activity and drove away. Nonetheless, Marougi signaled to fellow officers, who arrested McCumons, who also suffered impoundment of his car for several days, under a statute authorizing impounding of a motor vehicle that was used to commit any of various offenses, including sexual offenses. McCumons claims that some of what Marougi put in his official report was fabricated and provided the basis on which McCumons was charged.

McCumons alleged that Marougi’s actions violated his right to free speech, and that the arrest and the impoundment of his car involved his right to be free of unwarranted seizure of himself and his property. Marougi’s s.j. motion relied on the doctrine of qualified immunity, under which a public official cannot be sued for the discharge of discretionary functions unless his actions violated a clearly established legal right of the plaintiff. The burden is on the plaintiff to show that the defendant is not entitled to qualified immunity. If the existence of the established right depends on how disputed facts are resolved, then summary judgment can’t be granted.

In this case, Judge Ludington found that McCumons had sufficiently demonstrated that based on his version of the facts Marougi had violated clearly established constitutional rights involving speech and seizure of the person and property of the plaintiff. If Marougi’s version of the events was believed, however, the qualified immunity defense could apply. In light of that, a trial is necessary to determine the facts, and McCumons survives the motion for summary judgment.

However, Judge Ludington found that McCumons had not shown selective enforcement that would invoke an equal protection claim. Ludington observed that 6^th Circuit precedent required a plaintiff to demonstrate three things in a selective enforcement case: "First, [the state actor] must single out a person belonging to an identifiable group, such as those of a particular race or religion, or a group exercising constitutional rights, for prosecution even though he has decided not to prosecute persons not belonging to that group in similar situations. Second, he must initiate the prosecution with a discriminatory purpose. Finally, the prosecution must have a discriminatory effect on the group which the defendant belongs to."

"Here, Plaintiff has not identified someone from outside of the class that Defendant decided not to prosecute," wrote Judge Ludington. "Rather, Plaintiff argues that this requirement is irrelevant in this context because the record is replete with evidence of anti-homosexual animus." Ludington concluded this was not enough under circuit precedent, and concluded that McCumons could not establish an equal protection claim, so Marougi was entitled to immunity from that portion of the complaint.

Most people caught up in anti-gay police entrapment activity will do anything to avoid publicity and put the case behind them, so this kind of activity usually has little risk for the police officer who, as McCumons alleges in this case, falsifies a factual report to support an arrest in a situation where the arrested person has not actually violated the law. (Marougi stated in his report that McCumons had told Marougi that he wanted to "feed him his load" and had requested permission to enter Marougi’s vehicle for the purpose of engaging in oral sex, while McCumons denies both of these allegations which were undoubtedly central to the prosecutor’s determination to prefer charges against him.) Thus, it is refreshing and exciting to see a victim of this kind of set-up step forward to file a constitutional suit against the police officer to seek vindication of his rights.

Monteverdi swings....

Back in February I blogged about a recent Virgin Classics release, Monteverdi "Teatro d'Amore,' with Christina Pluhar leading a group of choice early music singers and the instrumental group L'Arpeggiata in a varied program of instrumental and vocal music by Monteverdi.  I enthused about the interesting selection, terrific instrumental arrangements, and wonderful singing, informed by the insight that Monteverdi was a popular composer and his non-religious works deserved to be approached in that spirit.

Since then, I have found that this recording has become one of my favorites, and especially the tracks on which countertenor Philippe Jaroussky and the ensemble slightly "swing" the rhythms, emphasizing even more the popular nature of this music when it was written.  Remember, Monteverdi was one of the great popular song-writers of his time.  As admired as his operas and sacred music were, the books of madrigals really made his fame, and madrigals were the popular songs of the time.

I was finally inspired to do a little comparative listening to see how much extra "swing" Jaroussky and Pluhar were providing, especially in the striking first song on the disc (following an exuberant reading of the instrumental prelude to Monteverdi's opera "L'Orfeo").    The song, one of Monteverdi's most popular, to judge by the number of recordings, is Ohime ch'io cado - which, translated in popular idiom, might be called "Oy vey, I'm falling in love...."  (Told ya so!)  Anyway, on the new Virgin recording, this starts off with a jazzy striding bass line, and the striding bass is emphasized throughout the song, emerging strongly between the verses to reinforce the jazzy nature of the interpretation.  Jaroussky, by contrast, sings the conversational vocal line relatively straight... perhaps tweaking it just a bit, but with his usual beautiful clarity, dramatic emphasis, and coloristic shading.  (The man is truly a great artist.)

How does this stack up against the others?  Searching through my collection, I came up with four other recordings of this song, all done by early music groups purporting to observe performance practice of the time and place (the piece was published in a small songbook collection in 1624 in Venice).  I listened to Guillemette Laurens with Skip Sempe conducting Capriccio Stravagante (Deutsche Harmonia Mundi), Maria Cristina Kiehr with Jean-Marc Aymes and Concerto Soave (Harmonia Mundi France), Patrizia Ciofi, with Emmanuelle Haim leading Le Concert d'Astree (also Virgin Classics), and Lavinia Bertotti with Roberto Gini and his Ensemble Concerto (Dynamic). 

My most interesting observation is how similar they all are -- and that "all" includes Jaroussky & Pluhar.  Although nobody else swings the rhythm quite as much as Pluhar, I would say that Aymes comes close, and the others seem not far behind.  Maybe the song just lends itself to that, with a striding bass that features dotted rhythms at times.  (I wish I had the score, but discovering that I did not, I went on line and ordered it, but it won't be here for a while.)  All of the other recordings are by sopranos, but that makes no difference because Jaroussky, although labeled a countertenor on the recording, is really a male soprano.  His voice sounds slightly different from all these women, just enough for one to conclude that a man is singing, but I wonder how a critical listener would do in picking out Jaroussky in a blind test of these recordings, if told in advance that a countertenor was included among the sopranos?  (That's assuming our listener was not already familiar with Jaroussky's voice.)

After listening to these five versions, I still hold Jaroussky/Pluhar as my favorite, but if asked to recommend another without the anachronistic swing to it, I would probably go for Kiehr and Aymes, since the others to varying degrees play down the accompaniment rhythm in a way that slightly detracts from the popular nature of the song.  Indeed, Sempe goes to the extreme of filling out the accompaniment with a full string section that rather buries the bass - and I think the bass really helps to make this a memorable song.  And memorable it is....  Top of the 1624 Venice hit parade!

And, as for Mr. Jaroussky, for whom I've formed a bit of an obsession, I can highly recommend another of his Virgin Classics recital discs, titled Vivaldi Heroes.  This is a collection of arias from Vivaldi operas, in which heroic parts are scored for castrato.  Jaroussky's clear, high soprano voice fits this music perfectly.  I wonder how close he comes to sounding like an actual early 18th century castrato?  I've so enjoyed this recording that I've been busy assembling a sequel on my ipod, getting complete Vivaldi opera recordings that include Jaroussky in the cast -- there are quite a few now -- and extracting his arias for importing to the ipod software, then arranging my own Vol. 2 of Vivaldi Heros.  Great listening.

Legal Formalists Triumph in Appellate Division Defeat for Lesbian Mother's Child Support Claim

A sharply divided panel of the New York Appellate Division, 2^nd Department, based in Brooklyn, ruled 3-2 on May 26 that a lesbian mother could not seek a child support order against her former partner in the Rockland County Family Court, because there is no specific statutory authorization for a proceeding to determine that a woman is a child’s parent. The ruling in H.M. v. E.T., 2009 Westlaw 1477264, reversed a ruling by Rockland Family Court Judge William P. Warren, who had ordered a hearing to determine whether E.T. should be precluded from denying a support obligation to the child whose birth she had planned with her partner.

The court’s opinion, by Justice Joseph Covello, drew a vehement dissenting opinion from Justice Ruth C. Balkin, joined by Justice Steven W. Fisher. The other judges in the majority were Justices Daniel D. Angiolillo and Cheryl E. Chambers.

According to the dissent, which provided a much more detailed and expansive statement of the facts than the majority, the parties were same-sex partners living in New York State for more than five years. Beginning with the first year of their relationship, they planned to have a child. E.T. had previously been married to a man and had two children from that relationship. Their plan was that H.M. would become pregnant through anonymous donor insemination, and would stay home to care for the children while E.T. worked towards her chiropractic degree.

It took numerous attempts at the fertility clinic, but H.M. finally got pregnant, with E.T. injecting the sperm specimen, and gave birth in September 1994 at home with a midwife’s assistance. For the first five months of their son’s life, the women and children lived together as a family, but E.T. decided to end the relationship in January 1995, and gave H.M. a check for $1,500 to help her cover the costs of moving out and finding a home for herself and the child. Although E.T. gave some gifts over the ensuing years, she never paid child support. H.M. cared for the child on a minimal income while completing her own education and earning a master’s degree in social work.

A reconciliation was attempted in 1997, but was unsuccessful, and eventually H.M. moved with her son to Canada to live with her parents. In 2006, she filed for bankruptcy, and also filed a "support application" with a local court in Ontario, Canada. Under the Uniform Interstate Family Support Act (UIFSA), the matter was referred to the Rockland County Family Court to assert jurisdiction over E.T., but E.T. objected to the court’s jurisdiction, arguing that the family court lacked authority to determine that a woman who is not legally or biologically related to a child is subject to a parental support obligation.

The matter was referred to a Support Magistrate, who agreed with E.T., but H.M. filed objections to the magistrate’s report, and Family Court Judge Warren was persuaded by her arguments that she was entitled to a hearing, at which she could attempt to prove through the doctrine of equitable estoppel that E.T. should be precluded from denying her parental obligation. E.T. appealed to the Appellate Division, 2^nd Department, which has jurisdiction over appeals from Rockland County.

The majority of the court agreed with the Support Magistrate that the Family Court lacked jurisdiction over the matter. The court pointed out that support proceeding arise under Article 5 of the Family Court Act, which authorizes a court upon the application of a child’s mother to determine paternity for purposes of determining parental child support obligations, but that the heavily gendered language of the statute does not specifically authorize the court to determine that a woman might have such a support obligation.

Justice Covello wrote that "as the Support Magistrate recognized, Family Court Act article 5, entitled ‘paternity proceedings,’ only provides a vehicle for resolving controversies concerning a male’s fatherhood of a child. At common law, the father of a child born out-of-wedlock had no duty to support that child. Family Court Act article 5, providing for paternity proceedings, represents the most recent legislative effort to mitigate the harsh effects of that rule. Consistent with that goal, the plain language of numerous provisions of Family Court Act article 5 clearly and unambiguously indicates that a proceeding thereunder will only involve a controversy concerning a male’s fatherhood of a child."

In dissent, however, Justice Balkin noted that other provisions of the Family Court Act suggest that gender-neutral interpretations can be adopted when necessary to protect the best interests of a child, and that courts in many other states – most notably the California Supreme Court – have interpreted similarly gendered family law statutes to be gender neutral in order to meet the needs of modern-day "nontraditional" families.

But the majority insisted that as the family court is a court of limited, specific jurisdiction, it does not have power to determine an issue that is not specifically assigned to it by a statute or the constitution. "H.M. has demanded certain relief the Family Court is not specifically authorized by the Constitution or statute to grant," wrote Covello. "Under these circumstances, the Family Court cannot apply the doctrine [of estoppel], and necessarily cannot reach the issues of whether E.T. should be estopped from denying her parentage of the subject child, and whether estopping E.T. from denying her parentage of the child would be in the child’s best interests. If the Family Court applied the doctrine as a means of granting relief not specifically authorized by the Constitution or statute, that would be tantamount to the Family Court granting equitable relief." The court pointed out that the family court has not been granted authority to award equitable relief, a power reserved to the supreme court, the court of general trial jurisdiction in the state.

The majority suggested that H.M. should have brought an action in the supreme court, but the dissent pointed out that under the state’s family law statutes, only the family court was authorized to issue a child support order pursuant to the Uniform Interstate Family Support Act, so the supreme court might itself be powerless to act.

Criticizing the majority’s unduly literal interpretation of the statute, Justice Balkin pointed out that under this view two gay men who used a surrogate to have a child would be deprived of the family court’s jurisdiction to resolve a child support dispute, and, even more to the point, a man who discovered a foundling on his doorstep would be deprived of the family court’s assistance in seeking to prove that a particular woman with whom he had a past sexual relationship was the child’s mother. She also suggested that in our modern era of equal protection jurisprudence, interpreting the statute to apply to one sex and not the other would raise serious constitutional issues that could be avoided by a gender-neutral interpretation of the statute.

"Regardless of how a child enter this world, ‘a child is born in need of support,’" wrote Justice Balkin. "As a matter of public policy, a determination should be made as to whether E.T. is responsible for the support of the child, given that H.M. has already declared bankruptcy, and E.T.’s support obligation could otherwise fall to the public fisc. We would, therefore, affirm the order appealed from, which did little more than allow H.M. to attempt to demonstrate, at a hearing, that E.T. should be equitably estopped from asserting a right not to support the child whose conception and birth she so strongly encouraged."

The court’s opinion dramatically illustrates the inadequacy of New York’s archaic family law statutes, which our dysfunctional state legislature has never seen fit to revise to accommodate the realities of family life in the modern New York. And, as the dissent points out, the ruling is out of step with developing precedents in other states, and inconsistent with recent New York appellate rulings, including a case in which the highest court used equitable estoppel to impose a child support obligation on a man who was not legally or biologically related to a child on the ground that he had held himself out as the child’s father.

As H.M. is represented by pro bono counsel from the prominent New York City firm of Proskauer Rose LLP, it is likely that permission to appeal to the Court of Appeals will be sought.

Lilburn Alert - Guitar Music on Naxos

At this late date, I thought I had heard all the music composed by Douglas Lilburn, one of my favorite 20th century composers.  But the New Zealander had surprises in store, and all admirers of his music can thank Naxos for having recorded his music for solo guitar with Gunter Herbig on a new release.  Because Lilburn's guitar music amounts to about 35 minutes, they have filled out the disc with music by another New Zealand composer, a slightly younger contemporary of Lilburn named David Farquhar, some of whose music I have also head before (but none for the guitar).

It seems form the program notes enclosed with the disc that there is a tradition of guitar music by New Zealand composers inspired by the emigration in the late 1950s of an English guitar virtuoso, Ronald Burt, and in the 1960s Emile Bibobi, and then later John Mills.  The arrival of guitarists, who taught in the NZ music schools, inspired the local composers to begin composing music for the instrument.  Over the course of the 1960s, Lilburn, who was otherwise fully engaged in exploring electronic music, spun out 17 pieces for guitar, which were collected in an album for Burt in 1975.  This is claimed to be their first complete recording.  In addition, Herbig has uncovered several unpublished pieces, including transcriptions of the Four Canzonas for string orchestra.  From Farquhar, there is a five-movement suite and a fantasy called "Prospero Dreaming."

The Brazilian-born Herbig has been one of the many fine contributors to Naxos's large collection of solo guitar recordings.  Since he lives and teaches in New Zealand, this disc is a natural for him, and the performances seem quite fine.  On a first listen, I would say that Lilburn's characteristic harmonic and rhythmic tropes seem to be missing from many of these pieces.  The particular character of the guitar inspired him to explore new genres.  I think he makes less use than he might of the instruments abilities for harmony and counterpoint, but everything here is interesting, and those who appreciate his music should find much to enjoy.  The Farquhar pieces made less of an impression on first hearing, but everything on the disc seems user-friendly and I look forward to listening again and becoming better acquainted with this music.

Thank-you, Naxos, for all Lilburn-admirers.

Next to Normal (plot spoilers)

Attended a performance of the Broadway rock musical "Next to Normal" tonight.  I thought this was excellent, with a strong cast, a strong score, and an interesting, dramatic story.  The premise is a middle-aged couple bedeviled by the death 17 years earlier of their infant son.  They had quickly had another child, a daughter, who grew up starved for love, as neither parent seemed to be able to get close to her.  The loss of her son sent the mother over the deep end, to the point where an imaginary 18-year-old son is prancing across the stage and romancing her, distancing her from her husband, who by the end of the show is seeing the lad as well.  Mom goes through various kinds of treatment - drugs, psychotherapy, electric shock - but nothing really shakes her out of this obsession...  At any rate, the story is gripping, and I found myself fully absorbed and quickly joining in the standing ovation at the end.

The cast is uniformly excellent.  Alice Ripley as the mother and J. Robert Spencer as the father are absolutely unforgetable.  Aaron Tveit as the teenage "ghost" is a marvel -- what a lovely high tenor voice, and what sinuous movements all over the three-story unit set -- and Jennifer Damiano as the daughter projects just the right degree of teenage angst.  Also quite fine are Adam Chanler-Berat as her boyfriend, and Louis Hobson as two doctors who try to cope with the mother's problems.  The staging is quite fluid, well choreographed, the direction clear and direct, the musicians awesomely good.

This is the best musical I've seen since Spring Awakening.... And I thought the music, by Tom Kitt, closely resembled the score of Spring Awakening, but since I'm not a rock fan, it all tends to sound a bit alike to me.  I'm sure this score has its own distinct sound to those fluent in the genre.  Definitely worth going to this one.  I had been scared off by the subject matter, but a friend who saw it recommended it strongly, and I took advantage of a discount offer.  I'm glad I went.

California Supreme Court Rejects Challenge to Prop 8, But Upholds Existing Same-Sex Marriages

The California Supreme Court ruled today in Strauss v. Horton, 2009 Westlaw 1444594, that Proposition 8, the measure approved by California voters on November 4 to amend that state’s constitution to provide that only marriages between a man and woman would be "valid or recognized in California," was not subject to attack as an improper constitutional "revision," and thus was properly enacted through the initiative amendment process. Only one member of the court, Justice Carlos Moreno, dissented from this conclusion.

However, the court unanimously ruled that those couples who married in reliance on its May 15, 2008, marriage decision, between mid-June and November 4, had "vested rights" in their marital status that could not be retroactively invalidated without raising serious due process concerns. Therefore, those marriages remain valid in every respect.

Chief Justice Ronald George wrote for the majority of the court, producing a decision signed by five judges of the seven-member bench. Justice Kathryn Mickle Werdegar wrote a separate opinion, agreeing with the court’s conclusion that Prop 8 was validly enacted, but differing from the majority’s formulation of the appropriate test for determining whether a proposed amendment is a revision.

Under the California Constitution’s amendment process, a proposal to amend the constitution by initiative can be placed on the ballot through petitions signed by a number of voters equaling at least eight percent of those who voted in the last election for governor. However, a proposal to revise the constitution may only get to the ballot through one of two procedures; either the legislature placing the proposed revision on the ballot through a process requiring a supermajority legislative vote, or through the mechanism of a state constitutional convention. Anything placed on the ballot, either an initiative amendment or a revision, requires only a majority of those voting to be enacted.

Proposition 8 was certified for the ballot shortly after the state supreme court ruled last May 15 that same-sex couples are entitled to marry, because the right to marry is a fundamental right, the exclusion of same-sex couples discriminates based on sexual orientation (held by the court to be a "suspect classification"), and the state could not provide a compelling reason to withhold from same-sex couples the right to marry. The court rejected the state’s argument that providing domestic partnership for same-sex couples, carrying almost all the rights of marriage, was sufficient to meet the state constitutional standard.

The proponents of Proposition 8 petitioned the court to delay implementing its marriage ruling until the election, but the court turned them down. On the other hand, opponents of Proposition 8 petitioned the court to throw the measure off the ballot as a "revision" rather than an amendment, but the court dismissed their petition as well. After Prop 8 passed with about 52% of the vote, several lawsuits were filed challenging it. Although the court refused to block the implementation of Prop 8 pending a decision, it did agree to expedite its consideration of the challenge, and heard arguments in March.

Chief Justice George’s opinion, although spanning 135 pages and engaging in extensive discussion of the initiative amendment process, essentially boils down to the assertion that in order to be a revision, a proposition must either significantly affect a large number of constitutional provisions, or must qualitatively produce a substantial change in the basic plan of California government. George found that Prop 8 affected only a handful of constitutional provisions by adding a 14-word definition of marriage to the constitution, so the measure would not be deemed a "revision" under the "quantitative test." As to the qualitative test, he found that Prop 8 did not substantially affect the basis plan of California government.

George reached this conclusion after asserting, as he had suggested in questioning during the oral argument, that Prop 8 had little effect on the provision of substantive legal rights to same-sex couples in California, where the legislature had previously provided for domestic partnerships that carry almost all of the rights, benefits and responsibilities of marriage under state law. While the Marriage Cases ruling in May 2008 made much of the significance of withholding the term "marriage," the new ruling minimized its significance.

This conclusion was premised on George’s interpretation of Prop 8 as doing no more than eliminating some terminology. He asserted that Prop 8 left intact the balance of last year’s decision, including the court’s holding that same-sex couples are entitled to all the rights and benefits of marriage. Thus, he insisted, the Domestic Partnership Law, which survives Prop 8, is not a matter of "legislative grace" but, after the Marriage Cases decision, a matter "of state constitutional right."

George indicated that in the wake of Prop 8, the substantive right to marry identified by the court last year should be re-characterized as the right to have legal recognition for a couple’s relationship that carries all the rights and benefits that are associated with marriage, but without using that term. George wrote that all that Prop 8 did was to "carve a narrow exception" out of the privacy, due process, and equal protection principles that the court had relied upon to decide the Marriage Cases last year, and that the exception did not have a substantial enough impact to constitute a change to the basic plan of government.

"Quantitatively, Proposition 8 unquestionably has much less of an effect on the preexisting state constitutional scheme than virtually any of the previous constitutional changes than our past decisions have found to constitute amendments rather than revisions," George asserted, citing past rulings upholding amendments on the death penalty, local government taxing authority, and other significant policy issues.

George found Attorney General Jerry Brown’s separate challenge to Prop 8 as an improper attempt to modify an "inalienable right" as "flawed" and based on long-discredited 19^th century natural law theories. George found no support for the contention that rights identified in Article I, Section 1 of the state constitution as "inalienable" were somehow insulated from the initiative amendment process, pointing out several past occasions on which the court had upheld amendments modifying rights derived from that part of the constitution.

The court also rejected the argument that Prop 8 violated separation of powers by in effect overruling the court's interpretation of the constitution, thereby usurping its function as the document's definitive interpreter. 

In her concurring opinion, Justice Joyce Kennard stressed the limited role of the court and the broad right of the electorate to amend the constitution. Denying any inconsistency with her vote last year, she said that then the court was interpreting the constitution as it stood then, but the people had a right to change the language of the constitution, making the prior interpretation obsolete.

Justice Werdegar disagreed with George’s conclusion that the court’s prior cases on the amendment/revision issue had clearly established a qualitative test limited to the impact of a proposition on the structure of government. She pointed out that past decisions had intimated that a significant impact on a fundamental right could also be deemed a revision. However, she agreed with George’s contention that Prop 8 did not have such an impact on the rights of same-sex couples to have legal recognition for their relationships.  And, she noted, inasmuch as the court held that Prop 8 did not overrule the court's conclusion that same-sex couples are entitled to all the same rights and benefits as opposite-sex couples, the legislature remains constitutionally bound to revise the domestic partnership law to remove any remaining distinctions between domestic partnership and marriage.  One that she highlighted was the requirement under the domestic partnership law that the couple share a common residence, which, she noted, could be construed to designate such partnerships as inferior to marriage.

Justice Moreno seized upon the same prior cases as Justice Werdegar to dispute the court’s holding that the qualitative test extended only to the basic plan of government, but found that the court’s ruling had significantly undermined the guarantee of equal treatment by the government, and thus was actually a revision of the state’s equal protection clause, which he argued could not be accomplished through the initiative amendment process.

"I conclude that requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus ‘represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a "revision" of the state Constitutional rather than a mere "amendment" thereof,’" Moreno wrote. He went on to argue that the ruling was not just a defeat for same-sex couples, but for all minority groups who relied on the court to protect their right to equal treatment under the law.

He continued, "Denying the designation of marriage to same-sex couples cannot fairly be described as a ‘narrow’ or ‘limited’ exception to the requirement of equal protection: the passionate public debate over whether same-sex couples should be allowed to marry, even in a state that offers largely equivalent substantive rights through the alternative of domestic partnership, belies such a description. . . Describing the effect of Proposition 8 as narrow and limited fails to acknowledge the significance of the discrimination it requires. But even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the California Constitution since 1849. Promising equal treatment to some is fundamentally different from promising equal treatment to all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights. Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their ‘officially recognized, and protected family relationship’ a marriage, still denies them equal treatment."

Surprisingly, in light of the 5-4 vote last year, the court was unanimous in concluding that Prop 8 could not be read to retroactively invalidate the estimated 18,000 marriages of same-sex couples that had been performed prior to the passage of Prop 8. George invoked the principle that enactments are presumed to prospective unless there is some clear indication in the language of the proposition or its "legislative history" that would have communicated to the voters that they were being asked to invalidate existing marriages.

In this case, the proponents of Prop 8 argued that they had made clear in their election arguments that the measure was intended to deny recognition to same-sex marriages, "wherever and whenever" they were performed, but George found this inadequately clear, and pointed out that the proponents had never specifically argued during the election campaign that Prop 8 would invalidate existing same-sex marriages in California. He also rejected the argument that the present-tense phrasing of the amendment clearly communicated retroactive application.

Perhaps more significantly, the court was troubled by the idea that couples who had relied on its past decision and the state of the law at that time and gotten married could be retroactively stripped of that status. According to George, upon a marriage taking place the participants acquire "vested rights," and such rights cannot be taken away without due process of law. An election campaign and an initiative vote is not due process of law in this context. Taking together the disposition against retroactive application and the concerns over constitutional due process, the entire court united around the proposition that the same-sex marriages performed before Prop 8 was enacted must continue to be treated in California as valid marriages.

The court took no position about whether the state would have to continue to recognize marriages performed elsewhere during that window period of June 16-November 5 2008, stating in a footnote that none of the petitions presented to the court had raised the question.

[The text above was submitted to Gay City News for posting on its website.  Below are notes I made and quotes I copied as I was reading through the opinions.]

Selected notes and quotes from the opinions:

Decision for Court by George, signed by Kennard, Baxter, Chin, Corrigan.

Kennard (separate concur)

Werdegar concur on different theory

Moreno concur (on retroactivity) and dissent (on the rest)

Effect of Prop 8:

Prop 8 only removes the right to have the designation of "marriage" for a same-sex couple’s legal relationship.

The right to have all the legal rights and responsibilities of marriage apart from that terminology is not affected by Prop 8. The ruling last year in In re Marriage Cases establishes, therefore, that the Domestic Partnership Law remains valid, and that same-sex couples continue to have a state constitutional right to all the rights and benefits and responsibilities of marriage (apart from the word "marriage") in some form.

George: "Accordingly, although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated ‘marriage,’ in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, ‘the core set of basic _substantive_ legal rights and attributes traditionally associated with marriage,’ including, ‘most fundamentally, the opportunity of an individual to establish – with the person with whom the individual has chosen to share his or her life – an _officially recognized and protected family_ possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.’ (Marriage Cases, supra, 43 Cal.4th 757, 781.) Like opposite-sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right."

The court’s ruling that sexual orientation is a suspect classification is not affected by Prop 8, except for the narrow exception of the use of the term "marriage" for legally-recognized relationships of same-sex couples. "This exception – although constituting the governing state constitutional rule with regard to the specific matter it addresses – does not alter the general equal protection principles set forth in the Marriage Cases and in other California decisions interpreting and applying the state constitutional equal protection clause. Those principles continue to apply in all other contexts."

Amendment vs. Revision

To be a revision, a proposition must involve a change in the basic plan of California government, i.e., a change in its fundamental structure or the foundational powers of its branches.

Numerous substantive amendments have been upheld, even though they changed/overruled the Cal S.Ct.’s determination of fundamental rights, because they were found not to have changed the fundamental structure of the government - e.g., Prop 13 with its drastic revision of taxing authority.

"Quantitatively, Proposition 8 unquestionably has much less of an effect on the preexisting state constitutional scheme than virtually any of the previous constitutional changes than our past decisions have found to constitute amendments rather than revisions."

"Proposition 8 simply changes the substantive content of a state constitutional rule in one specific subject area – the rule relating to access to the designation of ‘marriage’. Contrary to petitioners’ contention, the measure does not transform or undermine the judicial function: California courts will continue to exercise their basic and historic responsibility to enforce _all_ of the provisions of the California Constitution, which now include the new section added by the voters’ approval of Proposition 8."

Court adopts a new gloss on its past case law, by rejecting argument that past cases did not restrict the amendment/revision distinction to propositions involving the structure of government. "In our view, a fair and full reading of this court’s past amendment/revision decisions demonstrates that those cases stand for the proposition that in deciding whether or not a constitutional change constitutes a qualitative revision, a court must determine whether the change effects a substantial change in the governmental plan or structure established by the Constitution."

"Under this standard, which has been applied repeatedly and uniformly in the precedents that govern this court’s jurisprudence, it is evident that because Proposition 8 works no change of that nature in the California Constitution, it does not constitutional a constitutional revision."

Court says petitioners have drastically overstated the effect of Prop 8, because it does not eliminate any substantive rights, merely the terminological right to call the relationship a marriage. Also emphasizes that the substantive rulings other than terminology in Marriage Cases remain in effect.

"Thus, except with respect to the designation of ‘marriage,’ any measure that treats individuals or couples differently on the basis of their sexual orientation continues to be constitutionally ‘suspect’ under the state equal protection clause and may be upheld only if the measure satisfies the very stringent strict-scrutiny standard of review that also applies to measures that discriminate on the basis of race, gender, or religion."

"A narrowly drawn exception to a generally applicable constitutional principle does not amount to a constitutional revision within the meaning of article XVIII of the California Constitution."

Does not mean to suggest that eliminating "marriage" for same-sex couples is "unimportant or insignificant," but points out that past amendments have also involved important or significant rights.

The issue is not whether an amendment introduces an important change, but rather whether it is so "far reaching and extensive" that the framers of the amending process would have considered it the kind of wholesale revision that should be reserved for a more difficult process.

Past amendments have abridged constitutional rights of minorities and women and were not challenged as revisions on that account.

Cites long history of people of California passing amendments by initiative to overrule constitutional decisions by the state courts, and rejects slippery slope argument that allowing Prop 8 to stand will lead to further initiatives taking away rights from minorities.

Notes that the same issue has been raised in other states with anti-marriage amendments, and all state courts to address it have rejected the revision argument.

Rejects separation of powers argument. Says the people are not relitigating Marriage Cases by voting on Prop 8. Instead, they are altering the state constitution so as to produce a different result. Relitigating would mean changing the meaning of the earlier existing constitutional language.

Brown’s theory is "flawed on a number of levels." Prop 8 does not "abrogate" an "inalienable constitutional right." It just "carves out" a "narrow exception," because same-sex couples retain all the fundamental rights previously acknowledged except the right to call their legal union a marriage. Designation in the constitution that a right is "inalienable" has never been held to insulate it from the amendment process.

The 19^th-century "natural-rights" arguments on which Brown relies "long has been discredited." Nothing in the constitution itself exempts Article I, Section 1 (the bill of rights) from the amendment process.

Impact on existing marriages:

First principle: in the absence of express statement to the contrary, all enactments are to be treated as prospective only.

Prop 8 does not contain a retroactivity provision, so must be construed to be prospective only "unless it is very clear from extrinsic sources that... the voters must have intended a retroactive application."

Rejecting intervenors argument: "The circumstance that the language of a measure is written in the present tense (‘is valid or recognized’) does not clearly demonstrate that the measure is intended to apply retroactively."

"Were Proposition 8 to be applied to invalidate or to deny recognition to marriages performed prior to November 5, 2008, rendering such marriages ineffective in the future, such action would take away or impair vested rights acquired under the prior state of the law and would constitute a retroactive application of the measure."

Intent of voters - neither official title and summary or voters’ guide clearly stated that Prop 8 would have retroactive effect. Not enough for proponents to have stated that Prop 8 would withhold recognition from same-sex marriages wherever and whenever performed - that is not clear enough, and the failure to say explicitly that it would invalidate marriages previously created under existing law is telling, since to do so might have lost support for the proposition.

Due process concern - depriving somebody of a vested right without due process of law raises state constitutional issues. Reliance on Marriage Cases until Prop 8 was passed was legitimate and created vested rights.

Kennard: "Although the people through the initiative power may not change this court’s interpretation of language in the state Constitution, they may change the constitutional language itself, and thereby enlarge or reduce the personal rights that the state Constitution as so amended will thereafter guarantee and protect." Stresses limited role of the court.

Werdegar:

Concurs, but disagrees with the court’s reasoning. Says the court has mischaracterized its past jurisprudence, which does not support the view that it was well established before today that a far reaching change in the basic plan of California government is necessary for a measure to be a revision. Emphasizes that past challenges to amendments have emphasized their impact on the powers of the judicial branch, not just far reaching changes in basic plan of state government.

"The history of our California Constitution belies any suggestion that the drafters envisioned or would have approved a rule, such as that announced today, that affords governmental structure and organization more protection from casual amendment than civil liberties."

Werdegar argues that a substantial change to a fundamental right could be deemed a revision, but she finds that Prop 8 does not make such a substantial change. Prop 8 only rejects one aspect of the Marriage Cases, the terminology point, and as majority says, leaves unaffected all the other substantive aspects of the decision, so it does not go so far as to revise the due process or equal protection clauses, merely to make narrow exceptions to them.

Moreno dissent:

Moreno: "I conclude that requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus ‘represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a "revision" of the state Constitutional rather than a mere "amendment" thereof.’" Moreno argues that court’s approach "places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority."

"The equal protection clause is therefore, by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect. Rather, the enforcement of the equal protection clause is especially dependent on ‘the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority.’"

"Denying the designation of marriage to same-sex couples cannot fairly be described as a ‘narrow’ or ‘limited’ exception to the requirement of equal protection: the passionate public debate over whether same-sex couples should be allowed to marry, even in a state that offers largely equivalent substantive rights through the alternative of domestic partnership, belies such a description." "Describing the effect of Proposition 8 as narrow and limited fails to acknowledge the significance of the discrimination it requires. But even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the California Constitution since 1849. Promising equal treatment to some is fundamentally different from promising equal treatment to all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights. Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their ‘officially recognized, and protected family relationship’ a marriage, still denies them equal treatment."

Moreno argues that the various developments and permutations in the initiative and amendment process was not intended to "prevent courts from performing their traditional constitutional function of protecting persecuted minorities from the majority will."

He agrees with Werdegar that the majority is announcing a new rule when requiring that a revision make a substantial change to the basic plan of government, saying that the question presented by this case has not previously been addressed.

"None of our prior cases considered whether an amendment to the Constitution could restrict the scope of the equal protection clause by adding language that requires discrimination based upon a suspect classification."

"The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution."

Who Will Teach the Commencement Speaker?

Today I attended the Vassar College commencement, to observe the graduation of my niece, Caroline (Cari) Adele Leonard.  The commencement speaker was Dr. Matthew C. Spitzer, a medical doctor and president of the U.S. chapter of Doctors Without Borders, an organization that rushes health care assistance to trouble spots around the world. 

Dr. Spitzer is an impressive individual, with an interesting resume, an extraordinary record of service, and important experiences to share.  But as a commencement speaker today he was a real flop.  I imagine that it would be the rare medical doctor who would be an ideal public speaker, since their education is devoted to other things than public speaking.  But if somebody from a profession that does not normally include lots of public speaking is recruited to give a commencement address, somebody from the inviting institution would do well to offer some guidance and assistance to avoid the kind of scene we had today.

The commencement was taking place outdoors.  Despite a dodgy weather prediction, it ended up being sunny and hot.  The commencement speaker was placed well along in the ceremony, after the seniors, administrators and faculty had paraded in and there had already been 4 speeches.  People were hot and parched.  And Dr. Spitzer droned on for more than half an hour with a speech that seemed like a collection of anecdotes and truisms without any overall structure or theme.  Many of the individual vignettes were interesting, and I'm sure there were points he could make that would be valuable for the graduating class.  But the speech he gave was hard to follow, not well enough organized to be effective, and full of trivial side-excursions to try the patience of the listeners.  Among the people with whom I spoke afterward, almost everyone was asking "what was the point of that?"

This is not to detract from Dr. Spitzer's accomplishments, or the valuable work that his organization does.  I have been a donor for many years and intend to continue being a donor.  But anybody who invited Spitzer to speak at a graduation ceremony should exercise some common sense and help him out with putting together a well-structured speech of appropriate length.

California Supreme Court to Rule on Proposition 8 on Tuesday, May 26

The California Supreme Court announced this afternoon that it will be releasing its decision in the Proposition 8 challenge litigation on Tuesday, May 26, at 10 am Pacific time.

Whatever happens, this will not be the end of the story.  If the Court finds that Proposition 8 was validly enacted, planning is already under way to bring a new initiative to attempt to repeal it.  If the Court upholds it on the challengers theory that it is a revision, then I expect the opponents will try to figure out some way to get it back on the ballot in a different form and using the revision process.  If the Court embraces Attorney General Brown's theory, then perhaps the opponents of same-sex marriage will be stymied... :))

Apart from the main holding, the Court will also address the question whether the same-sex marriages that were formed last year between June and November are valid.  If the Court finds that they were invalidated by the passage of Prop 8, some of those individuals might attempt a new legal challenge premised on Due Process or the federal constitution's contracts clause.... but who knows how that might go?

The Gay Agenda Takes Concrete Form - The Dallas Principles

The opponents of LGBT rights commonly harp on a "gay agenda" as something to be feared, as some nefarious scheming by sexual deviates seeking "special rights" of some unspecified sort.  As somebody who has been "out" in varying degrees for more than 30 years, I'd seen various manifestos and resolutions and program statements by a variety of gay organizations, but never thought that I was seeing any sort of definitive "gay agenda" that might be adopted as goals by the LGBT rights movement.  Now I have.

A bunch of self-identified activists held a meeting in Dallas and have adopted a formal written statement which they call "The Dallas Principles" and which is an attempt to state a concrete gay agenda.  For the full text, you can go to http://www.thedallasprinciples.org

Their statement has a prologue that insists that now is the time to move on the attainment of full LGBT civil rights.  The prologue is followed by a statement of 8 guiding principles, 7 "full civil rights goals," and a 7 point action plan.  In terms of a substantive gay agenda, the "full civil rights goals" are the heart of it, and I'm going to take the liberty of quoting in full here:

1.  Dignity and Equality.  Every lesbian, gay, bisexual and transgender person has inherent dignity and worth, and has the right to live free of discrimination and harassment.

2.  Family.  Every LGBT person has the right to a family without legal barriers to immigration, civil marriage or raising children.

3.  Economic Opportunity.  Every LGBT person has the right to economic opportunity free from discrimination in employment, public housing, accommodation, public functions, credit, and federally funded programs and activities.

4.  Education.  Every LGBT child and youth has the right to an education that is affirming, inclusive and free from bullying.

5.  National Security.  Every LGBT person should have the opportunity to serve our country openly and equally in our military and foreign service.

6.  Crime.  Every LGBT person should enjoy life protected against bias crimes.

7.  Health Care.  Every person should have access to affordable, high quality, and culturally competent health care without discrimination.

I found no grounds for dissent to any of this, and in fact thought a few of the points were a bit on the modest side.  (In particular, I would not restrict the goal of achieving non-discrimination in housing to "public housing."  Housing discrimination statutes generally extend to all transactions in residential real estate, including leasing apartments from private owners and the purchase of residential property, and I see no reason to restrict that goal to "public housing," which means housing owned or operated under contract to governmental authorities in order to provide housing to the poor.)   I would also note that we are at least part of the way there in some jurisdictions towards achieving many of the points on this agenda, but the focus of The Dallas Principles seems to be on the federal level, since they are really a call to the Obama Administration and the Democratic majorities in Congress, and are not focused on the states where, ironically, much of the work remains to be done on some of the most important points.

I have signed on to the statement, and I encourage others to go the website and do the same.

Ethan Coen's Hilarious "Offices"

Ethan Coen certainly has another off-Broadway hit on his hands with "Offices," now playing at Atlantic Theater Company's intimate house at 336 W. 20 Street in Chelsea, Manhattan.

Coen has written three vignettes of American corporate office life, peopling them with some wildly funny characters.  The result, as seen tonight by me and my usual theater-going friend, is witty, cutting, at times laugh-out-loud funny.  The cast is superb.  F. Murray Abraham is very much in his element here, and his supporting players are right there with him.  Actually, although he is the biggest name in the cast, others have more stage time and use it well.  The cast is a great ensemble team and they have the rhythm of all three pieces.

That theater has a certain nostalgic resonance for me, as it is where I was sitting on election night 2008 when I heard the presidential results.... an unforgettable experience.