The legal dream team of Boies and Olson join in challenging Virginia's ban on same-sex marriage. More justice and change is on the way...

The wisdom of Marge Simpson...

My home state of enchantment is on the brink...

...of marriage equality!

This week, The New York Times recognized the importance of Justice Anthony Kennedy in the forward march of equality for the LGBT. Kudos to this wise Republican judge

Surprising Friend of Gay Rights in a High PlaceBy Adam Liptik 

The San Francisco Gay Men’s Chorus sang “Give ’Em Hope” for a revered and in some ways surprising guest who shared a California stage with them last month: Justice Anthony M. Kennedy. 

Justice Kennedy was in San Francisco for an American Bar Association meeting, but he was also there to be celebrated by the men on the risers behind him. In remarks from the stage, San Francisco’s mayor, Edwin M. Lee, thanked the justice “for upholding the Constitution and justice for all” in his majority opinion in June in United States v. Windsor, a major gay rights victory. 

“Freedom is always a work in progress,” Justice Kennedy said in his own remarks, making clear that there was more work to be done.  

Justice Kennedy has emerged as the most important judicial champion of gay rights in the nation’s history, having written three landmark opinions on the subject, including this summer’s Windsor decision, which overturned a ban on federal benefits for married same-sex couples. Those rulings collectively represent a new chapter in the nation’s civil rights law, and they have cemented his legacy as a hero to the gay rights movement.“He is the towering giant in the jurisprudence of freedom and equality for gay people,” said Evan Wolfson, the president of Freedom to Marry and one of the architects of the political and legal push for same-sex marriage. 

That push has taken on momentum thanks to the Windsor decision, which gay rights groups are citing in challenges to state bans on same-sex marriage. On Thursday, the Internal Revenue Service said it would implement the Windsor ruling by recognizing the unions of all lawfully married same-sex couples, including those living in states that do not allow same-sex marriage. 

On Saturday, Justice Ruth Bader Ginsburg, who joined Justice Kennedy’s majority opinion in Windsor, became the first member of the court to officiate at a same-sex wedding. 

The praise now being showered on Justice Kennedy by gay rights advocates — and the deep disappointment of conservatives — would have been hard to imagine when President Ronald Reagan nominated him to the Supreme Court in 1987. Gay rights groups were more than a little wary then.

To read the complete article, click here

GOP is behind new Jim Crow-like laws designed to suppress minority voting

The party of Lincoln -- nowadays in name of only -- is looking for ways to suppress minority participation, and the U.S. Attorney General, Eric Holder, is rightfully pushing back. From the New York Times:

Attorney General Eric H. Holder Jr. on Tuesday entered the turbulent political waters of voting rights, signaling that the Justice Department would be aggressive in reviewing new voting laws that civil rights advocates say will dampen minority participation in next year’s elections.

This year, more than a dozen states enacted new voting restrictions. For example, eight — Alabama, Kansas, Mississippi, Rhode Island, South Carolina, Tennessee, Texas and Wisconsin — imposed new laws requiring voters to present state-issued photo identification cards. Previously voters were able to use other forms of identification, like bank statements, utility bills and Social Security cards.

Proponents of such restrictions — mostly Republicans — say they are necessary to prevent voter fraud that could cancel out the choices of legitimate participants. Opponents — mostly Democrats — say there is no evidence of meaningful levels of fraud and contend that the measures are a veiled effort to suppress participation by hundreds of thousands of eligible voters who lack a driver’s license.

There is no quantitative evidence that voting fraud is on the rise. So what is the intention here?

The GOP is doing everything it can legally to suppress the electoral participation of Democrat-leaning minority groups. For some this is just politics; for me this is morally wrong. And not surprising from the party of Nixon, Atwater, and Rove...

A sad development: GOP blocks a distinguished legal scholar to be a Federal appeals court judge largely over his views in support of marriage equality

Sometimes politics trumps justice. Read about it here.

My last post before I go back to sleep. On Dominique Strauss-Kahn...

I was having a set of weird dreams so I am hitting the reset by blogging at 1:30AM. But not for much longer.

I don't want to prejudge this guy but given that the reports are coming out that Dominique Strauss-Kahn has engaged in this type of behavior before, with a well-known French reporter as well as other hotel maids, at the moment I am not very sympathetic to his cause.

When powerful men believe that they can sexually abuse women, I get furious. That abused person could my mom, cousin or business partner. If Dominique Strauss-Kahn is guilty, his karma is going to be bleak.

On that note, good night, again.

Stanley Fish's NYTimes piece on what Supreme Court Justice Elena Kagan's first judicial opinion tells us

A Dollar Is a Dollar: Elena Kagan’s Style
By STANLEY FISH

When Elena Kagan was nominated by President Obama to be an associate justice of the Supreme Court, some observers speculated that she might be the long-sought liberal counterweight to Antonin Scalia, noted for his intelligence, his wit and his prose style. Of course it’s too early to tell, but Kagan’s dissent (her first) in Arizona Christian School Tuition Organization v. Winn would seem to give those distressed by the Court’s current direction some hope. (Scalia honed his rhetorical skills as a dissenter earlier in his career.)

The opinion itself is a predictable extension of the conservative majority’s practice of money laundering when it comes to Establishment Clause cases that involve financial aid to sectarian schools. At issue was an Arizona program that provides tax credits up to $500 for contributions to school tuition organizations, organizations that then turn around and give the funds to private schools, “many of which,” Justice Anthony Kennedy (writing for the majority) concedes, “are religious.” That the intention of the program is to funnel funds to religious schools doesn’t seem to be in dispute. In her dissent Kagan notes that “One STO advertises that ‘[w]ith Arizona’s scholarship tax credit, you can send children to our community’s [religious] day schools and it won’t cost you a dime.’”

Read more

Christine O'Donnell needs to study: the constitution of the United States!

This just in: Clarence Thomas’s wife "reaches out" to Anita Hill, asking for apology. That takes a lot of nerve & denial

Read this late breaking story here from the NYTimes.

ABC News quoted from the Mrs. Thomas' voicemail:

“Good morning, Anita Hill, it's Ginny Thomas,” it quoted from the voicemail. “I just wanted to reach across the airwaves and the years and ask you to consider something. I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband. So give it some thought and certainly pray about this and come to understand why you did what you did. Okay have a good day.”

Denial: homophobic bishop Eddie Long denies the sexual abuse accusations of four young men from his congregation in a spirited sermon

Nominee Elena Kagan, a highly qualified legal mind that's perfect for the Supreme Court

She joins many other qualified justices of recent years, including Roberts, Aliota, and Sotomayor, the last of which I agree with.

Remembering Iran's Neda

A justice for the people: retired Supreme Court justice David Souter on interpreting the Constitution as a living document

Justice Souter’s Class
By LINDA GREENHOUSE, from the New York Times

Justice David H. Souter left the Supreme Court nearly a year ago without really saying goodbye. There were no pre-retirement interviews of the sort that Justice John Paul Stevens gave to several journalists this spring. There were no farewell press conferences like those that several justices who retired during the 1980’s and 1990’s were willing to endure for the sake of placing their own codas on their Supreme Court careers.

And since Justice Souter has decided to keep his papers closed to the public for 50 years, few people in a position actually to remember his Supreme Court tenure (1990-2009) will be able to explore the archive and learn what conclusions this most private of public figures drew from his part in two decades of profound debate about the role of the court and the meaning of the Constitution.


David Souter at Harvard’s commencement on May 27.
So it was with a mixture of relief and something close to joy that I listened last week to David Souter’s commencement address at Harvard, his undergraduate and law school alma mater, which awarded him an honorary degree. (I was in the audience as a member of Harvard’s Board of Overseers; like the thousands of others seated at the outdoor gathering, I had no idea what to expect.)

As a matter of immediate impact, this was not a speech to rival Secretary of State George C. Marshall’s announcement, in his Harvard commencement address in 1947, of his plan for the reconstruction of postwar Europe. Nor is it likely to attain the resonance of Winston Churchill’s declaration the previous year, upon receiving an honorary degree at Westminster College in Fulton, Mo., that the cold war had begun and that “an iron curtain has descended” across Europe.

But for those who care about the Supreme Court, Justice Souter served up some rich fare: his own vision of the craft of constitutional interpretation and a defense of the need for judges to go beyond the plain text — what he called the “fair-reading model” — and make choices among the competing values embedded in the Constitution. Doing this was neither judicial activism nor “making up the law,” he said; rather, it was the unavoidable “stuff of judging,” and to suppose otherwise was to “egregiously” miss the point of what constitutional law is about.

His stance was modest — “Over the course of 19 years on the Supreme Court, I learned some lessons about the Constitution of the United States,” he began — but the prose was muscular, in contrast to the writing style in many of his opinions. The “notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly” is not only “simplistic,” he said; it “diminishes us” by failing to acknowledge that the Constitution is not just a set of aphorisms for the country to live by but a “pantheon of values” inevitably in tension with one another. The Supreme Court may serve no higher function than to help society resolve the “conflict between the good and the good,” he suggested:

A choice may have to be made, not because language is vague, but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.

Justice Souter named no contemporary names. He did not mention Justice Antonin Scalia, whose “originalist” doctrine of constitutional interpretation made inroads in recent years, most notably in the 2008 decision, from which Justice Souter dissented, declaring an individual right to gun ownership under the Second Amendment. But I have to think he had Justice Scalia in mind when he observed that “behind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair-reading model seems to promise.”

Justice Scalia has acknowledged as much himself, in a famous law review article he published in 1989, three years after he joined the court. Titled “The Rule of Law as a Law of Rules,” the article in The University of Chicago Law Review asserted that judges need clear rules, rather than malleable balancing tests of the sort favored in modern constitutional law, in order to avoid straying into the realm of personal preference. By announcing a clear rule of decision, Justice Scalia wrote, “I not only constrain lower courts; I constrain myself as well.” He added, “Only by announcing rules do we hedge ourselves in.”

Justice Souter said he well understood, and indeed had shared, that “longing for a world without ambiguity, and for the stability of something unchanging in human institutions.” But he said he had come to accept and even embrace the “indeterminate world” in which a judge’s duty was to respect the words of the Constitution’s framers “by facing facts, and by seeking to understand their meaning for the living.”

Neither did he refer to his own successor, Justice Sonia Sotomayor, who during her Senate confirmation hearing last summer professed her “rigorous commitment to interpreting the Constitution according to its terms,” and to deciding cases “with the law always commanding the result in every case.” But he did note that with another confirmation season approaching, “we will as a consequence be hearing and discussing a particular sort of criticism that is frequently aimed at the more controversial Supreme Court decisions: criticism that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties.”

He framed the speech as a rebuttal to those criticisms and he discussed in some detail two historic cases, both from decades before his own tenure. One was the Pentagon Papers case from 1971, which required the court to weigh “a conflict of approved values”: the government’s claim that national security required publication to be suppressed versus the claims of The New York Times and The Washington Post that the First Amendment gave them the right to publish the government’s secret history of the war in Vietnam. The First Amendment prevailed.

The other decision was Brown v. Board of Education, the 1954 school desegregation case, which Justice Souter invoked for a different point. Contrasting Brown with Plessy v. Ferguson, the 1896 decision that interpreted the 14th Amendment’s guarantee of equal protection as permitting “separate but equal” public facilities for blacks and whites, Justice Souter said the difference between the two was not one of competing constitutional values but of “the subtlety of constitutional facts.”

The justices in both cases intended to uphold the guarantee of equal protection, he said, but diverged in how they understood the meaning of legally mandated separation. To the post-Civil War generation that upheld segregated railroad cars, “the formal equality of an identical railroad car meant progress” in light of how recently slavery had been abolished, he noted, while by 1954, a court that was still composed entirely of white men understood that enforced segregation “carried only one possible meaning,” a constitutionally unacceptable judgment that blacks were inferior to whites.

In other words, Justice Souter continued, the meaning to the justices of the fact of segregation had changed. “The meaning of facts arises elsewhere and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own,” he said, providing a pretty good working definition of empathy. “Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page.”

“Was it activism to act based on the current meaning of facts that at a purely objective level were about the same as Plessy’s facts 60 years before?” he asked. “So much for the assumption that facts just lie there waiting for an objective judge to view them.”

Justice Souter could, of course, have gone on to say more — to leave the safe zone of Brown v. Board of Education and, for example, to offer some thoughts on how a changed judicial appreciation of facts led the court seven years ago, in Lawrence v. Texas, to repudiate a recent precedent and to begin to build a constitutional framework for gay rights. There are obviously many current controversies, from abortion to criminal sentencing to the war on terrorism, that fit Justice Souter’s construct and on which a more adventurous retired justice might have been tempted to comment.

I wrote earlier in this column that I responded to Justice Souter’s speech with feelings of relief and joy. The relief came from seeing that this thoughtful man, a young 70, has not retreated fully into the privacy he cherishes, but was willing after all to share his wisdom. The joy came from supposing that he might keep on doing it.

This is what happens when corporations are accorded the same rights as people: the example of Exxon Valdez

Watch CBS News Videos Online

Former priest and sexual abuse "fixer" tells how the Church protected its "shepherds" not its "sheep"

While driving around in LA today, I heard the most riveting account from an insider in this Catholic priest sex scandal. The segment, "The Confession," is so insightful and worth listening to, as this former priest, Patrick J. Wall, tells all about his role as a trouble-shooter for the Church as it tried to cover up its numerous priest scandals, all while the protecting the hierarchy and assets of the institution (and not doing much for the victims).

Also, one of the best movie documentaries that I have ever seen is this Oscar nominated film, an up-close-look at a predatory priest who was moved from church to church in California, sexually-abusing countless kids: http://www.youtube.com/watch?v=scW90Q6Z_OM

Supreme Court Scalia: an intellect in service to condoning discrimination, not to providing justice

It is sad that this Supreme Court Justice misuses his keen intellect to argue for a fundamentalist interpretation of the Constitution, called "originalism", and against the civil rights for gay Americans. His malice and prejudice against gay people blinds him in dispensing justice. Here is his latest shot at LGBT people, in a lecture at Ohio State University this week:

“My burden is not to show that originalism is perfect but to show that it beats the other available alternatives. Did any provision of the Constitution guarantee a right to abortion? No one thought so for almost two centuries after the founding. Did any provision in the Constitution guarantee a right to homosexual sodomy? Same answer.”

Clearly, intelligence and wisdom are not the same thing. Like anyone who divides humanity (versus unites them), including those past justices who sanctioned slavery, segregation and other forms of discrimination, he will not be remembered as a great justice, just a mean-spirited one.

Not OK to hate gays anymore: Obama signs bill

Today, we advanced as a country and as human beings. Despite stiff opposition from the party of "No", the GOP (35 Republican Senators voted against it), President Obama signed into law a major expansion of the Hate Crimes act, to protect some of the most vulnerable and marginalized members in our society, LGBT people. Matthew Shepard's parents were on hand to witness this historic event. This new law goes to the heart of the promise of this country, "with liberty and justice" for all. It was a good day for America.