Republican Race: Watch George E. Pataki

In the Republican Presidential race, those who place bets on such things have given Mitt Romney the edge from the beginning. Romney has not given them much reason to be confident: his continual (and silly) lurching to the right on every imaginable issue to appeal to the party base, coupled with a constant stream of verbal gaffes and inability to ‘connect’ with voters, has resulted in a performance that can be described, at best, as lackluster. Even when he wins, polls show that those who vote for him do so out of a sense of inevitability and without much enthusiasm.

In spite of his narrow win in his home state of Michigan, he actually split the delegates from that state on an even 50-50 basis with Rick Santorum. Next week’s “Super Tuesday” will see Romney losses in southern and western states…with more southern states (Alabama and Mississippi) lined up for votes on March 13.

The prospects of a brokered convention – and the possibility of the Republicans choosing a yet-unnamed candidate – is growing by the minute.

So, let me be the first to say it:

Watch George E. Pataki.

Pataki may have been flying under the electoral radar all season, but he has been a very busy man.

On February 13, Pataki issued the following statement:

“The Obama administration continues to govern in its own Bizarro World that fails to recognize the devastating impact of the debt crisis we face. Today’s election year budget with another staggering trillion dollar plus deficit is a clear sign that the Obama administration has given up on even the facade of fiscal restraint and is content to bankrupt America in a cynical bid to save his political career. Jack Lew is right about one thing, the time for austerity is not today, it was last week and last year. It’s not halftime in the debt crisis; we’re in sudden death overtime and the clock is ticking down on our ability to effectively address this issue. President Obama must get real and revive the recommendations of the Simpson Bowles Commission.”

While slamming President Obama in the national debt on one hand, he has operated as the quintessential New York establishment Republican on the other hand: he has managed to take an anti-public employees union position (to the cheers of conservatives), while allying himself with a liberal Democrat (New York’s popular Democratic Governor Andrew Cuomo). On Sunday, Pataki told the NY Daily News that the New York State public employees pension system needs to be changed:

“In this case, I think it’s clear the governor’s efforts to reform the pension system are correct and necessary. What we’ve seen is just an enormous increase in the contributions required by government employers.” The result, he said, is “continued spiraling upward [of property taxes] that is not sustainable. It’s wrong and I would hope the reform movement will succeed and will succeed this year."

Anti-Government Spending. Anti-Taxes. Anti-Public Employee Unions.

All while supporting a popular Democratic Governor.

These are not the positions of a casual commentator. These are the positions staked out by a shrewd politician.

The challenge for any Republican candidate for President is to hold on the conservative GOP base, while attracting moderate independents, and maybe even gathering some liberal support. This is standard politics for Pataki, who managed to govern one of the most reliably Democratic states in the country – New York – for twelve consecutive years (1995-2006).

For red-meat conservatives, Pataki offers solid credentials on some specific issues: Having been trusted to introduce George W. Bush at the Republican Nominating Convention, he was then appointed by Bush as a United States delegate to the 2007 United Nations General Assembly session, a post that required (and received) the approval of the U. S. Senate. In that post, Pataki focused on terrorism. He continues to serve on the Board of Directors of the American Security Council Foundation, a neo-conservative, pro-military-industrial complex “Peace Through Strength” advocacy group. The Foundation’s positions are entirely consistent with the saber-rattling words uttered by Gingrich, Romney and Santorum throughout the primary season.

But in contrast to Romney, whose Massachusetts health care plan (“Romneycare”) was the precursor and model for the federal “Obamacare,” Pataki has strongly (and credibly) opposed the Obama plan, much to the delight of the conservative Republican base: Two years ago (April 2010) Pataki announced that he was creating a nonprofit organization, “Revere America,” to push for the repeal of the Patient Protection and Affordable Care Act, which he called "horrific" and a “costly bungle.”

Like a good New York statesman, though, Pataki has been careful not to lurch to the right on every issue, thus preventing him from being pigeonholed as a fringe conservative. After serving as Governor, Pataki joined Chadbourne & Parke, a law firm that emphasizes its renewable energy practice. He then formed the “Pataki-Cahill Group,” an environmental consulting firm, and worked with the Council on Foreign Relations on climate change issues.

Probably the most important environmental initiative in the northeast – the Regional Greenhouse Gas Initiative, or “ RGGI” – was the brainchild of George Pataki, and a project he implemented while Governor.

The RGGI uses market-based mechanisms to make dirty power plants pay for their pollution and clean up their act while simultaneously investing their payments in clean energy. The concept of the program is simple: Put a limit on power plant pollution, make polluters pay for the global warming emissions that they spew into the air, and reinvest that money in clean energy construction projects. These projects create jobs, reduce U.S. addiction to foreign crude oil, and reduce pollution. It is largely regarded as a win-win for the economy and the environment. It was promoted by both Republicans and Democrats from 10 states stretching from Maine to Maryland. And it was spearheaded by Pataki.

Anti-Tax, Anti-Spending, Anti-Debt, Anti-Obamacare, Pro-Military.

Pro-Environment, Pro-bipartisan, with Foreign Affairs (UN) experience.

Fiscal Conservative, Social Moderate.

Did I mention that at age 67, it’s now or never for Pataki? And that he has a Political Action Committee?

You read it here first: Watch for a Republican Convention without a conclusive nominee. And watch for George E. Pataki.

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Michigan: Microcosm of a Schizoid Electoral Process

Regardless of whether Romney or Santorum ultimately win the Michigan Primary, the true lesson of this campaign is the schizoid nature of American electoral politics.

By all measures, Michigan is a Democratic-leaning state with moderate to liberal values. The state has voted Democratic in all five of the last five Presidential elections. 25% of the state is a member of a minority (largely black and/or Hispanic). In this post-9/11 era, Michigan is home to the largest per capita percent of Arab-Americans in the nation: 40% of the city of Dearborn claims Arab ancestry, and many of these families have lived in Dearborn for three generations. Unlike the rest of the nation, where the percent of union members in the labor force has fallen to single digits, 16.5% of this state’s workforce is unionized.

And yet, in the 1972, the Democratic Primary in Michigan was won by George C. Wallace – the Segregationist Governor of Alabama famous for uttering the phrase "segregation now, segregation tomorrow, segregation forever!” in his gubernatorial address. A Governor who stood in the doorway at the University of Alabama to prevent black students from entering.

Let me say that again:

A southern Segregationist…

Won the Democratic Primary…

In the Canadian-border state of Michigan.

And this reveals the odd nature of the American process of electing Presidents.

There are, essentially, two different campaigns that take place: early in the process, candidates seek to win the nomination of their own political party. In this stage, they know that they need to appeal to the most dedicated, passionate ideological minorities within their party: those most likely to get red in the face and froth at the mouth when discussing ideas, no matter how ivory-tower or unrealistic those ideas are. We see this occurring right now, as Santorum and Romney trip over themselves and each other trying to prove that they are the most extreme as they appeal the party extremists.

Thus, Romney insists that he is “severely” conservative, and insists that marriage should be between a man and a woman (even as he governed Massachusetts as it established Marriage Equality). Santorum continues to raise the issue of contraception, an issue that hasn't been a serious electoral issue for over 40 years, and question, in coy ways, the President's religion. Both candidates beat the war drum on Iran.

But then, they are not seeking the support of the general electorate: they are seeking the fringe activists who will influence the primary.

As an example, Santorum swept the entire state of Missouri in their Primary just a few weeks ago; but that landslide win was achieved by attracting a relatively small number of very passionate voters. A grand total of 252,000 votes were cast in the Missouri Primary; by contrast, in the 2008 general election, 2,887,000 Missourians cast vote. In other words, a mere 8.7% of total active electorate handed Santorum his Missouri victory. One wins a primary by appealing to the most extreme and rabid elements in the party.

But that’s not how general elections are won.

The second ‘stage’ in the election, after each party has nominated their candidate, happens when each candidate rushes to the middle in the hope that most Americans will forget the ridiculous things they said during the primary.

In fact, most Americans are not harshly ideological. Many voters ultimately cast their vote based on how they “feel” about a candidate: his or her courage, honesty, consistency, “presidential look,” empathy, and how they can identify with his or her ‘story.’

And so, we have watched Mitt and Rick act like fruitcakes, beating their breasts and howling the most extreme, fringe comments their speech-writers could invent in an effort to win the Michigan Primary.

But in the end, it really doesn't matter who wins this Primary. In November 2012, regardless of whether Santorum or Romney or some other character is the GOP nominee, Michigan will hand its 16 electoral votes to President Obama…and the only thing Romney and Santorum will have to show for their primary fight are ridiculous statements that will make average Americans shake their head in disbelief for elections to come.

Santorum Wrong (Again) on Religious Faith and the Environment

In Rick Santorum’s world, the most pressing political issue this week was Proper Theology. From questioning President Obama’s position on the environment to criticizing college life for ruining student’s religious faith and criticizing President Kennedy's affirmation of the separation of church and state, Santorum provided a non-stop litany of statements that are both factually and theologically erroneous.

He charged this past week that President Obama's call for college enrollment for all was driven by a desire to impart liberal ideology on young adults. In recalling his own stint at Penn State, he said, "You are singled out. You are ridiculed. ... I was docked for my conservative views. This is not a neutral setting." He repeated the claim Sunday on ABC’s This Week, insisting that “62 percent of kids who enter college with some sort of faith commitment leave without it.”

Fact Check: He is, of course, entirely incorrect. As a general principle, almost all students who leave home and exit from life under mom and dad engage in some real soul-searching about their belief systems. But a 2007 study published in the Social Forces Journal found that Americans who don’t go to college lose their faith at a greater rate than those who do. The Journal noted,

“Contrary to our own and others’ expectations…young adults who never enrolled in college are presently the least religious young Americans. 64 percent of those currently enrolled in a traditional four-year institutions have curbed their attendance habits ... [while] 76 percent of those who never enrolled in college report a decline in religious service attendance.”

A year earlier, a poll conducted by the Harvard University Institute of Politics at the John F. Kennedy School of Government found that seven out of ten of America’s college students believed that religion is somewhat or very important in their lives. In contrast to Santorum's claims, it further found that “a quarter of students (25%) say they have become more spiritual since entering college, as opposed to only seven percent (7%) who say they have become less spiritual.”

So Santorum’s claim that liberal colleges destroy the faith of students is contradicted by the professional studies on the matter and the testimony of the students themselves.

But perhaps Santorum sees their faith being ruined because he doesn’t like the liberal spin on their theology. Again, this week, he claimed that President Obama's "agenda is driven on a theology not based on the bible. " When pressed on his claim, he explained,

“I just said that when you have a world view that elevates the Earth above man…I was talking about the radical environmentalists. That's why I was talking about energy, this idea that man is here to serve the Earth as opposed to husband its resources… I think that is a phony ideal.”

Washington Times columnist Jeffrey T. Kuhner expounded on Santorum’s statement, declaring outright that Obama

“worships a neo-pagan religion and is not a true Christian:
Mr. Santorum’s larger point is that Mr. Obama and his liberal allies have embraced radical environmentalism – a form of neo-paganism. The green movement – exemplified by the hoax of man-made global warming – has degenerated into a pseudo-religion. Environmentalists worship Gaia, Mother Earth, turning it into a secular goddess..”

Unfortunately for the devoutly-Catholic Santorum and his ally at the Washington Times, it is they who are Theologically in err, not President Obama.

This morning, I read aloud the Episcopal Church’s Old Testament lesson appointed for today, the first day of Lent in the western Church. That lesson is Genesis 9:8-17, which reads [emphasis added]:

“God said to Noah and to his sons with him, "As for me, I am establishing my covenant with you and your descendants after you, and with every living creature that is with you, the birds, the domestic animals, and every animal of the earth with you, as many as came out of the ark. I establish my covenant with you, that never again shall all flesh be cut off by the waters of a flood, and never again shall there be a flood to destroy the earth." God said, "This is the sign of the covenant that I make between me and you and every living creature that is with you, for all future generations: I have set my bow in the clouds, and it shall be a sign of the covenant between me and the earth. When I bring clouds over the earth and the bow is seen in the clouds, I will remember my covenant that is between me and you and every living creature of all flesh; and the waters shall never again become a flood to destroy all flesh. When the bow is in the clouds, I will see it and remember the everlasting covenant between God and every living creature of all flesh that is on the earth." God said to Noah, "This is the sign of the covenant that I have established between me and all flesh that is on the earth."

In this reading, we are confronted with a very clear theological notion of God’s covenant of peace with all of creation, not just mankind.

Accordingly, some years ago, Roman Catholic Pope John Paul II, in appealing to the example of St. Francis of Assisi, offered his prayer that "If nature is not violated and humiliated, it returns to being the sister of humanity." Comparable statements are found in "Renewing the Earth," a 1991 U.S. Council of Catholic Bishops document. The Council created accompanying resource kits (which it mailed three times to 19,000 parishes) with names like "God's creation and our responsibility" and "Renewing the Face of the Earth." The kits contained suggestions for prayer and worship with an emphasis on healing the environment and ideas for specific pro-environmental actions. The kits emphasized that justice for humans and justice for nature are inextricably intertwined.

Santorum claims that while in college, he was “docked for … conservative views.” It appears more likely that he was probably docked for his inability to support his opinions with facts.

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Rick Santorum's Lies re: Euthanizing of Dutch Seniors

For more than a decade, right-wing activists have engaged in a whisper campaign about health care in the Netherlands. Common statements have included faux-horror at the use of cost-benefit analyses in assigning treatment, criticism of corporate-sponsorship of hospital wings, and rumors of the forced euthanization of the elderly.

But the most recent instance of uneducated Euro-hating spewed forth from Republican Presidential candidate Rick Santorum, who has caused an international storm with baseless lies about the treatment of hospitalized seniors in the Netherlands. In a speech before the American Heartland Forum in Columbia, Missouri on February 3, Santorum said:

“In the Netherlands, people wear different bracelets if they are elderly. And the bracelet is: ‘Do not euthanize me.’ Because they have voluntary euthanasia in the Netherlands but half of the people who are euthanized — ten percent of all deaths in the Netherlands — half of those people are enthanized involuntarily at hospitals because they are older and sick. And so elderly people in the Netherlands don’t go to the hospital. They go to another country, because they are afraid, because of budget purposes, they will not come out of that hospital if they go in there with sickness.”

Santorum’s outburst most likely stems from his inability to understand a compassionate euthanasia law passed by The Netherlands over a decade ago. The law set forth a complex process which requires that two separate doctors diagnose an individual’s illness as incurable. The patient must have full control of his or her mental faculties, and must voluntarily and repeatedly request to die with the dignity afforded under the law. As a follow-up, a commission made up of yet a third doctor, a jurist and an ethicist must verify that the requirements for euthanasia have been met. In essence, it is a law that permits the medical community to assist a patient in the last days of their lives in accordance with the patient’s will.

The law was adopted after the publication of a 1991 study entitled the Remmelink Report, which found that a tiny number of hospital deaths (fewer than 1%) might be seen as “involuntary;” even in 59 percent of those cases, the physician had previously obtained some information about the patient’s wishes. In the vast majority of cases, “Life was shortened by between some hours and a week at most,” and the decision was discussed with relatives and with other medical colleagues. In nearly all cases, according to the report, “the patient was suffering unbearably, there was no chance of improvement, and palliative possibilities were exhausted.”

As few in number as these cases were, The Netherlands chose to adopt a set of guidelines for the health profession to follow in all cases. Today, the number of deaths attributed to patients and physicians following this procedure amounted to 2.3 percent of all deaths in the country. More than 80 percent of the patients were suffering from cancer, and almost 80 percent died at home, making the process only minimally different than the American approach of “allowing” patients to die at home, often with Hospice Care to minimize suffering.

But somehow, Rick Santorum blithely reported that half of Holland’s elderly were being sent to involuntarily death chambers. And as for those heart-rending “Do Not Euthanize me” bracelets - Well, they don’t exist, except in the minds of some of the right-wings more eccentric fiction-writers. A website known as Right Wing News published an article last year that claimed that over 10,000 Dutch citizens such cards. Their source was the Louisiana Right To Life Federation, who obtained their “information” from the Nightingale Alliance, an anti-euthanasia group. But this group claims it has no such actual figures.

In a statement from the Dutch Embassy, “According to the Ministry of Health, ‘Do not euthanize me’ bracelets do not exist in the Netherlands.”

Ironically, just one month ago, on December 20, 2011, the free-market-based Fraser Institute, a Canadian think-tank that follows health care issues and is often quoted by Republican politicians in the US, analyzed the Netherlands’ health system. They applauded The Netherlands health delivery and insurance system as a model system ("Are the Dutch Crazy Capitalists?"), and recommended that Canada reform its own system by adopting Holland’s approach. They concluded:

“…[I]n addition to achieving universality, choice has become one of the fundamental characteristics of the Dutch system…Under our current system, Canadian families cannot access insurance that best suits their medical needs. We can learn a lot from countries like the Netherlands but we can’t afford to wait much longer.”

Meanwhile, Former Wisconsin Senator Russ Feingold has lost all patience with Santorum. Feingold, who served with Santorum, responded by calling Santorum "extreme," and "hateful. " “Santorum is possibly the least tolerant person I've ever dealt with. His attitude towards people who are different from himself is shocking."

Onze excuses aan het Nederlandse volk.


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BREAKING: Senate Schedules Hearing to Reverse NDAA, invites Gitmo Attorney to Testify

The U. S . Senate Judiciary Committee has posted notice that it will hold a hearing on the “Due Process Guarantee Act: Banning Indefinite Detention of Americans,” a bill sponsored by California Senator Dianne Feinstein. The bill aims to reverse certain provisions of the recently passed National Defense Authorization Act of 2012 (“NDAA”) permitting the indefinite detention of American citizens without charge or trial. This provision of the NDAA has created a social media firestorm, and support for Feinstein’s bill is bi-partisan...but one never knows when the Republican minority in the Senate will pull a filibuster.

In what can only be viewed as a positive sign that the Committee is sympathetic to Feinstein’s bill, Committee Chair Sen. Patrick Leahy (D-VT) has issued a direct invitation to renowned civil liberties attorney Stewart “Buz” Eisenberg to offer testimony on the bill.

Under Section 1021 of the NDAA, the President is authorized to permit the military to detain any person "who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners," and anyone who commits a "belligerent act" against the U.S. or its coalition allies in aid of such enemy forces, under the law of war, "without trial, until the end of the hostilities.” The law further authorizes trial by military tribunal or transfer of the detainee to "any other foreign country, or any other foreign entity.”

Before NDAA was passed, Americans took to social media, opposing this wholesale destruction of almost all of the provisions of the U.S. Bill of Rights addressing criminal procedure, particularly the 6th Amendment, which states,

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

The provisions were included in a bill that was primarily meant to fund the military, so some legislators voted for the bill while expressing misgivings about the indefinite detention provision. In response, the Due Process Guarantee Act of 2011 was introduced as S.2003 in the Senate on December 15, 2011, and referred to the Judiciary Committee. (It has since also been introduced in the House where it is known as H.R. 3702, where it has already garnered 50 co-sponsors.) The bill specifically prohibits the indefinite detention of American citizens as permitted under NDAA.

The Committee has scheduled its first hearing for Wednesday, February 29 at 10:00 am in Room 226 of the Dirksen Senate Office Building. As is typical of Committee hearings, various experts have been invited to testify at the hearing; the invitation of Attorney Stewart “Buz” Eisenberg suggests that the Committee is willing to listen to the horrors of indefinite detention. Eisenberg is Of Counsel to Weinberg & Garber, P.C. of Northampton, MA, serves as President of the International Justice Network, and is a Professor of Civil Liberties at Greenfield Community College. Since 2004 he has provided direct representation to four detainees at Guantánamo Bay.

A March 22, 2008 article in the Daily Hampshire Gazette entitled “Mission: Guantanamo Justice ('Hell's Lobby')” by Kristen Palpini describes Eisenberg’s work with the people indefinitely detained in Guantanamo:

“ ‘There is torture at Guantanamo Bay’, said Eisenberg.

He claims to have seen the results - a crippled hand, men walking with permanent limps, others with physical disfigurements and mental scars.

‘There is little access to doctors for detainees,’ said Eisenberg.

One of his clients has a skin disease. Eisenberg suspects it is pellagra, a disease often associated with a lack of niacin or protein in a person's diet. The man's skin flakes off into small piles on the desk as Eisenberg talks with him.

There is no human contact for detainees beyond orders from soldiers, said Eisenberg. Detainees are kept in isolated cells almost 24 hours a day. Captives' cells are staggered so men are not within speaking distance of someone who would understand their language.

There is no rest at Guantanamo, said Eisenberg. The buzzing bulbs that light detainee cells and prison halls are never turned off.

This is hell's waiting room, as Eisenberg sees it, and he wants it shut down for good.

'The best way to close Guantanamo is to open Guantanamo,' said Eisenberg, who often speaks at colleges and forums about his Guantanamo Bay experience. 'Americans don't want this done in their name.'”

A year later, while still representing these clients, Eisenberg wrote an article for the Spring 2009 edition of the Northeastern Law Journal, Vol. 1, No. 1, entitled “Guantanamo Bay: Redefining Cruel and Unusual”

He writes,

“Representing Guantánamo detainee Mohammed Abd Al Al Qadir (Guantánamo Internee Security Number 284) has been an experience unlike any other of my legal career. While serving as counsel for Mr. Al Qadir (also known as Tarari Mohammed), …I encountered numerous obstacles unique to Guantánamo cases. Convoluted administrative procedures, allegedly implemented to protect national security, made representation difficult for lawyer and client alike.

In 2004, the U.S. Department of Defense issued procedures to assess the need to continue detaining enemy combatant detainees. Three years later, Tarari Mohammed was cleared for release or transfer. Nevertheless, he was still detained in Guantánamo Bay’s Camp 6 as of our March 20, 2008 visit. …[W]e saw our client shackled to the floor, as always, and immediately noticed he was wearing a white respirator on his face. The respirator was of the sort a contractor wears when working with toxic materials.”

Eisenberg continues to write about how Tarari had met with a representative of the International Committee of the Red Cross three weeks earlier, who brought a letter from his sister.

“The letter was the first and only communication our client received from any member of his family in over six years of detention. In the letter, Tarari’s sister informed him of their mother’s death…[she] had been distraught over her son’s detainment…At the conclusion of their meeting, the [Red Cross] representative told Tarari that his family had not received any letters from him. Tarari explained he had written and sent many letters during his detainment. The military never forwarded the letters.”

Cut off from his family and the outside world, Guantanamo guards accused him of spitting (a charge denied by Tarari), and then made him change from his white clothing (signaling a compliant prisoner) to an orange suit (signaling non-compliance) and forced him to wear the respirator as punishment for the supposed act of spitting.

Such is the nature of 7 years in detention, without charge, without trial, without access to the outside world.

This is the fate that could await any American citizen, at the hands of its own government, under the provisions of NDAA. And this is why the Due Process Guarantee Act is so critical to pass.

Call the Judiciary Committee Members. Insist that they pass DPGA.

Patrick Leahy (D-VT) [Chairman] 202-224-4242
Herb Kohl (D-WI) 202-224-5653
Dianne Feinstein (D-CA) 202-224-3841
Charles E. (Chuck) Schumer (D-NY) 202-224-6542
Dick Durbin (D-IL) 202-224-2152
Sheldon Whitehouse (D-RI)202-224-2921
Amy Klobuchar (D-MN) 202-224-3244
Al Franken (D-MN) 202-224-5641
Christopher Coons (D-DE) 202-224-5042
Richard Blumenthal (D-CT) 202-224-2823
Chuck Grassley (R-IA) 202-224-3744
Orrin G. Hatch (R-UT) 202-224-5251
Jon Kyl (R-AZ) 202-224-4521
Jeff Sessions (R-AL) 202-224-4124
Lindsey Graham (R-SC) 202-224-5972
John Cornyn (R-TX) 202-224-2934
Mike Lee (R-UT) 202-224-5444


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Federal Judge: DOMA is Unconstitutional; Congress acting "like an Ostrich"

In a brilliantly-crafted decision, Federal District Court Judge Jeffrey S. White of the Northern District of California has found DOMA Unconstitutional. His decision, while echoing and supporting a similar ruling by Massachusetts District Court Judge Joseph Tauro, goes even further than the July 2010 Massachusetts decision did.

The decision specificially declares that laws that discriminate on the basis of sexual orientation must be reviewed with the same scrutiny as laws that discriminate on the basis of race; trashed every arguement that Congress put forth in the passage of DOMA (including stating that "Congress cannot, like an ostrich, merely bury its head in the sand"); denied the right of Congress to impose its own version of 'morality' or "religion" on the issue; and compared DOMA to efforts to prevent interracial marriage.

And for icing on the cake, Judge White closed the decision by quoting U. S. Supreme Court Justice Anthony Kennedy, seen by most Court-watchers as the moderate, key swing vote when this issue eventually gets to the Supreme Court.

The 43-page decision has been reduced to its barest elements below and is worth a read.


IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
KAREN GOLINSKI, Plaintiff,
v.
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT and JOHN BERRY, Director
of the United States Office of Personnel Management, in his official capacity, Defendants.

BACKGROUND

The pertinent facts are not in dispute. Ms. Golinski is a staff attorney in the Motions Unit of the Office of Staff Attorneys in the United States Court of Appeals for the Ninth Circuit.

Ms. Golinski has been partners with Amy Cunninghis for over twenty years...On August 21, 2008, they were legally married under the laws of the State of California. Shortly after they married, Ms. Golinski sought to enroll Ms. Cunninghis in her existing family coverage health insurance plan, Blue Cross and Blue Shield Service Benefit Plan, which she purchases through her employer and which already covers the couple’s adopted minor child. The Administrative Office of the United States Courts (“AO”) refused to process her request on the basis that Ms. Golinski and her spouse are both women.

Defense of Marriage Act.

This action presents a challenge to the constitutionality of Section 3 of DOMA as applied to Ms. Golinski...Specifically, Ms. Golinski alleges that, by operation of Section 3 of DOMA, she has been denied certain marriage-based federal benefits that are available to similarly-situated opposite-sex couples, in violation of her rights to equal protection and due process as secured by the Due Process Clause of the Fifth Amendment.

In 1996, Congress enacted and President Clinton signed DOMA into law. Section 3 of DOMA, the only provision at issue in this matter, defines the terms “marriage” and “spouse” for purposes of federal law. Section 3 provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word
“spouse” refers only to a person of the opposite sex who is a husband or a wife.”

The legislative history reveals that Congress acknowledged the constraints imposed by federalism on the determination of who may marry, which has always been uniquely the province of state law. Nonetheless, Congress asserted that it was not “supportive of the notion of same-sex marriage,” and it embraced DOMA as a step toward furthering Congress’ interests in “defend[ing] the institution of traditional heterosexual marriage.” ...Although drastically altering the benefits structure based on state definitions of marriage and the federalist balance in the area of domestic relations, Congress did not hear testimony from agency heads about the effect of DOMA on federal programs, or from historians, economists, or specialists in family or child welfare.

Equal Protection Analysis and Standard of Review.

The “Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)

“[T]he Constitution ‘neither knows nor tolerates classes among citizens.’” Romer v. Evans, 517 U.S. 620, 623 (1996) . This principle embodies a commitment to neutrality where the rights of individual persons are at stake. Dragovich v. United States Department of the Treasury, 764 F. Supp. 2d 1178, 1188 (N.D. Cal. 2011). It is because of this commitment to neutrality that legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional scrutiny.

In an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion. To these groups of protected classifications, subject to a heightened scrutiny, the government is required to demonstrate that the classification is substantially related to an important governmental objective. Laws that do not burden a protected class or infringe on a constitutionally
protected fundamental right are subject to rational basis review. Under the rational basis review, a law must be rationally related to the furtherance of a legitimate governmental interest.

[Bloggers legal note: The above is a critical Legal issue. If a law is passed that discriminates against a group considered a 'suspect class' such as race, the government must prove that the discriminatory law is "substantially related" to an "important government objective." If it discrimninates against other groups, it only has to prove that there is a rational basis for the law, and that it "furthers a legitimate government interest."]

Level of Scrutiny

Here, DOMA makes distinctions between legally married couples, by granting benefits to opposite-sex married couples but denying benefits to same-sex married couples.

Accordingly, DOMA treats gay and lesbian individuals differently on the basis of their sexual orientation. In order to determine whether sexual orientation is considered a suspect or quasisuspect class entitled to heightened scrutiny, the Court must look at various factors. The Supreme Court has considered: (1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are “immutable” or beyond the class members’ control; and (4) the political
power of the subject class.

The Question of Level of Scrutiny is Still Open.

The Supreme Court and the Ninth Circuit have yet to issue binding rulings as to whether classifications based on sexual orientation are suspect (or quasi-suspect). …No federal appellate court has meaningfully examined the appropriate level of scrutiny to apply to gay men and lesbians. Therefore, the Court finds the question of what level of scrutiny applies to classifications based on sexual orientation is still open.

1. There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination…

2. Similarly, there is no dispute in the record or the law that sexual orientation has no relevance to a person’s ability to contribute to society…

3. The Court finds persuasive the holding in the Ninth Circuit that sexual orientation is recognized as a defining and immutable characteristic because it is so fundamental to one’s identity.

4. Despite the modest successes in remediating existing discrimination, the record demonstrates that gay men and lesbians continue to suffer discrimination “unlikely to be rectified by legislative means.”

Here, having analyzed the factors, the Court holds that the appropriate level of scrutiny to use when reviewing statutory classifications based on sexual orientation is heightened scrutiny.

[Blogger's legal note: in other words, sexual orientation must be seen similar to race or national origin. Heightened review of the law applies, and the government must prove that the discrimination is "substanbtially related to an important government objective."]

Application of Heightened Scrutiny to Justifications Proffered for DOMA.

Under heightened scrutiny, the proponents of the statute must establish, at a minimum, that the classification is “substantially related to an important governmental objective.”

[Blogger's Legal Note: Congress elucidated four reasons for the passage of DOMA, as described below]

1. The first reason proffered by Congress when enacting DOMA was to encourage responsible procreation and child-rearing…Even if this could be considered a legitimate interest, denying federal recognition of and withholding federal benefits from legally married same-sex couples does nothing to encourage or discourage opposite-sex couples from having children within marriage. Accordingly, the Court finds that the first proffered reason for the passage of DOMA does not provide a justification that is substantially related to an important governmental objective.

2. The second reason proffered by Congress when passing DOMA, was its asserted interest in defending and nurturing traditional, opposite-sex marriage…[T]he ostensible governmental objective of fostering opposite-sex marriages remains unaffected by the passage of DOMA…Nor does the denial of benefits to same-sex couples do anything to encourage opposite-sex couples to get married. Accordingly, the Court does not find that the second proffered reason for the passage of DOMA provides a justification that is substantially related to an important governmental objective.

3. The third reason proffered by Congress when passing DOMA was its asserted interest in defending traditional notions of morality. Basing legislation on moral disapproval of same-sex couples does not pass any level of scrutiny…The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation. The
obligation of the Court is “to define the liberty of all, not to mandate our own moral code.” Accordingly, the Court does not find that the third proffered reason for the passage of DOMA provides a justification that is substantially related to an important governmental objective.

4. The final reason proffered by Congress for passing DOMA was the preservation of scarce government resources. However, there is no evidence in the record to demonstrate that the provision of federal benefits to same-sex married couples would adversely affect the government fisc[ally.] In addition, the preservation of government resources cannot, as a matter of
law, justify barring some arbitrarily chosen group from a government program. Plyler, 457 U.S. at 227, 229…Accordingly, the Court does not find that the fourth proffered reason for the passage ofDOMA provides a justification that is substantially related to an important governmental objective.

The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.

[Parallel with Anti-Miscegenation Laws]

Proponents similarly argued that the long-standing tradition of the separation of the races provided justification for prohibiting interracial marriage. The lower court in Loving v. Virginia found that God had created the races and placed them on separate continents in order that there “would be no cause for such [interracial] marriages.” 388 U.S. at 3. It was, at the time, a strongly-held belief among proponents of antimiscegenation laws that mixing the races was against God’s will,
flaunted a long history of tradition and, at its core, endangered the institution of marriage. However, in its holding in Loving, the Supreme Court found that although interracial marriage was a socially divisive issue and proponents of antimiscegenation held traditional and religious beliefs about the erosion of the traditional concept of marriage, Virginia’s racial classification violated the equal protection guarantee.

…[T]his Court finds that Congress cannot, like an ostrich, merely bury its head in the sand and wait for danger to pass, especially at the risk of permitting continued constitutional injury upon legally married couples. The fact that the issue is socially divisive does nothing to relieve the judiciary of its obligation to examine the constitutionality of the discriminating classifications in the law. Accordingly, the Court finds that Congressional caution in the area of social divisiveness does not constitute a rational basis.

The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring)


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Maine Republicans: Where's Waldo?!

[Important update at end of post]

Last week, the Maine Republican Party reported that Mitt Romney had defeated Ron Paul in the state’s caucuses by a scant 194 votes. The mainstream media dutifully reported this ‘fact,’ and went on to other issues. Political Bloggers, however, would not let the issue rest, as the announcement was made before 17% of the precincts in Maine had voted. The state party openly admitted that the votes from Washington County had not been included in the final count, as the precincts in that county had not yet cast votes: they were postponed until this weekend due to the forecast of a major snowstorm. The decision to exclude Washington County raised eyebrows, as that county is home to the University of Maine at Machias, and is expected to return a strong vote for Ron Paul.

But now it appears that other precincts throughout the state – including those that actually voted on the February 11 Caucus date – were also not included. In particular, Waldo County – the mid-coast county where this blogger’s family owned a camp for four generations – was almost entirely left out from the total vote counts.

The city of Belfast, a working-class city of 6,600 people at the head of the Penobscot Bay, and next-door Searsport, a similar port of 2,600, turned in “0 votes” according to the final tabulation just released by the state Republican Party, even though both places held caucuses on the 11th. In all, 20 of the 26 Towns in Waldo County were omitted from the announced vote totals. Suspicion of a stolen election is growing, as some of the Waldo County towns with known returns delivered significant margins to Ron Paul: Paul defeated Romney by 16-3 in Montville, and 9-1 in Palermo.

And the “clerical oversight” wasn’t limited to Waldo County: in neighboring Kennebec County, the city of Waterville – a city of 15,000 residents with a poverty rate twice that of the state and not likely fertile ground for Mitt Romney – were not included in the state party’s official returns.

The Bangor Daily News, one of Maine's two statewide newspapers, reported yesterday that “Pressure is mounting on the Maine Republican Party to reconsider its weekend declaration that Mitt Romney won the state’s caucuses…”

Indeed.

In the meantime, in spite of all of their fancy screens and bells and whistles and election analysts - - -where have the major networks been on this story?

UPDATE:The Mainstream media continue to ignore it, but the Blogosphere has apparently forced Maine GOP Chairman Charlie's Webster's hand: GOP HQs emailed all party leaders today (Thursday, Feb 16) with this message: “County Chairman & Town Chairman [sic], We are reconfirming the totals from the Presidential Preference Straw poll. Can you please EMAIL ME the totals from your towns. For County Chairman [sic] if you are emailing the total for your entire county can you please list the towns that are included.” Read more at Politico

In addition, the Waldo County Republican Committee took a vote of no confidence and called for the censure of party chairman Charlie Webster.

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Mitt Romney steals Iowa in January, Maine in February

On the night of January 3, Iowa state Republican officials – partisans of the ‘establishment’ Republican Party - announced that Mitt Romney had won the Iowa caucuses by a mere 8 votes. But a win is a win, and the establishment officials who organized the capital area (Des Moines and West Des Moines) for Romney were relieved, especially since Romney was losing counties he won all over the state the last time he ran.

But then, a few weeks later, a new vote total was announced: On Jan. 20, some uncounted votes were “discovered,” and Rick Santorum was declared the winner by 34 votes. Panicked that the establishment favorite would be seen as a loser, Iowa GOP Chair Matt Strawn said no winner could be certified because the votes of eight additional precincts were “missing.” (Strawn resigned as party head Jan. 31).

Romney would go on to win New Hampshire and Florida, but face embarrassing defeats in South Carolina, Colorado,, Minnesota, and Missouri. The last thing Romney needed was yet another defeat in Maine.

And so, Maine State Republican Chairman Charlie Webster announced an hour ago that Mitt Romney won the Maine caucuses with 2,190 votes, and that Ron Paul came in second with 1,996 (39% - 36%). The difference between the two candidates – a mere 194 votes – offers a much-needed, but still razor-thin win by Romney.

But wait....are the caucuses over?

The media have simply parroted Webster’s announcement that Romney has won by 194 votes. But the reality is that 17% of the precincts in Maine have not yet voted - and Webster is insisting he will invalidate them.

Those precincts include voters from the University of Maine at Machias, in the heart of Washington County. Ron Paul has, so far, won the plurality of votes cast among college students in every state in which a primary or caucus has been held.

Maine's caucuses do not all happen at the same time, as each Town decides how to conduct their own caucuses. In Maine, caucuses began as early as February 4 and continued throughout the week. But the results announced this past hour only account for just 83 percent of all of the precincts in the state. Caucuses in Washington County, which were originally scheduled today, were postponed until next weekend because a major snowstorm hit today.

The official weather forecast:

Moderate to heavy snow and strong winds will create very hazardous traveling conditions. Frequent blowing and drifting snow will cause near whiteout conditions at times.

Schools and other meeting facilities were closed.

Is it possible, in a County of almost 33,000 residents and a university campus, that Romney's “victory” margin of only 194 votes might disappear?

Webster doesn’t want to take any chances. In an effort to preserve a Romney victory at all costs, Webster declared that any caucus results that come in after tonight would not, under any circumstances, be counted.

A century and a half ago, there was a common political cliche that said, “As Maine goes, so goes the nation!.” This was not necessarily because Maine was a bellweather state, but because Maine voters would cast their votes in September, rather than on the usual national November Election Day. Yankee pragmatism suggested that the threat of severe winter weather in November should naturally mean that Mainers be given the chance to cast their votes earlier in the season, when they weren’t likely to be battling two feet of snow and freezing rain.

And so, in another pragmatic decision that was supported by a century-old, long-honored Maine tradition, Washington County officials delayed the caucuses because of severe February winter weather. But Webster won't count them.

Apparently, Webster is more interested in disenfranchising voters and securing a Romney win at all costs...making Maine the second state stolen by Mitt Romney in the Republican race for the nomination.


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City of Keene, NH seeks "Bearcat" Military Tank; America's Police continue to Militarize

The United States appears to be rushing head-long into a full-fledged Police State. Tasers. Pepper Spray. NDAA. Drones. And now, military tanks as “police” vehicles.

On June 6, 2011, in Oakland Park, Florida, James Doe, who was 31 years old and only 130 pounds, was tasered by police while he was handcuffed and locked in the back of a cruiser. He fell limp, and was pronounced dead upon his arrival at Florida Medical Center. James was just one of 40 deaths that occur every year as a result of the unnecessary or excessive use of Taser equipment by law enforcement officials.

Backtracking: In Chicago, a team of research scientists and doctors at the Cook County hospital trauma center stunned 6 pigs with two 40-second Taser discharges. All six animals exhibited heart rhythm problems. Two subsequently died of cardiac arrest. A San Francisco cardiologist and electrophysiologist, Dr. Zian Tseng, determined that a healthy individual could die from a Taser discharge, depending on electrode placement on the chest and pulse timing. Taser International then contacted him, asking him to reconsider his statements to the media on the subject, and then offered him “funding” to further his research. CBC News Story.

But Taser International is hardly the only private firm that profits by militarizing local police forces.

This Blog has been particularly critical of the increasing use of Pepper-Spray by Police forces. Excessive and indiscriminate use of the chemical has been used with increased frequency across the nation, particualarly at Occupy Protests; several photos and videos that caught pepper spray incidents in New York and at U. California–Davis went viral and heightened public attention and condemnation of the practice.

(see U C Davis Pepper Spray and NYPD Pepper Spray )

Police reactions in both cases initially consisted of lies and cover ups which couldn’t stand up to the evidence in the videos, and the officers in both of those cases were disciplined. Unfortunately, even as I write this, the state of Florida is now investigating the case of Nick Christie, a 62-year old mentally ill man who was bound, restrained and tied to a chair in a Flordia jail and coated with pepper spray in 2009. He died two days later.

Pepper spray was approved in the US for police use in spite of objections by US military scientists in 1991, and is now in use in 2,000 local jurisdictions. Subsequent to that approval, it was discovered that Thomas W. Ward, the head of the FBI's Less-Than-Lethal Weapons Program who approved pepper spray’s use on civilians, received payments from Luckey Police Products, a pepper spray manufacturer, while authoring the FBI study that led to its use. Ward received $57,500 in increments of $5,000 a month paid through his wife. He was sentenced to two months in prison.

In the meantime, various courts have declared its use to be cruel and excessive, and twelve citizens die each year from pepper-spray induced asthma attacks or asphyxiation.

News of the increased militarization and forcefulness on the part of American officers “of the peace” are accelerating with frightening speed. Congress recently passed the NDAA bill, permitting the military to detain US citizens without trial or charge indefinitely; the Obama administration has admitted to the expanded use of spy drones over the United States; and after the Super Bowl this past weekend, state and local police arrived in riot gear and on horseback at the University of Massachusetts–Amherst campus, “in anticipation” of student crowds. When the police decided the crowd on the public, state-owned property was "too big,” they moved in and dispersed students who, up to that moment, had broken no law and caused no damage.

And so, in this atmosphere of the growing American Police State, the city Council of Keene, New Hampshire has attempted to purchase a military tank, without public input, for the purposes of “rescue missions."

The City of Keene recently announced that its would use a grant of $285,933 from the Department of Homeland Security to purchase a "Bearcat" vehicle from LENCO, a company that prides itself on developing and selling vehicles for military and SWAT-team use. Of 15 City Councilors, only one – Terry M. Clark – opposed the purchase.

After the Council vote, citizen response was swift. A petition in opposition to acquiring the Bearcat was delivered to the City Council, signed by 144 residents. The opposition has crossed political lines, uniting conservatives, liberals, and libertarians. Initially, the City Council decided that they would simply “accept” the petition without discussing the issue again. Council Member Terry Clark then formally requested that the issue be returned to the City’s Finance Committee for a public hearing; the Council agreed, and this Thursday, Feb 9 at 5:30 pm the first public hearing on the issue will be held.

In the meantime, LENCO is attempting to backtrack. The Bearcat purchase is being ‘recast’ as an effort to purchase a “rescue” vehicle that will help Keene citizens in need. The LENCO website, however, approaches this issue quite differently. On its Website advertising six varieties of Bearcats (its domain name is, tellingly, “SwatTrucks.com”), LENCO describes the vehicles as having the following attributes:

“Primary APC used by SWAT & SRT, Military Police, and Security Forces”

“Designed for Military personnel. Military-style turret can be configured for .50 caliber Dillon Mini-Guns and CROWS.”

“All Military Spec Steel construction. Currently used by SWAT and Special Op Teams at high security facilities.”

“V-Hull Blast Shield protects against grenades and IED attacks”

None of these sounds like the attributes of a “rescue” vehicle. In fact, LENCO had a video advertisement on YouTube that promoted its product: it showed military and SWAT teams exiting the vehicle, firing military weapons, drilling holes through house walls, and spraying toxic gases.

In the heat of the controversy, LENCO pulled the video ad off of YouTube.

But thanks to our friends at CopBlock, the video is included here. You watch, and you decide, whether this is a “rescue” vehicle or another military toy to facilitate the police state’s intimidation and control over the citizenry:





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9th Circuit Overturns Prop 8. Ruling, History, and Next Steps

The 9th Circuit Federal Appellate Court has just ruled in a 2-1 decision that Proposition 8, the California initiative that ended Marriage Equality in California, is Unconstitutional under the 14th Amendment of the US Constitution, which guarentees citizens the equal protection of the law. The three-Judge panel consisted of Stephen Reinhardt, an appointee of President Carter; Michael Daly Hawkins, an appointee of President Clinton; and N. Randy Smith, appointed by President George W. Bush.

From today's ruling:

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and familes as inferior to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort."

In making this ruling, the Court (which has federal jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington State, and the territories of Guam and the Northern Mariana Islands) made two other rulings: it held that the lower federal district court Judge, Judge Vaughn Walker, who initially found Prop 8 Unconstitutional, did not have to disqualify himself from the case simply because he himself is gay; and it affirmed the right of a conservative citizen's group to defend Prop 8 in Court. This ruling represents the first time that an Appellate federal Court has held that discrimination against gays and lesbians seeking to marry violates the US Constitution, and accelerates the likelihood that the entire US Supreme Court will hear the issue in the next term.

This Blog has followed the Prop 8 case closely because of its national significance. Here is a "plain language" timeline of the events leading up today's ruling:

May 15, 2008: The California Supreme Court rules 4-3 in In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384
that Marriage is a fundamental right, and California's statutes prohibiting same-sex marriage were therefore Unconstitutional under the State Constitution. Same-sex Marriages began in California shortly theafter.

Nov 4, 2008: California citizens, through a popular referendum vote of 52%-48%, adopted a Constitutional Amendment to prohibit same-sex marriage. The ballot question was known as Proposition 8 ("Prop 8" for short).

May 26, 2009:Supporters of same-sex marriage bring suit in State Court, challenging the process by which Prop 8 was adopted. The State Court rules, 6-1, that the process was valid, and Prop 8 was a valid amendment to the State Constitution.
(see Blog post )

Aug 4, 2010 – In a move initially seen as controversial by some gay rights activists, supporters of same sex Marriage then chose to sue in Federal District Court, claiming that Prop 8 violated the Federal Constitution. Federal District Court Judge Walker agreed, and overturned Prop 8. (See details at
Blog Post Walker's order declaring Prop 8 Unconstitutional was then stayed ("put on hold") pending appeal to a higher level (the 9th ircuit Appellate Court).

Nov 17, 2011 – Governor Schwarzneggar refused to appeal the ruling on behalf of "The State," enraging conservative activists who sought standing to challenge Walker's ruling on appeal. The Federal Appellate Court was asked to overturn Walker's ruling by conservatives, but that court first had to decide whether the conservatives even had "standing" (or "the right") to sue in the first place, since the Governor and Attorney General of California would normally be the parties involved in defending the law. The Federal Court chose to ask the California State Court whether a citizens group had the right to sue under State law. The state court ruled that indeed, the conservative citizen group had the right to sue, (see Blog Post .)

With that as background, the 9th Circuit Appellate Court had to decide the following questions before it:

(1) Did the conservative citizen's group also have the right to sue in federal court?
(2) Did Walker have to disqualify himself?
(3) Was Walker's ruling overturning Prop 8 correct as a matter of Law.

The Last point is particularly important. In legal cases, *only* the Trial Court (the lowest court) hears and determines issues of *fact.* That means that evidence concerning the effect of discrimination on gays, the history and purposes of marriages, and psychological and medical facts surrounding homosexuality was all entered into the record and decided in Walker's Courtrom. It can not be questioned on appeal. It has been widely acknowledged by people on all sides that the conservatives arguements were extremely poor and not well supported by evidence; several of their witnesses even backed out of testifying at the last minute.

This is critically important for the next steps.

Chances are, this ruling today will be stayed ("put on hold") pending another appeal by conservatives to one of two bodies:

They can appeal to the FULL 9th Circuit. The current decision was issued by a panel of three justices from the 9th circuit, which is standard procedure. The conservatives can request that a "full bench" hear the case(called a hearing "en banc"), which would involve 11 of the 9th circuit's 28 justices.

Or, they could appeal directly to the U.S. Supreme Court. Many observers are skeptical that the US Supreme Court would take the case however, because the 9th Citcuit wrote their decision very narrowly: they decided that the California law, in light of the process followed in California, violated the US Constitution; they did not rule that prohibitions against same-sex marriage "in general" violated the U S Constitution.

According to Shannon Minter, legal counsel for the National Center for Lesbian Rights:

"Given the reasoning of the Ninth Circuit's decision and its focus on the specific circumstances that led to the enactment of Prop 8 in California, it may be a tall order for the supporters of Prop 8 to persuade the Supreme Court to take the case. The Supreme Court normally only accepts cases when different federal appellate courts have reached opposite conclusions on the same legal issues, or where a decision has broad national implications. The Ninth Circuit's California-focused decision presents neither of those circumstances. Unless the Supreme Court breaks with its own tradition and intervenes in the case, it's possible that wedding bells will be ringing in California again before the end of the year."

In any event, the issue of same-sex marriage as a federal Constitutional right is not yet established...but it is one step closer.

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Why a Gay Man Gets Excited About Super Bowl XLVI

It’s the stuff that Disney feel-good movies are made of: my single memory of playing football in junior high school was accidentally catching a ball that somehow landed right in my hands - - and then running in the wrong direction.

I have a similar memory from basketball. I would always allow myself to be blocked, so that there would never be a chance that I would actually catch a pass. But one time it somehow happened (I think the opposing team just gave up on bothering to cover me). I caught the ball. In my panic, rather than pass it or dribble it, I ran with it. Ooops.

There was the wrestling demo in grade school, where the gym coach flipped me around and my neck cracked as it bent backwards and I ended up seeing stars for 30 minutes. And the little league game where the pop-up fly landed not in my glove, but hit my voice box square-on, causing me to black out.

Now, I shouldn’t make it sound like I’m a TOTAL dork...I can play volleyball pretty well, I’ve finished (poorly) in a few 10k foot races, I used to ski fairly well, I can bowl and shoot, and I found some major mojo in the gym once I saw the results in my arms and chest from a lot of hard work while weight training.

Still, it is a little odd that the kid who used to find any excuse in the world to escape gym class; who openly identifies with the gay community; and who only learned at the age of 51 how to throw a football with a spin (thanks to his teenage son) – can actually get excited about the Superbowl.

And that excitement is not just limited to the Superbowl - as an adult, I have enjoyed the World Cup in a gritty pub in Holyhead, Wales; followed the NY Mets during the US Baseball season; and remain fascinated by rugby and the culture surrounding it. Somewhere I decided that my relative incompetance and ignorance in sports skills did not have to last forever. But for the most part, I am still a very ‘late bloomer’ compared to my male counterparts when it comes to sports, so it stretched me to my limits six years ago when I created a college-level course in Sports Economics. When it comes to discussing the media revenue streams to the NFL or the salary structure of pitchers in MLB, I can hold my own – but when my students start throwing around names and statistics and player numbers, I get that butterflies-in-the-stomach feeling I got when that football somehow landed in my hands in junior high.

Reading through the threads on Facebook today, many of my gay friends are making funny comments about the Superbowl, and being kind of campy about it…looking forward to Madonna’s half-time show, wondering how well the uniforms will fit, preparing to make Cosmos, and musing about how good-looking the ‘goalies’ will be. All in fun, all acknowledging in a sideways kind of ways that they, too, like me, were the “outsiders” as kids who never “got into” sports, and for whom sports was a dreaded opportunity for humiliation.

But aside from the tongue-in-cheek and campy threads, there are many more that are basic “hurray-for-our-side” or “Who are YOU supporting today?” threads. And therein lies, I think, one of the reasons for the pervasive hold that professional sports has on our society.

In teaching that Sports Economics course, the very first topic we seek to answer is a deceptively simple question:

What is the product that professional sports is selling?

Students who take the course are often sports-a-holics; with the exception of one or two females per class, they are exclusively male; and they are often the kinds of jocks with whom I had *nothing* in common in junior high or high school. As they grapple with this question, they often wrestle with the idea that Professional Sports is ‘selling’ leadership, teamwork, safe expressions of warrior-hood and male aggression, unrealized dreams, superstar brands, and entertainment; and to be honest, there are elements of all of these things at work in sports.

But the conclusion they always reach is that Professional Sports teams are selling something much more elusive in today’s society: Identity.

Both of my grandfathers worked their entire lives in a single company. My dad worked in several capacities for the same government unit his entire life, and my mom worked for one company for the majority of her adult life.

On the other hand, between the ages of 24 and 52, I have worked at nine different jobs.

My mom and dad got married and bought a house that was 3 blocks from where my mom was raised, and one mile from where my dad was raised. When they retired, they moved to smaller condominiums and apartments within two miles from there (They originally moved to Florida for a short time, but realized they wanted to be "home" and they came back to NY). My mom still lives in the same community in which she was raised. My father’s distant relatives remain in the NYC, all within an hour of where his ancestors stepped off the boat 370 years ago.

On the other hand, though I was born and raised in NY, I left there at the age of 30: I have since lived for 8 years in Massachusetts (in three different houses) , and 14 years in New Hampshire (in six different places). Statistically, I’m typical of most Americans: according to the 2010 census, the average American moves 12 times in a lifetime (which explains why I am about ready to ‘retire’ and settle down a bit!)

In this fast-paced century, where people have Facebook ‘friends’ they have never met on the other side of the world, where they move every 8 years, and where they change jobs 10 times before the age of 42 – “where is home?” What is “home?” With a growing integration of ethnicities into the American salad bowl, a growing number of US citizens simply call themselves “Americans” on the US Census rather than holding to older European nationalities (I did this myself on the 2010 Census: it was easier than choosing more than 10 ethnicities).

And so, with global communications and fast-paced mobility, Professional Sports Teams offer a sense of ‘belonging,’ of identifying with a particular location regardless of one’s ‘temporary’ or ‘transient’ station in life. Today’s Facebook threads are full of people emphatically supporting the NY Giants or the New England Patriots – and the strongest fans are precisely those who see one of these teams as their “home team.” Their identity is, in some way, wrapped up in these non-military warriors representing the “homeland.” Native New Yorkers living in California will root for the Giants; native Bostonians in Texas will be cheering for Tom Brady.

And for that reason, this gay man who couldn't throw a football until last year is preparing the guacamole dip, reading the online sports news, spicing the shrimp soup, picking up some more beer, watching his boyfriend wire up the surround sound system, and getting out the ingredients for some kick-ass Hero sandwiches.

And routing passionately for Eli Manning and the New York Giants.

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Washington State Senate Approves Marriage Equality; Governor Promises to Sign

By a vote of 28-21, the Washington State Senate has just approved SB 6239, moving that state just a few days away from being the eighth American jurisdiction to establish Marriage Equality for same-sex couples. A companion bill in the State House, HB 2516, is widely expected to pass by a comfortable margin, and Governor Chris Gregoire has already announced that she will sign the bill if it gets to her desk. With California’s Marriage Equality law suspended while courts rule on the legality of “Proposition 8,” Washington would become the only western state at the current time to grant full equality to same-sex couples.

The issue was scheduled to be voted on at 6:00 pm Pacific Time, but due to seventeen amendments that were offered and breaks for party caucuses, the final vote did not take place until almost 8:00 pm. Most of the amendments were written to safeguard religious institutions and organizations, not unlike the clauses that were added in the New Hampshire and New York Marriage Equality debates, but were actually redundant as they reiterated protections already codified in state or federal constitutional law. One of the amendments included protections for faith-based social service agencies, which would exempt religious adoption agencies from litigation for refusing to place children with gay families. Proponents agreed to 13 of the 17 amendments, including the exemption for adoption agencies, and these were adopted unanimously with little fuss on the floor.

A few amendments did spark controversy, however. Amendment 15 sought to exempt public officials from performing same-sex marriages if they harbored personal religious objections. It was rejected on a voice vote.

Amendment 14 would have exempted businesses from providing services for gay ceremonies; in an early test of the eventual fate of the bill, Amendment 14 was defeated on a roll-call vote of 22 yeas and 27 nays.

Of all the amendments offered, Amendment 10 was the critical test. Amendment 10, the so-called "Referendum Amendment," sought to subject the eventual decision to a public vote. A call to "let the people vote" is a tactic that opponents of Marriage Equality have used as a rallying call in numerous states, including Maine (where voters repealed an Equalty law) and New Hampshire, where Marriage Equality remains intact. The effort to require a public vote failed by a vote of 23 to 26, foreshadowing the final vote.

Just before the vote was taken, Democratic Senator Kevin Ranker (40th District, San Juan Islands) delivered an emotional speech on the floor about his own father's coming out process and the impact of shame and discrimination on families, ending his statement saying, "today I am proud to stand on the right side of history, to fully support marriage equality and mostly, proud of my father."

While the Senate split largely along party lines, four Republicans, including Cheryl Pflug of Maple Valley and Steve Litzow of Mercer Island crossed the aisle and supported the measure, while three Democrats bolted opposed the bill.

Washington has wrangled non-stop over this issue for almost 15 years, and the vote tonight represents a seismic shift in opinion over those years.

In 1998, state legislators voted to ban same-sex marriage altogether, endorsing a state-wide version of the so-called federal DOMA (Defense of Marriage Act) statute. But in 2006, legislators also adopted Washington’s first civil rights statute for gays, followed one year later with a mechanism that allowed for the registration of Domestic Partnerships. Soon thereafter, lawmakers adopted a civil unions statute that awarded same-sex couples the same rights as opposite-sex couples, except for the title of “marriage.” Conservative groups gathered enough signatures to bring this measure up for a popular vote on November 3, 2009, known as Referendum 71 (or “R-71” for short). But in a stunning turnaround of popular opinion, voters in Washington approved the measure by a vote of 53% - 47%.

The current effort to enact full Marriage Equality came down to the wire, as supporters came into the vote seemingly one vote shy of the necessary of the 25 Senate votes needed. Last week, Sen. Jim Kastama of Puyallup announced he would support the measure in the Senate, bringing the number of Senators in favor of the measure to 24, where support appeared to stall, and 6 Senators remained undecided. Reminiscent of the battle in New York State, intense lobbying ensued, with formal support being offered by Nike, Starbucks, and Microsoft, three of the state’s most visible employers. In October, a University of Washington poll found that 43 percent of Washington residents supported the measure. While still less than a majority, this was a significantly higher percentage than the 30% who supported such a measure in a poll taken in 2007. During the debate on the amendments, news services reported that Seanator Brian Hatfield announced that he would provide the 26th vote in favor of the Bill.

Assuming the bill is passed in the House and signed by the Governor, as expected, the law would take effect in June unless opponents find a mechanism to forestall its implementation in court or through petition and referendum.