Privacy And Petitions

The question in Washington state about the privacy of signers of public referendum petitions is interesting and a valuable discussion to have. The question is whether the signatories of petition can be made public. The question of privacy has been raised because of the effort to publish the names of signatories to a referendum petition to prevent domestic partnership rights to same sex couples.

The Ninth Circuit Court of Appeals ruled that publishing the names of the referendum supporters may violate protections of free speech. I make no claim to understand the esoteric legal issues this raises but I do understand the function of the referendum process. The function of public referendum is to circumvent the established legislative process. The referendum is a de facto piece of legislation and that means that signers are de facto legislators, similar to sponsors of legislation in a formal body. I can't support any democratic form of government in which there is any benefit in allowing anonymous legislators to introduce legislation to be introduced and passed.

The issue of safety is a concern. It would a tragedy if a petition signer was attacked because of their having signed a petition. But does that concern trump the principle of protecting the people from the tyranny of the majority. While the safety of the signers is a concern is it a greater concern than the protecting the rights of a minority of the people to be subjugated by the passing of the referendum. Sphere: Related Content

Trial Date For Prop 8 Challenge Is Set

January 11, 2010 is the trial date for the Prop 8 challenge.

The Mercury News reports:

"During a hearing in San Francisco, Chief U.S. District Judge Vaughn Walker ordered lawyers on both sides of the case to gear up quickly for the trial, which foes of California's same-sex marriage ban hope will be the first step in getting the legal fight over gay marriage to the U.S. Supreme Court.

Backed by former U.S. Solicitor General Theodore Olson and prominent lawyer David Boies, two same-sex couples sued in federal court this past spring to overturn Proposition 8, approved by voters in fall 2008 to restore California's ban on gay marriage. The lawsuit maintains Proposition 8 violates the federal constitutional rights of gay and lesbian couples by denying them the equal right to marry, and marks what is likely to be the first crucial legal test in the federal courts over the issue.

The California Supreme Court this past spring upheld Proposition 8, which amended the California Constitution to outlaw same-sex marriage, but the justices left intact an estimated 18,000 gay marriages that took place last year before voters approved the measure by 52 to 48 percent. Those weddings took place after the state Supreme Court struck down the state's previous laws banning same-sex marriage."

In an odd twist the judge in this trial made comments about the state lack of a defense in this case:

"Walker took a swipe at Schwarzenegger's position at the conclusion of today's hearing, saying, 'I must say I'm surprised at the governor's position in this case. ... This is a matter of some importance to the people of the state.'"

I can't wait for the crazy protests.

Photo thanks to http://www.inquisitr.com Sphere: Related Content

Move Over Judy Garland Here Comes Ted Olson

The profile of Ted Olson in today's NY Times is excellent. For some people it will seem like an Ebeneezer Scrooge story for others it is a Benedict Arnold story.

The profile:

"Mr. Olson, who is not a regular churchgoer, began to elaborate on his view that religious beliefs were insufficient legal justification for government to refuse to recognize same-sex marriage."

I would assert that religion is not a basis for any legal judgment, in as far as you can remove those ideas from your thought process.

Two quotes from the profile that shows the stupidity of the idea that people, even those with well defined ideologies, should be ruled by monolithic sets of ideas:

"Last month, at a Federalist Society lunch, Mr. Olson delivered his annual roundup of the Supreme Court term. He was greeted warmly, but there was palpable discomfort over the marriage case. Not a single person mentioned it to him, save for an oblique ribbing by David Bossie, whom Mr. Olson is representing in a case involving his scathing documentary about Hillary Rodham Clinton. After pecking Ms. Olson on the cheek, Mr. Bossie told her husband, “I’m not going to kiss you, even though apparently you wouldn’t mind.”

William Bradford Reynolds, another Reagan-era colleague, said later that while Mr. Olson presented a thoughtful case, 'He’s taking a more assertive view of how one should interpret the Constitution than you would normally expect Ted to take.'"

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Greenwald Gets To The Issue Of Mohamed Jawad's Guantanamo Detention

Glenn Greenwald has the vital question as to why Jawad is being detained. Greenwald:

"So here you have somebody, who as I indicated earlier, is basically accused of attacking members of an invading army, of an army that invaded, whether justifiably or not, legally or not, that invaded his country. Is the reason that that's considered a war crime, or that he's treated as being a terrorist or war criminal, is because he's not part of a regularly constituted army, and was acting as a civilian? I mean, obviously, people who are involved in regular armies have the right under the laws of war to do things like throw grenades. Why is he being treated essentially as a terrorist, even if the accusations were true - and I understand the argument is that they're not - but even if they were, why would that justify taking him halfway around the world to Guantanamo?

And how is that different from - if you know - under the laws of war, from things like having Blackwater or civilian contractors engaging in violence in foreign countries in conjunction with our armies?"

Greenwald talks with the ACLU's Jonathan Hafetz. The entire podcast is worth a listen but this question is asked in the eleventh minute. Here is the itunes link.

Greenwald creates one of the best podcasts on policy, politics and laws.

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McIntosh Repeat Errors About Sotomayor's Judicial History

David McIntosh has created of number of errors. I made some coffee and now to get to work.

In today’s Wall Street Journal McIntosh writes “Vote No On Sotomayor.” He attempts to assert facts that support his case but his claims are wrong.Unlike Mr. McIntosh, I am not a lawyer but I can read. To be fair these errors have been made everywhere.

As I said I am not a lawyer so if this wrong or boring I apologize (I hope I am not wrong).

Mr. McIntosh writes:

“Judge Sotomayor is almost certainly a vote in favor of restricting Second Amendment protections and property rights, upholding racial preferences, and providing unlimited abortion on demand.”

From this premise he cites rulings she has made while on the Court of Appeals.

According to McIntosh, as Justice, Sotomayor will certainly “vote in favor of restricting Second Amendment protections.” His first error is the reading of a Second Circuit decision on Maloney v. Cuomo (2009). Here McIntosh quotes the Second Circuit opinion, “the Second Amendment applies only to limitations the federal government seeks to impose on this right.” In Maloney v. Cuomo the court considered a claim by a New York attorney that a state law prohibiting possession of a chuka stick (also known as nunchaku, a device used in martial arts consisting of two sticks joined by a rope or chain) violated his Second Amendment right to bear arms.

The problem with McIntosh’s complaint is that it does not support the idea that legal precedent and rule of law. His argument is that in ruling on Maloney, Sotomayor disregarded the Supreme Courts decision in District of Columbia v. Heller. Unfortunately a close reading of Heller shows that the ruling is not explicitly applicable to Maloney. Justice Scalia’s majority opinion in Heller states,

“The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,’ 478 F. 3d, at 400, would fail constitutional muster.”

The first problem I find is that a chukka stick is not a handgun therefore not the weapon “most preferred” “to keep and use for protection”. It is also not in the “class or arms” considered in Heller. As written in the Maloney decision Heller “did not present the question of whether the Second Amendment applies to the states.” Knowing this and the importance of rule of law and precedent there seems no way the Second Circuit could have ruled the way McIntosh would have preferred without being the horrible “judicial activists.” Since Heller was not applicable the Second Circuit applied Presser v. Illinois, it explained that it was “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on the individual’s right to bear arms.

McIntosh commits the same error as he cites Ricci v. DeStefano. McIntosh writes “a Second Circuit panel of judges, including Judge Sotomayor, upheld the city’s decision to disregard the results of a promotion examination because too few racial minorities passed.” But in reality, if McIntosh had read the decision he may have avoided his error. The Second Circuit upheld the case because they found:

“The remedy chosen here was decidedly less “race conscious” than the remedies in Kirkland and Bushey, because New Haven did not race-norm the scores, they simply decided to start over, to develop some new assessment mechanism with less disparate impact. Thus, while the evidence shows that race was taken into account in the decision not to certify the test results, the result was race-neutral: all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion. Indeed, there is a total absence of any evidence of discriminatory animus towards plaintiffs-under the reasoning of [Hayden v. County of Nassau, 180 F.3d 42, 51 (2d Cir. 1999)], “nothing in our jurisprudence precludes the use of race-neutral means to improve racial and gender representation.... [T]he intent to remedy the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants.”

Again I’m not a lawyer but I can read. I agree with McIntosh that this sucks for the firefighters that did well on the first test but that is not the standard by which the law functions.

There are other problems with McIntosh’s latest attempt but I won’t don’t want to bore you with why Puerto Rican Legal Defense and Education Fund aren't crazy abortionists.

Note: There has been a correction from the original posting. I attributed the essay Vote No On Sotomayor to Karl Rove. The essay was written by David McIntosh. Apologies.

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