Category Archives: Law: Con Law: Marriage

Most of the big cases I mentioned last week remain to be decided. That means they will be decided this week, maybe today.

I think that the Padilla case is so important that I almost titled this item “Supreme Court to decide if this is still a free country”. I am an optimist about big things, although not always about small, and something of a patriot, so I persist in the belief that the Supreme Court will get this one right. Just about all the lawyers I talk to agree, although no one thinks it will be the 9-0 vote that it deserves to be. Estimates cluster at 6-3 or 7-2.

If we're wrong in our predictions, and it goes badly, it's time to raise hell, or we will be remembered as the generation that let the American Experiment go sour.

Fafblog! the whole worlds only source for Fafblog, pens an obituary for Western Civilization:

Western Civilization. Born 3500 B.C. in early Mesopotamian city-states, Western Civilization developed numerous complex systems of political governance, conquered most of the inhabited world, and invented the hot air balloon, the nuclear bomb, and the ice cream cone. Died May 17, 2004, of a gay agenda in a Massachusetts court house. It is survived by isolated anarchist survivalist camps and nomadic bands of flesh-eating zombies.

Over the years, I have been involved in a number of local political campaigns, albeit none recently, and there's nothing like doing retail politics to meet a lot of regular decent folks, most of whom have a lot of good sense. It gives you some faith in the basic long-run reasonableness of the nation (although that faith sometimes gets shaken during periods of martial enthusiam).

And that's why I think there's a decent chance that the Bush-Rove plan to polarize America will backfire. Consider South of the Suwannee, a blog that never struck me as at all radical:

Haven't I Heard All This Before? What if President Eisenhower had advocated a constitutional amendment to overturn the Supreme Court's “overreaching” in Brown v. Board of Education? His advocacy would not have been based on any racial prejudice, but that the desegregation of American society by judicial fiat denied the electorate to have its say through the legislative process. He might have said, regretfully, “On a matter of such importance, the voice of the people must be heard. Activist courts have left the people with one recourse.”

Farfetched? Hardly. I vividly remember the “Impeach Earl Warren” billboards that dotted the highways throughout the South, and the politicians whose opposition to civil rights was couched in terms of the South's “traditions.” I also remember my grandfather stating his belief that the real goal of integration was legalized miscegenation.

Fortunately for America, Ike resisted the call for radical reaction to the Supreme Court's decision and subsequent event proved him right. Contrast that restraint with President Bush's call for a constitutional amendment to defend marriage.

I didn't start out being in favor of marriage for gay couples — and there may be some valid reasons to go slow in this process. But most of the arguments I have read seem to be based either on religious proscribtions, vague calls to preservation of traditions, or advocacy of seizing an opportunity to reign in out-of-control judges.

I've been married (to the same woman) for over three decades, and have a recently-married offspring and another who might not be that far away from “tying the knot.” I cannot see that allowing gay marriages threaten my or my children's relationships. On the other hand, a constitutional amendment does threaten a number of citizens and demeans one of our most significant civil documents.

I think, I hope, that there's a lot of that around.

I'd be happy to see a well-crafted lawsuit with the right sort of photogenic plaintiffs that might help find a right to same-sex marriage in the Florida Constitution. I've got some doubts, however, whether the suit filed earlier today by lead plaintiffs wearing T-shirts advertising their business is the one to do it. Especially as it appears that many of the supposed plaintiffs may not be aware that they are part of the case.

Pair files suit, challenging Florida ban on gay marriage — Gay couple James Stewart, 61 and Wayne Clark, 54, of Dania Beach, filed suit Wednesday in Broward County against the state of Florida for not recognizing their application to get married to each other.

“We are human beings, American citizens with the same rights as anyone,” said Stewart, facing a phalanx of television news cameras. “We pay our taxes and we're here to say to the Bush administration [who is proposing a constitutional ban on gay marriage], you can't decide who we can marry.”

The couple, who have been together for 10 years and wore matching black T-shirts advertising their piano bar act, hired attorney Ellis Rubin Tuesday afternoon. Their suit follows by one day an announcement by President Bush that he advocates a constitutional ban on gay marriage.

Stewart and Clark went to three Broward bars Tuesday night and collected 175 signatures of patrons who support the suit.

Presumably some of those people were unaware that they had signed their names to a lawsuit, Rubin conceded. He said he would remove anyone's name who asked.

They went to bars and asked people to sign in support??? They didn't screen the people to find out what their circumstances were? They outed them without even explaining to them what was going on? Rubin put their names in as plaintiffs — claiming to act as their lawyer — when the people were not even aware of his aim (or of the asserted attorney-client relationship)??? If that's true, it would seem a grave breach of basic professional ethics.

Wait a minute. Rubin. Ellis Rubin. That wouldn't be this Ellis Rubin, would it? The guy who tried (and failed) to sell a jury on the 'television intoxication defense'? And then years later tried the Internet intoxication defense? But that's also the same Ellis Rubin who went to jail rather than breach a rule of professional ethics.

Although none of the articles I can find address this issue, I assume this lawsuit is based on Art. I, sec. 2 of the Florida Constitution,

Basic rights.—All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.

I don't know enough about the history of this clause to have a view as to how well it will sustain the claim, although I wouldn't have thought that Flordia as a whole was that fertile a grounds for civil rights of any sort (South Florida is not typical of the state). What concerns me is that the early reports about this lawsuit seem rather ominous, both for what they say about the ethics of the people running it, and the amount of preparation they've put into it. Which is a shame, as bad lawyering makes bad law easy. Difficult civil rights cases need the patient preparation that Thurgood Marshall brought to the NAACP, not grandstanding.

And there's more, which suggests to me that this isn't the sort of carefully crafted lawsuit with model plaintiffs that a smart lawyer would choose to mount what can only be an uphill attack.

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