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Comedians, Satire and the Law: 2010 “Cultural First Responders” December 29, 2010

Posted by legalethicsemporium in Gay Marriage, Gays in the Military, Immigration, Law, Ethics & Society.
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The idea of our republic is that we elect representatives to effect change.  Seems lately that perhaps we are having greater success when our favorite comedians speak on our behalf   Satire has always played a role in addressing hypocrisy and highlighting the issues of the day. However,  Jon Stewart’s impact on the recent passage of the bill to provide 9/11 first responders with health care benefits transforms the role of the comedian from social commentator to catalyst for change.

There has been much written about Jon Stewart’s role in securing healthcare for 9/11 first responders. While he has declined to comment on the passage of the bill, those who were struggling against what began as overwhelming odds credit the Daily Show’s coverage for “shaming” Congress into action.

“…[S]ome of those who stand to benefit from the bill have no doubt about what — and who — turned the momentum around. “I don’t even know if there was a deal, to be honest with you, before his show,” said Kenny Specht, the founder of the New York City Firefighter Brotherhood Foundation, who was interviewed by Mr. Stewart on Dec. 16.”

New York City Mayor Michael Bloomberg added, “Success always has a thousand fathers,” …“But Jon shining such a big, bright spotlight on Washington’s potentially tragic failure to put aside differences and get this done for America was, without a doubt, one of the biggest factors that led to the final agreement.”

While Jon Stewart often insists that his is just a comedy, fake news show, Jon Stewart and his colleague, Steven Colbert, of the Colbert Report, have taken on the cable news networks and highlighted many of the cultural/legal issues being debated in our country.  (In addition to their nightly pieces, this year brought us the Rally to Restore Sanity/Fear, and other dramatic examples, such as Steven Colbert’s show on which he spent the day along side migrant workers and his controversial trip to Capital Hill to testify about their working conditions.)

Jon Stewart and Steven Colbert are certainly not lone social commentators.  As the momentum builds to legalize gay marriage in view of the repeal of Don’t Ask, Don’t Tell, Jay Leno quips, “What does that say about us as a nation when we believe gay men can now handle armed combat, but aren’t yet ready for the fighting that happens in marriage?”

Whether  the comedic world will have a measurable impact on changing the law remains to be seen; however, clearly the comedians are voicing the views of a significant cross-section of the country regardless of the action or inaction of Congress. In fact, the flurry of Congressional activity in the waning days of the December session during which Don’t Ask Don’t Tell was repealed, The Dream Act failed to pass, and 9/11 first responders were provided with health care benefits evokes the following query.

Is the law a reflection of society’s current values or does the law serve to motivate behavioral change that eventually changes overall societal values?  Like many aspects of law and society, inevitably, the general answer is: it depends upon the circumstances and one’s perspective.

More specifically, it also appears to depend upon who is interested in calling attention to the various cultural issues and values at play. Perhaps instead of continued lobbying on Capital Hill, the students marching in support of the Dream Act should “elect” their local comedians in hopes of making the dream of an education become a reality.

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Runaway Bride? Gay Marriage On Hold (Again) in California August 16, 2010

Posted by legalethicsemporium in Gay Marriage, Law, Ethics & Society, Religion.
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Just a quick update to the “Wedding Bells” post of August 12th  ….

Judge  Vaughn Walker lifted the stay on gay marriage, but allowed six days for the Proposition 8 team to appeal his ruling to the Ninth Circuit’s Federal Court of Appeals.  A three judge panel at that Court again imposed a stay which prevents gay marriage in California pending a review of the merits of Judge Walker’s decision.  The decision to impose the stay does not necessarily reflect what the Court  will decide about Judge Walker’s determination that Proposition 8 is unconstitutional.   The stay maintains the status quo–-no gay marriage–-until there is a final decision on the case.

One other interesting note is that the main defendants, Governor Schwarzenegger and Attorney General Jerry Brown, are not interested in pursuing an appeal.  In fact, they have voiced opposition to Proposition 8. So, the Court also needs to decide whether the parties that intervened in the case, primarily ballot sponsors such as the group Protectmarriage.com, may proceed with the appeal even though they do not enforce the laws of the state.

A bit unusual….In other words, the majority of Californians (52%) voted to ban gay marriage.  Some of its citizens, the minority in this case, objected claiming that the majority had violated the minority’s Constitutional rights. The Court agreed with the minority and the Executive Branch does not care to appeal the case because it doesn’t like the law.  A group of citizens who support Proposition 8, the majority, were allowed status in the case to argue for the majority and that group is the only one “left standing.”  Regardless of your position on gay marriage, we all should embrace the vision of democracy in motion as it “walks down the aisle.”

Wedding Bells in California on August 18th ? Judge Walker Lifts the Stay on Gay Marriage August 12, 2010

Posted by legalethicsemporium in Gay Marriage, Law, Ethics & Society, Religion.
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Tears of joy and of outrage may flood the streets of San Francisco today as Judge Vaughn Walker, who invalidated California’s Proposition 8  last week, has now removed the last impediment to gay marriage.  He had delayed the implementation of his order with a legal stay to allow time for argument over whether the stay should remain in effect pending appeal of his decision. Judge Walker has concluded that it is not in the public interest to maintain the stay.  Therefore, people are free to get married, beginning on August 18th, in accordance with his ruling even though his decision is being appealed to a higher court. However, the August 18th date does allow time for a ruling on the stay by the United States Court of Appeals for the Ninth Circuit, the Court to which the case has been appealed.

Judge Walker’s decision that invalidated Proposition 8  was based upon the evidence presented at trial which included eighteen witnesses presented by the plaintiffs to demonstrate the viability of gay marriage.  The defense presented only two witnesses and relied upon Supreme Court precedent and the idea that gay marriage is a social experiment with unknown consequences.

Judge Walker opined that marriage is a matter of civil law, not a religious determination and found that “Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus toward gays and lesbians or simply a belief that a relationship between a man and woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. The Constitution cannot control private biases, but neither can it tolerate them. …”

He further found that,

”The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. …

”Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. …”

One of the most interesting aspects of this case is that people were not originally expecting  Judge Walker to conduct the  lengthy trial that he did. The trial afforded him the ability to write an opinion that applied the appropriate constitutional standard to the lengthy factual record amassed.   Appellate courts do not revisit the facts other than to determine whether the trial judge appropriately applied the law.  Judge Walker wrote a 136 page opinion and carefully and explicitly applied the law to the facts….

The plaintiffs are confident that the decision will ultimately be upheld while the defendants have no doubt that the decision will be reversed.  Thus, this case  not only  reflects  one  of the major civil rights issue of the day, but also is a prime example of the role of the judicial system to apply the rule of law and “calmly” decide the passionate issues of our times.

A Wedding of Law & Morality: Same – Sex Marriage on Trial in San Francisco June 16, 2010

Posted by legalethicsemporium in Gay Marriage, Law, Ethics & Society.
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Closing arguments are scheduled today in the case in San Francisco in which the legality of  same-sex marriage is on trial.  The Supreme Court of California had deemed same-sex marriage to be legal and the voters of California passed Proposition 8 to negate the Court’s ruling. Proposition 8 amended the California Constitution to define marriage as a union solely between a man and a woman.  The issue before the Federal District Court is whether marriage is a fundamental U.S. Constitutional right.  Regardless of what this court decides, the case is likely to be appealed to the U.S. Court of Appeals for the 9th Circuit  and ultimately to the U.S. Supreme Court.

If law is said to be a snap shot of a society’s cultural values at any point in time, this trial is a prime example of that phenomenon.  The judge in this case has heard the testimony of psychologists and social scientists and has told the parties to be prepared to answer questions such as whether sexual orientation is a choice and whether same-sex marriage threatens the institution of marriage.

This is not the first time that our society has defined the right to marriage by resort to the legal system.  The U.S. Supreme Court decided Loving v Virginia in 1967 and declared that a  law that prohibits inter-racial marriages is unconstitutional.

The Supreme Court’s ruling in that case overturned a decision in Virginia in which the judge had opined: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

Forty-three years later, the courts are once again being asked to define social norms within a Constitutional context. The people of California spoke as a majority when they voted for Proposition 8 and one might argue that in a democracy, the majority rules—-but if a fundamental Constitutional right is at stake, a majority of voters in one state does not qualify as a the final word.  The U.S. Supreme Court is the final arbiter of the Constitution.

While waiting for the courts to determine the legal fate of same-sex marriage, one wonders the context in which this debate will be viewed when we consider the issue forty-three years from now.  It is worth considering the words of Mildred Loving which she prepared for a press conference  in 2007 commemorating the forty-year anniversary of the Supreme Court decision in her case.  What follows is an excerpt from her statement.

God’s Plan?

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people civil rights.

Freedom to Marry for All

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

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