Integrity Legal

As the issue of equal rights for the LGBT community continues to evolve the political facets as well as the legal aspects of this issue continue to develop in real time. It recently came to this blogger’s attention that some groups are questioning the decision by the California Judge in the Proposition 8 case to act as adjudicator in that case which found that depriving same sex couples the right to marry in the same manner as their different-sex counterparts is a violation of same sex couples’ civil rights. In order to shed more light upon this issue it may be best to quote directly from an article recently posted on the official website of the Associated Press written by Lisa Leff:

At the center of the dispute is Chief U.S. District Judge Vaughn Walker, who issued the ruling last August declaring Proposition 8 to be an unconstitutional violation of gay Californians’ civil rights.

“We are not suggesting that a gay or lesbian judge could not sit on this case,” attorneys for the backers of Proposition 8 wrote in their motion filed Monday to overturn the landmark ruling. “Simply stated, under governing California law, Chief Judge Walker currently cannot marry his partner, but his decision in this case … would give him a right to do so.”

They claim Walker should have disclosed the relationship while presiding over the case and said if he had any interest in marrying his partner.

The administration of this blog strongly recommends that readers click upon the hyperlinks above to read further from this insightful article.

In the article cited above it was noted that some have argued that the Judge in this case should have recused rather than adjudicating the case. However, not everyone agrees that recusal was called for. Meanwhile, the issue of recusal simultaneously raises the issue of whether one’s sexual orientation is relevant to fulfilling public functions such as acting as an adjudicator. To quote further from the article noted above:

Experts in judicial ethics said Tuesday that carefully parsed line of reasoning is unlikely to prevail.

They pointed out that while courts have not yet had to wrestle with sexual orientation as grounds for judicial recusal, judges typically have rejected efforts to remove jurists based on personal characteristics such as race, gender, religion or even the contents of their investment portfolios.

“I don’t think this judge had any more duty to disclose his sexual orientation than a Christian or Jewish or Muslim judge has a duty to discuss their religion or a heterosexual judge has his duty to discuss their sexual orientation,” retired Illinois state Judge Raymond McKoski said.

The issue of sexual orientation and legal scrutiny thereof is one which will likely need to be adjudicated by the United States Supreme Court. Recently, the Obama administration clarified its position on this issue through the promulgation of the recent memorandum between Attorney General Eric Holder and the Speaker of the House of Representatives. The administration seems to believe that the issue should be accorded “heightened scrutiny” by the United States Supreme Court. To be clear, this blogger believes that same sex couples’ rights are inalienable natural rights (reserved to the American People pursuant to the 10th Amendment) which cannot be infringed upon by mere governments. That stated, under the current system in the United States, the best method for gaining equal protection under the law for the LGBT community in a practical sense would be through legislative and/or judicial action. However, this blogger truly believes that the best argument in favor of recognition of same sex marriage stems from States’ Rights since multiple sovereign States have either allowed for legal recognition of such unions or actively legalize and/or solemnize same sex marriages. Another argument in favor of full recognition of same sex marriage stems from an Equal Protection analysis. As implied by the Holder memo, some believe that heightened scrutiny should be applied to these cases. This blogger does not disagree with that argument per se, as it does seem as though so-called “heightened scrutiny” or “intermediate scrutiny” might be more appropriate under the circumstances than, say, strict scrutiny. In any case, whatever level of scrutiny is utilized it is this blogger’s opinion that Federal lack of recognition of same sex marriage as well as the current ban in California pursuant to Proposition 8 are both in violation of the Constitution based upon either an analysis of the Full Faith and Credit Clause or the Equal Protection Clause.

In this blogger’s personal opinion, the Judge noted above should not have had to recuse under the circumstances for many of the reasons noted above. That said, this blogger remains convinced that the currently pending appeal of a similar decision in Massachusetts Federal Court is more likely to result in gains for the LGBT community as that case rests upon more sound Constitutional footing (namely, States Rights: the reader is asked to bear in mind that the Framers of the U.S. Constitution believed that the most sovereign power under the U.S. Constitution resides with the American States). Whatever the outcome in either case, the struggle for equal protection of the LGBT community under the law of the United States must continue until the current grievances are redressed.

On the legislative front, it was recently announced that Representative Jerrold Nadler as well as other Federal legislators are currently supporting legislation such as the Respect for Marriage Act and the Uniting American Families Act (UAFA) which would overcome the current legal hurdles placed in the way of LGBT couples by the provisions of the so-called “Defense of Marriage Act” (DOMA). At the time of this writing it remains to be seen whether these bills will be enacted.

For related information please see: US Visa For Same Sex Bi-National Couples.

Tags: Chief U.S. District Judge Vaughn Walker, Defense of Marriage Act, DOMA, Full Faith and Credit Clause, heightened scrutiny, intermediate scrutiny, Judge Raymond McKoski, LGBT Equal Rights, Proposition 8, recusal, recuse, Respect for Marriage Act, Same Sex Marriage Same Sex Visa, uafa, Uniting American Families Act
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In a recent episode of Bill Maher’s popular television program Mr. Maher noted the fact that the debate on same sex marriage is being stubbornly maintained despite the continued damage it does to honest American Citizens and their families. He also noted the somewhat hypocritical stature of the current position held by the administration and the Congress regarding the issue of same sex marriage. After watching this program this blogger felt as though Maher had failed to take into consideration the endeavors of some steadfast legislators on behalf of the LGBT community and those same sex bi-national couples who continue to hope for legal change either in the form of judicial or legislative action.

A fascinating article on this issue was posted on an interesting website known as the Business Insider.  To quote directly from the Business Insider website BusinessInsider.com:

In his New Rules segment last night, Bill Maher took Obama and the Democratic party to task for not being able to pass gay marriage in America, even though more than a majority of people support it for the first time.

The administration of this web log highly encourages readers to click on the hyperlinks above to read the Business Insider’s take on these issues as the piece written by the author Steven Loeb is quite enlightening and insightful.The issue of same sex marriage is increasingly in the news as developments on the issue seem to be occurring quite quickly at the time of this writing. One of the reasons for this may stem from a sincere hope that the notion of Equal Protection under the Federal law will be extended to all American Citizens regardless of their sexual orientation and/or preference. Concurrently, there are those who also hope that Federal authorities recognize the Several States’ Right to regulate the marriage of those within their jurisdiction. Furthermore, there are others who hope that some of these issues could be resolved by the United States Supreme Court as there are likely legal implications pursuant to the Full Faith and Credit Clause of the United States Constitution. Putting these issues aside, Mr. Maher went on to note, humorously if somewhat crudely, quoting further from the Business Insider:

…that only 53% of people support it, which means that “47% of Americans are assholes.”

“But still, this is remarkable progress considering that it wasn’t that long ago that just saying the words gay marriage made most Americans throw up in their Cornflakes. So, tonight, I’d like to congratulate the leadership of the Democratic party who really stood up for what was right. I’d like to, but I can’t. Because other than Gavin Newsom, Dennis Kucinich and that Governor of New Jersey… no Democrat would touch this issue with a ten inch pole.”

Although this blogger has often noted the exploits of Representative Dennis Kucinich this monologue by Maher should be noted first for the fact that for all of the hyperbole and some might say profanity: the man is right. Same sex marriage is apparently becoming increasingly popular to a broader sector of the population, even though the cause has seen relatively little support at times from so-called “main stream” sections of either political party. Meanwhile, there are strong legal arguments which can be made against the Federal government’s enforcement of the so-called “Defense of Marriage Act” (DOMA) as it applies in sovereign US States which recognize, legalize, and/or solemnize same sex marriages. That stated, the Constitutionality of DOMA is questionable in terms understandable by broad sectors of the population as DOMA’s continued withholding of Federal recognition of unions  solemnized and legalized by 6 States and the District of Columbia infringes upon sovereign rights long reserved to the States, most notable among these rights is the right to solemnize and/or legalize marriages within the State’s jurisdiction (as well as annulment and/or divorce) as noted in a recent Massachusetts Federal Court decision.

Putting all of this aside, why no mention of Representative Jerrold Nadler? Why no mention of the other legislators who have championed this cause such as Representative Zoe Lofgren or Senator Kirsten Gillibrand? In the case of Representative Nadler, whom this blogger has followed with keen interest as he appears, at least to this blogger, to be the Federal legislator most active on this issue: here is a Democrat from New York who has continued to be an advocate for same sex bi-national couples as well as the entire LGBT community by actively supporting legislation such as the Respect for Marriage Act, the Uniting American Families Act, and; perhaps, Comprehensive Immigration Reform legislation which would include relevant language allowing same sex bi-national couples to receive United States immigration benefits to the same degree as their different-sex counterparts. This blogger is not disagreeing with Mr. Maher’s opinion on the issue of some Democrats apparently refusing to support legislation which would modify or repeal DOMA, but in an attempt to see that some credit is given where due it has been repeatedly noted on this blog that Representative Nadler has remained a champion of legislation which would reform what many feel is a flagrant violation of the civil rights of many Americans as well as the States’ right to make policies regarding the legalization and solemnization of marriages.

It should be noted that this blogger is in no way affiliated with Representative Nadler having never personally dealt with his office nor his staff and this mention is in no way an endorsement of anything other than his position on respecting the civil liberties of all Americans to marry whomever they choose and the State institution of marriage.

Tags: Bill Maher, LGBT Equal Rights, LGBT Immigration rights, lgbt visa, New Rules, Representative Dennis Kucinich, Representative Jerrold Nadler, Representative Zoe Lofgren, Respect for Marriage Act, same sex marriage visa, samse sex marriage, Senator Kirsten Gillibrand, Uniting American Families Act
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