Monday, January 4, 2010

Judicial Activism Redefined

Second careers for lawyers is a growth industry. It's largely about job dissatisfaction. I'm not the only lawyer who signed-up, believing in good faith that the law is a noble profession and that we are indeed a nation of laws. Over the years that faith was eroded by being repeatedly battered to the point where I came to see it all as a great cosmic scam.

What made me such a cynic? I suppose it watching judges up close and personal trampling on the laws, rules and procedures they are sworn to uphold as the front line in the war against injustice.

What am I talking about? Well, take for instance the case of Plessy v. Ferguson. That's the 1898 U.S. Supreme Court case that institutionalized segregated schools on the theory that "separate" could be "equal."

Anyone with half a brain knew that by definition "separate" can never be "equal." That didn't stop the 1898 Supremes. It wasn't until 1954, fifty-six years, two generations and two world wars later, that the Supreme Court (which is to say the country) overruled the travesty and insult to our collective intelligence and integrity that was Plessy.

The problem s that these rulings just can't pass the smell test. When no one with any intelligence can make sense of one of these out-of-control decisions you just know they're pure b.s.

Such was the case in the California Marriage cases after Prop 8 when the California Supreme Court ruled that domestic partnerships are the functional equivalent of marriage. So fifty-five years after the U.S. Supreme Court reversed the breathtakingly disingenuous Plessy the California Supreme Court revived it (and the genre) in a different context -- sex rather than race discrimination.

Now the Supremes - The Republican Supremes (the right-wing Republican poster children) - are at it again. With the addition of Bush appointees Roberts and Alito (hyped by the right-wing's poster children as anti-"judicial activist" judges), the Republican majority created a gloss on the Equal Protection Amendment that no one I know could have dreamt-up.

Section 1 of the 14th Amendment to the U.S. Constitution provides, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In 2000, the Court came up with the 'class-of-one' theory. It says that the constitutional guarantee of equal treatment under the law applies to every “person.” Therefore, individuals who have been treated unequally by the government can raise an equal protection claim, even if they only represent a class-of-one. The case was Village of Willowbrook v. Olech, 528 U.S. 562 (2000).

Then, in 2008, the Republican majority came up with the idea that the 'class-of-one' theory doesn't apply to public employees. The case is Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146 (2008). One commentator wrote: "Therefore, no matter how arbitrary the government’s decision might appear to be, a public employee may not assert a “class of one” claim, based on the theory that government personnel decision making is inherently highly subjective and discretionary." In other words, public employees' equal protection rights must yield to what the Supremes now claim is a government employer's greater right not to be burdened by such lawsuits because there might be too many of them (lawsuits). If government had to worry about being sued for discrimination by employees they'd fucked that would cause the wheels of government to come to a screeching, grinding halt. Well, duh!! In effect, the Court held that the only public employee who may sue his or her employer must be a member of a "protected class" (age, sex, religion, national origin), even though the 14th Amendment doesn't say so or anything like that. Really. I'm not making this up.

Have you ever heard such nonsense? But it's the law now. A majority of the Supremes said so. And then lawyers (and lower court judges) have to join in the dance trying to reconcile these patently bullshit decisions with plain old common sense. Maybe they should write opinions that would have the effect of dissuading malefactoring bosses from breaking the law in the first place, but noooo. Instead, they write decisions that legitimizes what should be illegal discrimination.

Unless you're an employment discrimination lawyer, I doubt you would have heard about the "class of one" doctrine or the 2008 judicial narrowing it. I didn't. I know about it only because I'm interested in a sex/gender discrimination case pending in the Atlanta, Georgia U.S. Federal District Court. Vandy Elizabeth Glenn is a transgendered woman who sued the Georgia legislature (which fired her solely because she announced her plan to transition on-the-job) just one month after Chief Justice Roberts delivered the Engquist decision.

Can there be any clearer case of judicial activism? The Republican Right must really be desperate.

The Georgia legislature moved to dismiss Vandy's complaint, asserting it's a "class of one" case. Fortunately, the trial judge ruled against them. He's Richard W. Story - a local Georgia boy, and a Clinton appointee. Both sides have now moved for summary judgment. Let's hope this one goes the same way as Judge Robertson's ruled for Diane Schroer last year in her case against the U.S. Library of Congress. But wouldn't you love to see it go to trial? Then we could enjoy the spectacle of Vandy's boss, Sewell R. Brumby (what a name - right out of Dickens!) trying to explain that he wasn't engaging in illegal discrimination when he told her transition and presenting as a woman was "immoral" and would make her co-workers "uncomfortable."

Wednesday, May 27, 2009

Prop 8 - The End?

When I first addressed this subject I thought the California constitutional challenge would be pretty much a slam-dunk. Prop 8 proposed to alter a California constitutional fundamental right (to marry) aimed solely against a despised minority recognized as a suspect class (gay people) and thus would constitute a 'revision' rather than a mere 'amendment' and as such could not be accomplished by a mere majority vote of the general electorate, right?

Well, not so quick. I should have known better. I am, after all, a lawyer, and I've seen just how mendacious the courts can be. It never occurred to me the California Supreme Court would be this mendacious.

I mean, I've seen some fancy judicial footwork before. We all have. Remember Bush v. Gore? Author: Tony Scalia. Need I say more? But at least that Court (U.S. Supreme) split 5 to 4. Yesterday, the California Supreme Court went 6:1 to hold that Prop 8 really didn't reduce gay people to second-class citizens. They still have civil unions, right? Hey, that's pretty much the same thing as marriage, so if we don't allow gays to 'marry' what's the big deal? Where's the harm? It is, after all, just a word. No kidding - that's what they said.

To put it in scholarly legal context, the California Supreme Court handed-down its own version of Plessy v. Ferguson. That's the 1898 U.S. Supreme Court case that upheld segregated schools because they're "separate but equal."

Top add insult to injury, the six justices (how dare they call themselves that!) collectively wrote 150 pages of pure garbage. We, the taxpayers, have to pay for that. It's tough reading, not because it's too wordy or the insights require too fine a juridical mind to comprehend, but because it's just so much garbage that reading it is a guaranteed headache.

Only one California Justice got it right. Carlos Moreno was the only dissenter, the only one of seven to tell the world plainly that the emperor has no clothes. Read his 25 page dissent. He says it all. And it's easy reading - because it makes sense. The majority opinion does not. That's why it's so hard to read. They have to dress up all their bullshit in fancy language so you won't figure out the obvious - that they're just blowing smoke up your nose.

On the one hand, I'm angry. The courts scream to us how 'fair' they are. But the bottom line is that they're a corrupt cesspool of stinking, lying, back-stabbing scum and Huey Newton was right -- there is no "justice," there's only "just us" - and fuck you.

On the other hand (lawyers always need two hands - have you even seen a lawyer with just one?) I still have one tenuous foot somewhat planted in the real world and it tells me the world is an imperfect place, starting with the courts. It's The Golden Rule - the guy with the gold makes the rules, and our treasury is kinds low on yellow metal.

It took the U.S. Supreme Court 56 years to redress Plessy and hold that "separate but equal" is unconstitutional. How long will it take to do the same with the right to marry in California?

This decision is so bad that the two lead lawyers who were on opposite sides of Bush v. Gore are teaming-up to challenge this decision in the Federal district court. That's right - David Boies and Ted Olsen(!)This isn't the first time a Federal court struck down a patently anti-gay voter initiative that amended a state constitution. It happened in 1996 in Colorado.

But I'm not looking to the courts for help. Maybe Scalia, Roberts, Alito and what's-his-face will all conveniently off themselves and Obama will pack the U.S. Supreme Court with liberal judges who will turn things around, for a while at least until the pendulum swings back the other way again. I'm a student of history and that is human history.

In the meantime, the most plausible solution is yet another California ballot initiative, this time to amend the California Constitution to undo Prop 8.

We shouldn't have to be in this mess now in the first place. We shouldn't have lost the fight last November but the gay leadership has proven itself hopelessly inept. We'll be saved, if at all, by the inexorable demographic shift toward younger voters, the kind of people who increasingly aren't buying into their parents' homophobia. Maybe.

Monday, May 18, 2009

Vive la France!

Again, trust the French to get it right.

On May 16th the French Health Ministry (formally, "la Haute autorité de la Santé (HAS)") declassified transsexuality from the list of "psychiatric disorders of long duration." Hallelujah.

And the status change should be accomplishable without surgery. I believe that so far, only Spain allows this. The proponents invite the World Health Organization (WHO) to take the next step to similarly declassify transsexuality.

It should be noted that in so classifying transsexuality, the WHO looked to the American Psychiatric Association's Diagnostic and Statistical Manual (DSM). Significantly, the APA is holding its annual meeting this week in San Francisco. Today, May 18th, transgender activists protested the proposed DSM revisions that would continue to stigmatize us with mental illness diagnoses.

Cynically, HRC President Joe Solmonese is shouting louder than ever his support for the trans community, even though he's persona non grata with us. In September 2007 he swore to a cheering crowd at the Southern Comfort trans conference in Atlanta that HRC would never support an Employment Non-Discrimination Act (ENDA) that did not include trans people. Just three weeks later Nancy Pelosi and Barney Frank sold the trans community down the river by removing us from ENDA. None of Solmonese's fancy footwork and obfuscations could paper-over the fact that he wholesale forgot his promise and went along with this patent betrayal.

Some trans folk worry that removal of transsexuality from the DSM will mean that they will lose out on things like insurance coverages that rely on the DSM's mental illness diagnosis. That may be but it's likely they will retain coverage as transsexuality is increasingly recognized as a straightforward medical/health issue. The AMA is already of this opinion. It's the better way. The current mental illness diagnosis is simply too stigmatizing and carries too many detractors to be worth holding onto. It has to go because it's simply factually wrong.

Thursday, April 23, 2009

Angie Zapata verdict

The verdict is in - 1st degree murder plus the hate crime conviction - a clean sweep but bittersweet because it won't bring back the life of the young victim.

I caught a few newsfeeds. They're very sketchy. Everyone was wondering how the jury would react. Now we know and the real news story is the jury - not the killer, and not even the victim. Rather, it's how public attitudes have changed because twelve ordinary people said "no" to the 'trans-panic' defense.

The trial went quickly, just four days, and it was largely prosecution. The defense presented a few witnesses, trying to poke little holes in the prosecution's case but to no avail. The perp had confessed to killing the victim. The only issue was why, and for that Allen Ray Adrade's only defense was trans-panic. It had worked before for Gwen Araujo's killers. Perhaps he really thought it would work again, this time for him.

It didn't.

The jury deliberated for just two hours, perhaps less, and the judge pronounced sentence immediately. The alacrity of it all was surreal.

So where do we go from here? Well, I'd like to know more about the jury. Who were these people, eight men and four women in a conservative and largely rural Colorado county, who only took two hours to deliberate before they returned their "guilty on all counts" verdict? I'd like to know. What went on in the jury room? It's important.

I also want to know if they believed anything Andrade said. His story conflicted with the prosecution's account (that at least 36 hours before he killed Angie he knew she was ts.) Unfortunately, every news media outlet reported his version as the facts - that she performed oral sex on him the night before he killed her. Why did they do that? Who knows if that actually happened? It was just his word and now we know that 12 people, a jury of his peers, read him as a lying sack of s**t. Will news accounts continue to print and air his version?

Colorado is very visible on the trannie radar screen. Two years ago we were reading about the flap when a young ts child started attending school as a girl. I later met her and her parents - wonderful people. The mother told me the hateful parent who had made the stink slithered off in to the shadows, where he belongs.

Then Angie Zapata was murdered.

Now we need to attack the 'trans-panic' defense. It's a form of the insanity defense. There are states that significantly delimit it. I read that in Nevada a judge must first rule on whether the insanity defense can be argued to the jury. Ok, let's do that for the trans-panic defense too - no automatic right to present just anything to the jury, no matter how over-the-top, because the mob is inherently susceptible to demagogic appeals to bigotry. Let the accused first convince a judge that it's a good-faith claim. It's constitutional.

Unless someone commissions a study can we ever know for sure what has happened over the course of years to change public attitudes? Would the twelve people on Allan Andrade's jury have convicted Gwen Araujo's killers of first-degree murder? The fact pattern wasn't all that different. How about Fred Martinez? Or any of the others unlucky enough to be listed on the Remembering Our Dead website? Can we finally say that these people did not die in vain?

Has anyone noticed what's missing? There aren't any voices criticizing the prosecution, the verdict or the sentence. I'm not hearing anyone arguing that the victim deserved what she got. No one is criticizing the prosecution for consistently referring to the victim as "she." Maybe I'm not listening but I don't hear anyone singling-out trans people for non-inciusion in a federal hate crime bill, that it would be granting "special rights" to us in particular.

People's attitudes toward transsexuals can be influenced. The evidence is clear - when people get to know us as real people many are dissuaded from their knee-jerk prejudices. Hopefully the fact that a Colorado jury heard the evidence and soundly rejected an appeal to their baser instincts is significant. The jury fled the courthouse after the verdict and sentence and there are no reports that any of them spoke to the press but hopefully they will speak to their families, their friends and their neighbors about what they saw and heard while in the jury box - and what they felt.

This case may be our lever to accelerate our successful efforts to influence and bring the masses into the light and turn them into allies. We can do it.

Thursday, April 16, 2009

Fairness for Angie Zapata

Thank whomever for the Internet. Without it there would be no Google and no Wikipedia, without which I wouldn’t have been reminded that it was Anatole France (née Jacques-Anatole Thibault) who wrote in 1894 in Le Lys Rouge (The Red Lily)), “La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain.” (Translated: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”)

A gratuitous reference? No, especially because today marks M. France’s 165th birthday.

I thought of this famous quote as I considered Allen Andrade's murder trial in Greeley, Colorado, which opened today.

Allen killed Angie Zapata. Not “allegedly” – he killed her and he intended to kill her. He hit her twice with a fire extinguisher, thought he'd killed her, then when she tried to get up he finished her off with another blow to the head. The only questions are (i) whether his crime was murder or manslaughter and (ii) in what degree. The State is charging him with first-degree murder. If convicted, he could be executed.

Angie Zapata’s crime? Just wanting to live and love as a woman.

Andrade’s version? The victim deceived him. “It” led him to believe “it” was a woman when in fact “it” had a cock, which makes “it” a man.

His defense: When he learned that "it" had a cock he "lost it" - he went berserk because that meant (to him) he’d had sex (the victim gave him a blow-job) with a man, which, he alleges, makes his skin crawl. He said if people knew they'd think he’s gay, which (he says) he’s not.

It’s the same tired old “trans panic” defense – blame the victim because "it deceived him."

The case is being tried before Judge Marcelo Kopcow. Since we’re a nation of men rather than laws, who's who matters. I don’t know where Judge Kopcow is from but he attended Northeastern University undergrad and New York (not to be confused with NYU) Law School.

NYLS is not a name law school. Like many local law schools, it graduates what some consider a disproportionate number of lawyers who go on to become judges.

Kopcow was appointed to the bench in 2005. My internet search didn’t disclose whether he was recently re-appointed or elected.

Angie Zapata is not the first person beaten to death by men who claimed the trans panic defense. The list of victims is simply too long and too tragic to enumerate. What’s different here is that the perp is also being charged with a hate crime.

In the 2000 presidential debates I watched Bush and Gore field a question about hate crimes. The context was the sensational Texas murder of James Byrd Jr., a black man who was tied to a pick-up truck and dragged to death. The three perps were tried and convicted.

Bush came out against a separate hate crime charge. He argued that justice was amply served by convictions on the base criminal charges. Two of the perps got the death penalty; the third got life in prison.

I didn’t expect more from Bush. I already knew him for what he was and what he still is. But Gore’s answer infuriated me because his long-winded response completely missed the point. Gore never even got close to saying that a hate crime is and should be charged separately because it’s intent is to threaten not victim-at-hand but rather the community-at-large represented by the poor unfortunate victim-at-hand. James Byrd Jr.’s murder was a not-very veiled threat to black people everywhere – get uppity and we’ll kill you too. For that reason, and to dissuade others who might be contemplating similar crimes, enlightened legislatures enact hate crime statutes. Why is that so difficult for some people to articulate?

Judge Kopcow ruled on a number of pre-trial defense challenges. It’s a mixed bag. On the one hand, he upheld the hate crime and first-degree murder charges but he threw-out part of Andrade’s confession and excluded evidence of his gang affiliation.

Regarding the confession, Kopcow ruled that police wrongfully continued questioning Andrade after he told them he didn’t want to talk anymore.

I’m a lawyer and while I never practiced criminal law exclusively I know that this point falls under the Miranda “right to counsel” rule. All the cases I know of that do limit police questioning involve a suspect whom police continue to question after s/he utters the magic words “lawyer” or “attorney.” That’s all it takes. Until then, the police can continue asking questions and the suspect is free to say nothing. Ask the U.S. Supreme Court.

Maybe the law’s changed under successive Republican administrations but I’ve not read any published report that upholds the right to limit questioning and exclude answers obtained after a suspect says s/he doesn’t want to talk anymore – not without first asking for a lawyer.

But Andrade never asked for a lawyer. Did Kopcow bend over backwards to aid a killer? And if so, why? And why no murmer of dissatisfaction with the ruling from the prosecution? Because the victim was transsexual?

Regarding the gang affiliation, Kopcow said that prosecutors wanted a Greeley police gang expert to testify that Andrade was a member of a gang and that any allegation that he had "homosexual sex" would result in severe penalties.

"This type of conduct can result in a 'general hit' by a ranking member of the gang, including death," Kopcow wrote in his order. But the gang investigator "also has never encountered this type of violation to occur where a gang member was 'dubbed' into committing this homosexual act."

Kopcow ruled the gang testimony was “speculative” and “prejudicial” to the jury. Again, the prosecution said nothing.

Speculative? What would be untoward if the expert testified what he knows as a fact about the gang, that this is what he knows about them from their past conduct, and that Andrade was a member of the gang. That’s “speculative?”

Of course Andrade's chances would suffer if the jury were to find out about his gang affiliation but that's the point of a hate crime charge, so how is that “prejudicial?” What exactly does the prosecution have to introduce in evidence to prove a hate crime? Will anything suffice less than a bald-faced statement along the lines of, “I killed “it” because I hate trannie faggots?”

Or do we exclude this highly probative evidence because the victim was transsexual?

So it’s fair to ask: What’s changed since Anatole France wrote his famous quip? The justice system is fair, n’est-ce pas? Transsexuals and the cisgendered are both forbidden to sleep under bridges, to beg in the streets, and to steal bread.

Bon anniversaire, M. France.

Friday, April 3, 2009

Hooray for Iowa!

Over the years I've had a handful of friends who grew up in Iowa.

The first was a military brat. When I met her she was dancing topless at the NAS Oceana officer's club. Then there was Seed, our squadron nickname for a fellow RIO who'd grown-up on a farm. Lastly was a young woman whose divorce I'd handled. She went on to Barnard and then the NY Times.

There was something different about them. Now I know why. Iowans just are more firmly-grounded and seem to embody true American values than most.

Today we have the news that the Iowa Supreme Court has struck-down a 1998 state law that bans same-sex marriage. It figures.

It figures too that an already declared Republican constitutional challenge to the Iowa state constitution is likely to fail. That's because in Iowa the state legislature must first approve a ban on same-sex marriage in two consecutive sessions after which voters would have a chance to weigh in. Compare that to the protocol in supposedly progressive California whose Supreme Court is set to validate the absurd notion that the fundamental right to marry can be denied gay people by a bare 51% of the general electorate -- no intervening legislative vote necessary, thank you.

What a crazy quilt!

Iowa's looking better and better. Did you see "The Bridges Of Madison County?"

Thursday, March 5, 2009

The final nail in this coffin

I just caught the final minutes of Pro 8 oral argument in the California Supreme Court. It sounded like a valiant effort that's going down in flames. Justice Joyce Kennard was flashing unmistakable signals about which way she's leaning - against us. From the anguish in the voice of a valiant gay woman lawyer who was the last to argue I have the sense that the majority will follow Kennard. This has not been a good day for the GV community.

This country is fucked. I say this even though we elected Barack Obama. Republicans have brought us to the brink of ruin and they're still at it. Just look at the Republican brick wall Obama is facing in Congress and the spectacle Republican leadership genuflecting to kiss the ring of Rush Limbaugh. We're fucked. There are so many stupid, bigoted people it's embarrassing to be an American.

As a transwoman, my consciousness of this issue is particularly acute as I become increasingly aware of how the male-female binary permeates society. OTOH, things are changing, and that's our only hope. If we couldn't persuade the California Supreme Court that a bare 51% majority should not be allowed to limit fundamental rights (like marriage) to a visible, undeniably persecuted minority (gays) then what really separates us from Nazi Germany? What use are is the hifalutin verbiage in which we wrap ourselves, deluding ourselves that we believe in the rule of law and concepts like 'fairness?'

The only hope now is that we can get an anti-Prop 8 voter incentive measure on the ballot soon and that the change in demographics since the last election will signal a different outcome. That means we need to limit the influx of antediluvian Latin American peasantry that continues to flood unabated into our state and to humiliate the superstitious and prejudiced black women who formed the core of 'religious' voters who more than any other voting bloc shot down gay marriage. Maybe they need a little re-education, a little vacation perhaps to a reconstituted slave plantation so they might regain an historical perspective and remember what it's like to live without civil rights.

Then again, I could be wrong. I hope so.