Wednesday, March 30, 2005

Demonstrably At Odds With Our Constitution

The Eleventh Circuit Court of Appeals has once again denied a Schindler Petition for Rehearing En Banc. What is significant in this denial is the written opinion of Justice Stanley F. Birch, Jr. who alone opined on the constitutionality of S.686 rushed through both houses of Congress and signed at 1:00 a.m. by President Bush. It is also important to note, Justice Birch was appointed to President George H. Bush, a conservative Republican. You can read his official biography here. The United States Supreme Court refused to hear the appeal of the Eleventh Circuit's decision.

I point out that Justice Birch's opinion does not reflect the opinion of the court. The Eleventh Circuit did not, as a majority hold this particular law unconstitutional; however, it does reflect the opinion of at least one of the justices on the Eleventh Circuit. It is quite likely others did not join that opinion or reach the ultimate constitutional determination since they were not required to do so, and the issues were resolved on other grounds.

I personally agree with Justice Birch's analysis, and will provide brief commentary and quotes from his opinion. Justice Birch begins his opinion with a very human analysis, acknowledging the tragedy of this case for both the Schiavo and Schindler families:

An axiom in the study of law is that “hard facts make bad law.” The tragic events that have afflicted Mrs. Schiavo and that have been compounded by the resulting passionate inter-family struggle and media focus certainly qualify as “hard facts.” And, while the members of her family and the members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty.


Continuing, Justice Birch points out a critical truth, one which I believe is the primary underlying motivation for those who have turned the Constitution on its head by the passage of this law--the perception of judicial activism:

A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of “activist judges.” Generally, the definition of an “activist judge” is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution.


Concluding the law to be unconstitutional, Justice Birch continued:

In resolving the Schiavo controversy it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people — our Constitution. Since I have sworn, as have they, to uphold and defend that Covenant, I must respectfully concur in the denial of the request for rehearing en banc. I conclude that Pub. L.109-3 (“the Act”) is unconstitutional and, therefore, this court and the district court are without jurisdiction in this case under that special Act and should refuse to exercise any jurisdiction that we may otherwise have in this case.

An interesting commentary is his observation that justices have sworn to uphold the same Constitution as have legislatures and executives. And, that the legislative and executive acts in passing and signing this law were demonstrably at odds with that Constitution.

Justice Birch correctly noted that:

Since the passage of Pub. L. 109-3 on the morning of March 21, 2005, its constitutionality has been presumed. (Citations omitted). In the instant appeal, our court and the district court continue to indulge this presumption and decline to address the constitutionality of the law which purports to grant federal jurisdiction. See Schiavo ex. rel. Schindler v. Schiavo, No. 05-11628 (11th Cir. March 25, 2005). Jurisdiction, however, is a prerequisite to the legitimate exercise of judicial power, and therefore we may not hypothetically assume jurisdiction to avoid resolving hard jurisdictional questions. I write separately to explain how various provisions of Pub. L. 109-3 are an unconstitutional infringement on the core principles of separation of powers and how this dynamic nullifies the exercise of federal jurisdiction in this case.


Separation of Powers:

Justice Birch's primary constitutional focus was grounded in the separation of powers, noting:

It is axiomatic that the Framers established a constitutional design based on the principles of separations of powers (Citations omitted). The Framers established three coequal but separate branches of government, each with the ability to exercise checks and balances on the two others. And to preserve this dynamic, the "Constitution mandates that 'each of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, or either or the other.'" (Citations omitted).

Because of the important constitutional role assigned to the judiciary by the Framers in safeguarding the Constitution and the rights of individuals, see, Federalist No. 78 (A. Hamilton), the execution of this constitutional mandate is particularly important when legislative acts encroach upon the independence of the judiciary . . . (citing Federalist No. 48 for the proposition that the Framers enshrined in the Constitution separation of powers principles because of past legislative interference with the judiciary); . . . "[T]he independence of the judiciary [must] be jealously guarded." Accordingly, we risk imperiling our constitutional design if we do not inquire as to whether Pub. L. 109-3 infringes on the independence of the judiciary guaranteed by Article III of the United States Constitution.


Justice Birch has prophetic insight, in declaring this law unconstitutional as a violation of the separation of powers. Its intent was a clear attempt by the legislative and the executive to encroach on an independent and co-equal judiciary and to emasculate the substantive and procedural due process achieved by the Florida State courts in several years of litigation and appeals. The Florida Supreme Court reached a similar conclusion on the same constitutional principle when the Florida Legislature and Governor Bush tried to similarly encroach on the Florida judiciary.

The legislative confirmation of jurisdiction on the federal courts of the Terri Schiavo matter was not the abuse of separation of powers. Rather, as Justice Birch explained:

The Act, however, goes further. Section 2 of the Act provides that the district court : (1) shall engage in "de novo" review of Mrs. Schiavo's constitutional and federal claims; (2) shall not consider whether these claims were previously "raised, considered, or decided in State court proceedings", (3) shall not engage in "abstention in favor of State court proceedings"; and (4) shall not decide the case on the basis of "whether remedies available in the State courts have been exhausted." (Citations omitted). Because these provisions constitute legislative dictation of how a federal court should exercise its judicial functions (known as a "rule of decision"), the Act invades the province of the judiciary and violates the separation of powers principle.

An act of Congress violates separation of powers if it requires federal courts to exercise their Article III power "in a manner repugnant to the text, structure, and traditions of Article III." (Citations omitted). By setting a particular standard of review in the district court, Section 2 of the Act purports to direct a federal court in an area traditionally left to the federal court to decide. (Citations omitted). In fact, the establishment of a standard of review often dictates the rule of decision in a case, which is beyond Congress's constitutional power. (Citations omitted). In addition, "the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties." (Citations omitted). By denying federal courts the ability to exercise abstention or inquire as to exhaustion or waiver under State law, the Act robes federal courts of judicial doctrines long-established for the conduct of prudential decisionmaking.


In concluding his opinion, Justice Birch, ominously warned all Americans:

The separation of powers implicit in our constitutional design was created "to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility." (Citations omitted). But when the fervor of political passions moves the Executive and the Legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene. (Emphasis added). If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow. (Citations omitted--Emphasis in original). Accordingly, we must conscientiously guard the independence of our judiciary and safeguard the Constitution, even in the face of the unfathomable human tragedy that has befallen Mrs. Schiavo and her family and the recent events related to her plight which have troubled the consciences of many.
For these reasons, Congress's enactment of this statute encroached on the judicial functions, power, and authority, in contravention to and demonstrably at odds with our Constitution.

Friday, March 25, 2005

Congress' Constitutional Mandate

On March 19, 2005 the United States Senate introduced S.686, which was passed by the United States Congress, both houses, and signed by President Bush at approximately 1:11 a.m. on March 21, 2005. This law purported to endow the Florida federal district court where the Schindler’s filed their first petition with jurisdiction to hear the case. Prior to the passage of this law, federal courts did not have any such jurisdiction to hear the case. The law also required that the federal district court determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. In other words it required the federal court to ignore the entire Florida State substantive and procedural due process already undertaken.

As I review Article I, section 8 of the United States Constitution I see the following enumerated powers given to Congress:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Then, as I review the 10th Amendment I see:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”


Where does the United States Constitution authorize Congress to pass legislation such as S.686?

Terri Schiavo Latest Round of Appeals

The Schindlers filed a first amended complaint and petition for relief yesterday, which was also denied by Judge Whittemore. Predictability, the Schindlers have appealed again to the Eleventh Circuit Court of Appeals in Atlanta. It is highly unlikely they will overturn Judge Whittemore, as they have already denied similar relief two days ago.

The likely endgame will be a second appeal to the United States Supreme Court if the Eleventh Circuit also denies relief. More to come . . .

Thursday, March 24, 2005

Terri Schiavo Final and Supreme Appeal

On Wednesday, March 23, 2005 the parents of Terri Schaivo filed an Emergency Application for Stay with the United States Supreme Court, asking that the high court immediately stay the lower probate court's order for removal of Ms. Schiavo's feeding tube. I have not read the entire 44 page application; however, from my brief review of the application it appears to rely on the same, or very similar arguments already rejected by two lower federal trial and appellate courts.

My guess (and it's only a guess) is that the High Court will not intervene in the case. It has declined to become involved on approximately three prior occasions in this case; however, the difference about this particular application is that it follows the unprecendented political actions of Congress and the Executive branches of government. Still, I would be surprised to see the High Court grant Certiorari and become involved in this case. The most efficient way to end this process is for them to let the lower federal appellate ruling stand. I will post the High Court's ruling once it is available.

Update:

The Schindlers have apparently begun another round of litigation at the federal district court level, seeking anew an injunction mandating that Ms. Schiavo's feeding tube be reinserted. They have filed a first amended complaint ( adding additional causes of action) with Judge Whittemore, the federal district court judge who denied the first injunction which began the round of federal appellate review.

Supreme Court Update:

CNN is reporting that the Supreme Court has denied the Schindler appeal. I have not found the actual denial, but will post it as soon as it is available. More to come . . .

Wednesday, March 23, 2005

Terri Schiavo Dept. of Children and Families Intervention

The Florida Department of Children and Families has apparently filed a motion with the Florida trial court having jurisdiction over this case to try and take protective custody of Terri Schiavo. No official word yet on the court's ruling on this motion. The legal basis is supposedly a misdiagnosis of Ms. Schiavo being in a persistent vegatative state. More to come. . .

Terri Schiavo En Banc Review Denied

This afternoon, the Eleventh Circuit Court of Appeals has denied an En Banc review of the Terri Schiavo case. The only appellate avenue left is the United States Supreme Court; however, with several opportunites in the last weeks to inject itself in this case, the high Court has refused to become involved. The Eleventh Circuit's most recent order is posted here.

More later . . .

Terri Schiavo Appeal Denied

Early this morning, the Eleventh Circuit Court of Appeals denied the Schiavo parents' appeal. A careful reading of the opinion will reveal I think important points, apparently lost on the congressional majority and the President in a rush to subvert the Constitutional process upon which our legal system rests.

The appellate court noted:

Controlling precedent is clear that injunctive relief may not be granted unelss the plaintiff establishes the substantial likelihood of success criterion (Citations omitted) . . . After analyzing each of the plaintiffs' claims, the district court concluded they had failed to show a substantial case on the merits as to any of the claims.


Discussing its scope of appellate review, the court stated:

While the district court conducted de novo review of the plaintiffs' claims, we review the district court's denial of temporary injunctive relief only for an abuse of discretion. The scope of review will lead to reversal only if the district court applies an incorrect legal standard, or applies improper procedures, or relies on clearly erroneous fact finding, or if it reaches a conclusion that is clearly unreasonable or incorrect.


The appellate court did not find any abuse of discretion by the federal district court judge, who reveiwed the case. The appellate court agreed that the plaintiffs failed to demonstrate a substantial case on the merits of any of their claims. They also pointed out that the district court judge's opinion was carefully thought-out, and was not an abuse of discretion.

The appellate court then commented on the principal theme of the plaintiffs' argument that the law Congress enacted required that injunctive relief be granted:

Pub. L. No. 109-3 is an extraordinary piece of legislation, and it does many things. Defendants contend that the legislation is so extraordinary that it is unconstitutional in several respects. We need not decide that question (citations omitted) . . . It is enough for present purposes that in enacting Pub. L. No 109-3 Congress did not alter for purposes of this case the long-standing general law governing whether temproary restraining orders or preliminary injunctions should be issued by federal courts.

There is no provision in Pub. L. No. 109-3 addressing whether or under what conditions the district court should grant temporary or preliminary relief in this case. There is no more reason in the text of the Act to read in any special rule about temporary or preliminary relief than there would be to read in a special rule about deciding the case before trial on Fed.R.Civ.P. 12(b)(6) or summary judgment grounds.

Not only that, but Congress considered and specifically rejected provisions that would have mandated, or permitted with favorable implications, the grant of the pretrial stay.


The appellate court then quoted from the Congressional Record an enlightening exchange between Senator Levin, and Senator Frist on the senate floor:

Mr. LEVIN: Mr. President, I rise to seek clarification from the majority leader about one aspect of this bill, the issue of whether Congress has mandated that a Federal court issue a stay pending determination of the case.

Mr. Frist: I would be pleased to help clarify this issue.

Mr. LEVIN: Section 5 of the original version of the Martinez bill conferred jurisdiction on a Federal court to hear a case like this, and then stated that the Federal court "shall" issue a stay of State court proceedings pending determination of the Federal case. I was opposed to that position because I believe Congress should not mandate that a Federal judge issue a stay. Under longstanding law and practice, the decision to issue a stay is a matter of discretion for the Federal judge based on the facts of the case. The majority leader and other bill sponsors accepted my suggestion that the word "shall" in section 5 be changed to "may."

The version of the bill we are now considering strikes section 5 altogether. Although nothing in the text of the new bill mandates a stay, the omission of this section, which in the earlier Senate-passed bill made a stay permissive, might be read to mean that Congress intends to mandate a sta. I believe that reading is incorrect. The absence of any state [sic] provision in the new bill simply means that Congress relies on the current law. Under current law, a judge may decide whether or not a stay is appropriate.

Does the majority leader share my understanding of the bill?

Mr. FRIST: I share the understanding of the Senator from Michigan, as does the junior Senator fro Florida who is the chief sponsor of this bill. Nothing in the current bill or its legislative history mandates a stay. I would assume, however, the Federal court would grant a stay based on the facts of this case because Ms. Schiavo would need to be alive in order for the court to make its determination. Nevertheless, this bill does not change current law under which a stay is discretionary.

Mr. LEVIN: In light of that assurance, I do not object to the unanimous consent agreement under which the bill will be considered by the Senate. I do not make the same assumption as the majority leader about what a Federal court will do. Because the discretion of the Federal court is left unrestricted in this bill, I will not exercise my right to block its consideration.


More to come. . .

Tuesday, March 22, 2005

Terri Schiavo Injunction Denied

Early this morning, federal judge James D. Whittemore denied the petition brought by Ms. Schiavo's parents to re-insert the feeding tube. Judge Whittemore's decision can be read here. In short he concluded that the plaintiffs, (Terri's parents) have not met their legal burden that they have a likely success on the merits of their constitutional claims in this case. More later . . .

Monday, March 21, 2005

Terri Schiavo Update

After a flurry of political activity in the wee hours of Monday morning, The United States Congress passed a private bill for the relief of Terri Schiavo's parents. Leaving aside (for the moment) the wisdom of such congressional action, and its constitutionality, the bill seeks to endow federal courts with jurisdiction to hear the merits of this case.

President Bush, who currently is engaged in running a war in Iraq, is facing the largest federal budget deficit ever, and is also trying to persuade America to change social security, rushed back to Washington to sign this historic legislation. Shortly thereafter, Terri Schiavo's parents filed a complaint for a temporary restraining order, declaratory judgment, and permanent injunctive relief, in a Florida federal district court.

As I watched the congressional debate last evening, I was struck by how little most of the congressmen had any grasp of the facts surrounding the case, its trip through the Florida judicial system, and the medical issues in the case. Before begining their debate Congress should have read A REPORT TO GOVERNOR JEB BUSH AND THE 6TH JUDICIAL CIRCUIT IN THE MATTER OF THERESA MARIE SCHIAVO by Jay Wolfson, DrPH, JD, Guardian Ad Litem for Theresa Marie Schiavo 1 December 2003. It provides an excellent factual recitation of this case, its history, and a review of the medical issues involved. It is a must read for those who really want to know more about the facts of this tragic case.

At 3:00 p.m. Eastern Standard Time, Judge James D. Whittemore of the federal district court heard arguments from both sides. He has not ruled either on the merits of the case, or on the request for a temporary order to reinstate the feeding tube; however, Judge Whittemore expressed reservations about the legal arguments advanced by Ms. Schiavo's parents.

Once a ruling has been issued, I will post it here, and further analyze the court's holding.

Saturday, March 19, 2005

Terri Schiavo's Final Act

I first blogged about Terri Schiavo last September on my personal blog here. Given the most recent political and legal activity focused on Terri and her family, I will re-publish portions of my prior post on this blog, and provide a current update. I also recommend looking at Joe Gandelman's post on this subject over at the Moderate Voice. First, some history of this interesting but very sad case:

On September 23, 2004, the Florida Supreme Court unanimously held in Bush v Schiavo that a law passed by the legislature and signed by Governor Bush to prolong Terri Schiavo's life was unconstitutional. The following facts are taken directly from the court's opinion.

Michael and Theresa Schiavo were married in November 1984, moving to Florida in 1986. On February 25, 1990, Theresa then 27 years old suffered cardiac arrest resulting from a potassium imbalance. Theresa was rushed to the hospital; however, she never regained consciousness.

Since 1990, Theresa has lived in a variety of nursing homes, under constant medical care. She has been kept alive though feeding and hydration tubes inserted into her body. Nursing staff have had to change Theresa's diapers on a regular basis, because of her inability to control her bodily functions.

The second district appellate court described the severity of Theresa's medical condtion when it reviewed the orignal trial court's ruling allowing Michael, Theresa's husband to remove the hydration and nutrition tubes:

The evidence is overwhelming that Theresa is in a permanent or persistent vegetative state. It is important to understand that a persistent vegetative state is not simply a coma. She is not asleep. She has cycles of apparent wakefulness and apparent sleep without any cognition or awarness. As she breathes, she often makes moaning sounds. Theresa has severe contractures of her hands, elbows, knees, and feet.

Over the span of this last decade, Theresa's brain has deteriorated because of the lack of oxygen it suffered at the time of the heart attack. By mid 1996, the CAT scans of her brain showed a severely abnormal structure. At this point, much of her cerebral cortex is simply gone and has been replaced by cerebral spinal fluid. Medicine cannot cure this condition. Unless an act of God, (Not to be confused with an act of the United States Congress--a legislative body so inferior to the Almighty that words cannot adequately describe) a true miracle, were to recreate her brain, Theresa will always remain in an unconscious, reflexive state, totally dependent upon others to feed her and care for her most private needs. She could remain in this state for many years.

In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did. (Emphasis added).

In May 1998, after eight years of Theresa's unconsciousness, Michael petitioned the guardianship court to authorize termination of the nutrition and hydration that kept Theresa alive. Theresa's parents opposed this petition. There was a trial in the circuit court, during which opposing medical opinions were presented (under oath), and opposing doctors cross examined (also under oath). At the conclusion of this trial, the guardianship court issued an extensive written order authorizing the discontinuance of Theresa's artifical life support.

The trial court found clear and convincing evidence that Theresa Schiavo was in a persistent vegetative state, and that she would have elected to cease life-prolonging measures if she were competent to make her own decisions. This ruling was appealed, and the appellate court, quoted above, upheld this trial court finding.

The Florida Supreme Court denied any further review; however, Theresa's parents kept the litigation alive by filing futher papers attacking the final judgment of the guardianship court. The case continued to go up and down the Florida appellate court system, with further medical examinations, further evidence presented, and further hearings held. At each juncture, Michael Schiavo prevailed in his legal position. The Florida Supreme court again denied further review. While the Florida Supreme Court does not elaborate why it denied review two times in this case, one can safely conclude that the justices felt all parties received appropriate due process. As a result, Theresa's nutrition and hydration tubes were removed on 10/15/03.

Despite the fact that that both parties to this case had litigated the issues, several times up and down the Florida appellate court system, the Florida Legislature, in its infinite wisdom enacted chapter 2003-418 on October 21, 2003. The legislation was apparently passed without any hearings, medical or other testimony. Rather, as a knee jerk reaction to right wing political interests the Florida Legislature and its governor turned Florida law into a three ring circus.

This statute essentially allowed Jeb Bush to issue a one time stay
to prevent the withholding of nutrition and hydration from a patient, if as of 10/15/03, the patient had no written advance directive, the court had found the patient to be in a persistent vegetative state, the patient had nutrition and hydration withheld, and a member of that patient's family had challenged such withholding. In otherwords, the Florida lawmakers legislated that Jeb Bush, could, with the stroke of a pen force Theresa Schiavo, against her own expressed wishes and against Michael's wishes to be forced fed. Jeb's authority expired 15 days after the signing of the bill, thereby making the legislation inapplicable to any person in the entire world other than Theresa Schiavo.

Michael Schiavo, again turned to the court system to protect his family's right of privacy, by attacking the constitutionalty of this absurd piece of legislation. On 5/6/04, the Florida circuit court, (Superior Court equivalent in California) entered a final summary judgment in Michael's favor declaring "Jeb's" law unconstitutional on its face as an unlawful delegation of legislative authority, violative of the right of privacy, and an unconstitutional encroachment of executive power upon the judiciary.

This ruling was in turn appealed to the Florida Supreme Court, which held on 9/23/04 that the act passed by Florida's Legislature was unconstitutional on its face under Florida law because as applied in this case the act encroached on the judical branch's power. The court further concluded the act was unconstitional on its face because it delegated legislative power to the governor (Jeb Bush). The Florida Supreme Court expertly outlined the concepts of separation of powers, legislative encroachment, and delegation of legislative authority. I highly recommend reading the opinion--a very short 30 pages.

The most recent attempt by Congress to intervene in this case is to have the federal court's decide Terri's fate. Of course, The United States Supreme Court, as recently as Thursday 3/17/05 declined to hear the issues in this case. They certainly could have; however, they did not.

The United States Supreme Court has already heard this issue in a very similar case entitled Cruzan v Missouri Department of Health (1990) 497 U.S. 261. In that case, the Supreme Court held that private United States' Citizens have a fundamental right to refuse medical treatment, including hydration and nutrition. This includes individuals who, like Terri Schiavo cannot make those decisions for themselves, if, based on clear and convincing evidence, lower courts find that the legal representative is authorized to make such a decisions on their behalf. This is exactly the fact pattern in the Terri Schiavo case.

The question naturally arises, if the United States Supreme Court has already ruled on this issue, and if they have already declined involvement in the Schiavo case already, why has a conservative Congress injected itself into this family's personal, private, and painful health care decision process?

It's time to let Theresa, and this case die--and let Michael and his family move on with their lives.

Friday, March 18, 2005

California and Same Sex Marriage

It was bound to happen--a local superior court judge striking down an initiative passed by 61% of California voters. I've only had an opportunity to read newspaper accounts, which you can read from New York, to San Francisco, and Los Angeles. I am also posting a link to the acutal tentative decision by Judge Richard Kramer, so you can read the opinion itself without a press filter. I'm still reading the opinion, so I don't have any analysis yet; however, I will post further after reading and digesting the entire opinion--so check back--probably over the weekend. Of course, this is only one opinion, by one judge, in the most liberal bastion of California, San Francisco. This is the lowest level of review, a trial court, and a long appellate journey is sure to follow.

Nate Oman, an attorney working at Sidley, Austin's Washington D.C office has posted an interesting, and well written legal primer on same sex marriage cases, and posted it on the Times and Seasons Blog . It gives a good general background and basic understanding surrounding these types of legal decisions.

Update: I’ve now had an opportunity to read Judge Kramer’s decision. First, I will update this post by briefly summarizing the legal basis for the opinion, Judge Kramer's analysis and rationale. I will then conclude this post with my own analysis and quotations from other writerw, helping frame my analysis.

Judge Kramer focused the decision on two Family Code provisions, sections 300 and 308.5. Section 300 states that marriage is a personal relation arising out of a civil
contract between a man and a woman. Section 308.5 states that in California only a marriage between a man and a woman is recognized as valid.

The court noted that Family Code section 300 was enacted by the elected state representatives in 1992, replacing the former Civil Code section 4100 (Also enacted by elected representatives of the people). A 1977 amendment to section 4100, again through the elected representatives of the people of the state of California, added that marriage was the union between a man and a woman. (10:4-9).

Family Code section 308.5 resulted from the popular Proposition 22, passed by the people directly on March 7, 2000 by an overwhelming majority vote, 61.4% to 38.6%, a 23 point margin. Judge Kramer took judicial notice of the fact that the legislative history of Family Code section 300 and the voter materials for Proposition 22 made it abundantly clear that both the elected state legislature and the people themselves intended to clarify that under existing law, marriage in California was limited to a man and a woman. (10:10-16).

Judge Kramer noted that same-sex marriage advocates argued that these Family Code provisions violated the equal protection and privacy provisions of the California State Constitution, Article 1 section 7, subdivision (a), and Article I section 1. (3:7-11). He concluded the legal challenge could be resolved on equal protection grounds alone, and did not reach the privacy arguments. (3:7-11).

Judge Kramer recognized that most legislation creates classifications for differing purposes. This can lead to advantages of disadvantages based on those classifications. The power to classify is rooted the United States Constitution, which in turn allows individual states the power to promote the general welfare of its citizens. The state, however, must ensure the classifications must conform with the equal protection clause, which states that no person shall be denied equal protection under the law. (3:12-25).

To determine whether a classification comports with the equal protection clause, the court applies one of two tests: The rational basis test, or the strict scrutiny test. Under the rational basis test, courts usually look at economic and social welfare legislation, where the classifications from the legislation are not “suspect”, and do not implicate fundamental rights. (4:1-7). The burden is on a challenging party to demonstrate the absence of any rational connection to a legitimate state interest.

The strict scrutiny test is more stringent, and arises where “suspect” classifications or fundamental human rights are implicated by the legislation creating the classifications. The court will apply a “strict scrutiny” analysis to the subject classifications. The state must show that it has a compelling interest which justifies the law, and that any distinctions created by the legislation are necessary to further its purpose. (4:17-25).

Judge Kramer concluded that both these Family Code sections, 300, and 308.5 violated the equal protection clause of the California State Constitution, failing both the rational basis test, as well as the strict scrutiny test. (16:9-14; 23:2-13). He concluded these code sections failed to bear some rational relationship to a conceivable legitimate state purpose. (5:16-24). No rational purpose exists for limiting marriage in California to a man and a woman. (6:1-2).

In reaching these conclusions, Judge Kramer rejected the argument that the male/female marriage requirement embodied California’s traditional understanding that marriage is and has been always understood to be a union between a male and female. (6:3-10). He also rejected the argument that California has already granted same-sex couples the same rights that marriage entails. (8:4-9). Another argument rejected by Judge Kramer was that California has a legitimate state purpose in restricting marriage to a man and woman because a primary purpose of marriage is procreation. (12:1-3).

Judge Kramer relies on prior California cases striking down the state’s ban on interracial marriages as violating the United States’ equal protection clause to justify his conclusions in this case. Specifically, he cited Perez v Sharp (1948) 32 Cal. 2d 711 several times, pointing out that California laws banning interracial marriage were unconstitutional, and struck down by the California Supreme Court in Perez. He also cited Brown v Board of Education (1954) 347 U.S. 483 for the proposition that providing registered domestic partnership laws was akin to providing “separate but equal educational opportunities to racial minorities.” (9:14-23).

My Analysis of Judge Kramer’s Decision

I strongly disagree with Judge Kramer’s conclusions and his rationale for reaching those conclusions. First, I am troubled that he seems to rely almost on exclusively on federal law, either through the interpretation of California courts or federal courts to conclude that California’s equal protection clause prohibits the California legislature or California’s voters from enacting laws limiting marriage to a man and a woman. It is inconsistent to claim California’s equal protection clause prohibits the Family Code sections in question, and rely on state and federal court cases that construe the Equal Protection Clause of Fourteenth Amendment to The United States Constitution.

Second, Judge Kramer is wrong about the relationship between California’s man and woman marriage requirement and legitimate state interests. Thomas Jefferson is correct that all men (and women) are created equal; however, simple biology dictates that not all sexual relationships are created equal. Procreation requires both a man and a woman. A homosexual union or “marriage” will never produce children. This is a biological fact that constitutional confusion cannot ignore.

Marriage, between a man and a woman, for thousands of years has enjoyed certain legal and societal privileges, and should continue to do so for obvious reasons. Traditional marriage fosters the most ideal environment for the conception, rearing, and education of children. Marriage between a man and a woman is the basic building block of a stable society. More and more research suggests that children raised in traditional families with both an active mother and father are not only stronger families, but make for stronger societies. I can’t think of a more compelling state interest than fostering stronger families, and by extension stronger societies.

Not long ago, the Massachusetts Supreme Court in Goodridge v Department of Public Health struck down their state marriage laws on similar grounds that Judge Kramer used here. In response, several legal scholars took issue with the Goodridge analysis and opinion. These responses are equally applicable to Judge Kramer’s analysis and I want to share some of them here.

Mitt Romney, Massachusetts’ governor responded to Goodridge in an Op Ed piece in the Wall Street Journal on 2/5/04. In part Governor Romney observed:

Contrary to the court's opinion, marriage is not "an evolving paradigm." It is deeply rooted in the history, culture and tradition of civil society. It predates our Constitution and our nation by millennia. The institution of marriage was not created by government and it should not be redefined by government.

Marriage is a fundamental and universal social institution. It encompasses many obligations and benefits affecting husband and wife, father and mother, son and daughter. It is the foundation of a harmonious family life. It is the basic building block of society: The development, productivity and happiness of new generations are bound inextricably to the family unit. As a result, marriage bears a real relation to the well-being, health and enduring strength of society.

Because of marriage's pivotal role, nations and states have chosen to provide unique benefits and incentives to those who choose to be married. These benefits are not given to single citizens, groups of friends, or couples of the same sex. That benefits are given to married couples and not to singles or gay couples has nothing to do with discrimination; it has everything to do with building a stable new generation and nation.

It is important that the defense of marriage not become an attack on gays, on singles or on nontraditional couples. We must recognize the right of every citizen to live in the manner of his or her own choosing. In fact, it makes sense to ensure that essential civil rights, protection from violence and appropriate societal benefits are afforded to all citizens, be they single or combined in nontraditional relationships.


Mary Ann Glendon, the Learned Hand Professor of Law at Harvard Law School wrote in the Wall Street Journal on 2/25/04 in part:

President Bush's endorsement of a constitutional amendment to protect the institution of marriage should be welcomed by all Americans who are concerned about equality and preserving democratic decision-making. "After more than two centuries of American jurisprudence and millennia of human experience," he explained, "a few judges and local authorities are presuming to change the most fundamental institution of civilization."

Those judges are here in Massachusetts, of course, where the state is cutting back on programs to aid the elderly, the disabled, and children in poor families. Yet a four-judge majority has ruled in favor of special benefits for a group of relatively affluent households, most of which have two earners and are not raising children. What same-sex marriage advocates have tried to present as a civil rights issue is really a bid for special preferences of the type our society gives to married couples for the very good reason that most of them are raising or have raised children. Now, in the wake of the Massachusetts case, local officials in other parts of the nation have begun to issue marriage licenses to homosexual couples in defiance of state law.

A common initial reaction to these local measures has been: "Why should I care whether same-sex couples can get married?" "How will that affect me or my family?" "Why not just live and let live?" But as people began to take stock of the implications of granting special treatment to one group of citizens, the need for a federal marriage amendment has become increasingly clear. As President Bush said yesterday, "The voice of the people must be heard."

Indeed, the American people should have the opportunity to deliberate the economic and social costs of this radical social experiment. Astonishingly, in the media coverage of this issue, next to nothing has been said about what this new special preference would cost the rest of society in terms of taxes and insurance premiums.

The Canadian government, which is considering same-sex marriage legislation, has just realized that retroactive social-security survivor benefits alone would cost its taxpayers hundreds of millions of dollars. There is a real problem of distributive justice here. How can one justify treating same-sex households like married couples when such benefits are denied to all the people in our society who are caring for elderly or disabled relatives whom they cannot claim as family members for tax or insurance purposes? Shouldn't citizens have a chance to vote on whether they want to give homosexual unions, most of which are childless, the same benefits that society gives to married couples, most of whom have raised or are raising children?

If these social experiments go forward, moreover, the rights of children will be impaired. Same-sex marriage will constitute a public, official endorsement of the following extraordinary claims made by the Massachusetts judges in the Goodridge case: that marriage is mainly an arrangement for the benefit of adults; that children do not need both a mother and a father; and that alternative family forms are just as good as a husband and wife raising kids together. It would be tragic if, just when the country is beginning to take stock of the havoc those erroneous ideas have already wrought in the lives of American children, we should now freeze them into constitutional law. That philosophy of marriage, moreover, is what our children and grandchildren will be taught in school. They will be required to discuss marriage in those terms. Ordinary words like husband and wife will be replaced by partner and spouse. In marriage-preparation and sex-education classes, children will have to be taught about homosexual sex. Parents who complain will be branded as homophobes and their children will suffer.

Religious freedom, too, is at stake. As much as one may wish to live and let live, the experience in other countries reveals that once these arrangements become law, there will be no live-and-let-live policy for those who differ. Gay-marriage proponents use the language of openness, tolerance and diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination the likes of which we have rarely seen before. Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against. The ax will fall most heavily on religious persons and groups that don't go along. Religious institutions will be hit with lawsuits if they refuse to compromise their principles.


Shelby Steele, a fellow at the Hoover Institution took to task the gay rights movement as masquerading in a suit of civil rights to further an agenda of acceptance rather than a pursuit of civil rights base on equality under the law. Mr. Steele, on 3/18/04 in the Wall Street Journal opined:

And now gay marriage is everywhere being defined as a civil rights issue. In San Francisco, gay couples on the steps of city hall cast themselves as victims of bigotry who must now be given the "right" to legally marry in the name of "equality" and "social justice." In the media, these couples have been likened to the early civil rights heroes whose bravery against police dogs and water hoses pushed America into becoming a better country. "I don't want to be on the wrong side of history," a San Francisco radio host said about gay marriage. "Maybe we're looking at thousands of Rosa Parks over at city hall."

So, dressing gay marriage in a suit of civil rights has become the standard way of selling it to the broader public. Here is an extremely awkward issue having to do with the compatibility of homosexuality and the institution of marriage. But once this issue is buttoned into a suit of civil rights, neither homosexuality nor marriage need be discussed. Suddenly only equity and fairness matter. And this turns gay marriage into an ersatz civil rights struggle so that dissenters are seen as Neanderthals standing in the schoolhouse door, fighting off equality itself. Yet all this civil rights camouflage is, finally, a bait-and-switch: When you agree to support fairness, you end up supporting gay marriage.



Mr. Steele pointed out that:

[G]ay marriage is not really struggle for freedom based on a civil rights argument. Rather, it’s a struggle for social acceptance by a currently politically correct body thought:

But gay marriage is simply not a civil rights issue. It is not a struggle for freedom. It is a struggle of already free people for complete social acceptance and the sense of normalcy that follows thereof -- a struggle for the eradication of the homosexual stigma. Marriage is a goal because, once open to gays, it would establish the fundamental innocuousness of homosexuality itself. Marriage can say like nothing else that sexual orientation is an utterly neutral human characteristic, like eye-color. Thus, it can go far in diffusing the homosexual stigma.

In the gay marriage movement, marriage is more a means than an end, a weapon against stigma. That the movement talks very little about the actual institution of marriage suggests that it is driven more by this longing to normalize homosexuality itself than by something compelling in marriage. The happiness that one saw in the faces of the newly married in San Francisco seemed to come primarily from the achievement (if only illusory) of ordinariness. After all, many of them had lived together into old age. Love does not require marriage but, for gays, ordinariness does. And happiness for these couples was in the imprimatur of ordinariness.

Gay marriage, however, differs fundamentally from traditional notions of race and civil rights. Mr. Steele accurately points out that homosexuality is no the same type of difference as are racial differences:

But marriage is only one means to innocuousness. The civil rights framework is another. To say that gay marriage is a civil rights issue is to imply that homosexuality is the same sort of human difference as race. And even geneticists now accept that race is so superficial a human difference as to be nothing more than a "social construct." In other words, racial difference has been made officially innocuous in our culture, and its power to stigmatize has been greatly reduced. Evidence of this is seen in the steady, yet unremarked, rise in interracial marriage rates for all of our races. So if gay marriage, like race, is about civil rights, then homosexuality is a human difference every bit as innocuous. Thus, America should treat homosexuality like it treats race and give gays the "right" to marry as it once gave blacks the right to vote.

So gays benefit from the comparison to both race and civil rights, and this has provoked hostility and even outrage in black America. Black leaders as liberal as Jesse Jackson have distanced themselves from the gay marriage issue, and among black churches an actual movement against gay marriage is unfolding. There is a religious dimension to this, but more broadly there is a simple resentment at having blackness implicitly compared to homosexuality.

The civil rights movement argued that it was precisely the utter innocuousness of racial difference that made segregation an injustice. Racism was evil because it projected a profound difference where there was none -- white supremacy, black inferiority -- for the sole purpose of exploiting blacks. But there is a profound difference between homosexuality and heterosexuality. In the former, sexual and romantic desire is focused on the same sex, in the latter on the opposite sex. Natural procreation is possible only for heterosexuals, a fact of nature that obligates their sexuality to no less a responsibility than the perpetuation of the species. Unlike racial difference, these two sexual orientations are profoundly -- not innocuously -- different. Racism projects a false difference in order to exploit. Homophobia is a reactive prejudice against a true and firm difference that already exists.

Institutions that arise to accommodate these two sexual orientations can never be exactly the same. Across time and cultures, marriage has been a heterosexual institution grounded in the procreative function and the responsibilities of parenthood -- this more than in either love or adult fulfillment. Marriage is simply the arrangement by which humans perpetuate the species, whether or not they find fulfillment in it.

Mr. Steele concludes that gay marriage does not and cannot fit into the traditional notions of marriage between men and women. There is no procreation is gay marriage, and no natural function other than fulfillment of the adult love, upon which it is premised:

The true problem with gay marriage is that it consigns gays to a life of mimicry and pathos. It shoehorns them into an institution that does not reflect the best possibilities of their own sexual orientation. Gay love is freed from the procreative burden. It has no natural function beyond adult fulfillment in love. If this is a disadvantage when children are desired, it is likely an advantage when they are not -- which is more often the case. In any case, gays can never be more than pretenders to an institution so utterly grounded in procreation. And dressing gay marriage in a suit of civil rights only consigns gays to yet another kind of mimicry. Stigma, not segregation, is the problem gays face. But insisting on a civil rights framework only leads gays into protest. But will protest affect stigma? Is "gay lovers as niggers" convincing? Protest is trying to hit the baseball with the glove.

The problem with so much mimicry is that it keeps gays from evolving institutions and rituals that reflect the true nature of homosexuality. Assuming, as I do, that gays should have the option of civil unions that afford them the legal prerogatives of marriage, isn't it more important after that to allow quiet self-acceptance to lead the way to authentic institutions?

The stigmatization of homosexuals is wrong and makes no contribution to the moral health of our society. I was never worried for my children because they grew up knowing a gay couple that lived across the street, or because several family friends were gay. They learned early what we all know: that homosexuality is as permanent a feature of the human condition as heterosexuality. Nothing is gained in denying this. But neither should we deny that the two are inherently different. The gay marriage movement denies this difference in order to borrow "normalcy" from marriage. Thus, it is a movement born more of self-denial than self-acceptance, as if on some level it agrees with those who see gays as abnormal.


Mr. Steele accurately concludes that there are undeniable differences between gay and traditional marriage. They are not constitutional differences that require the protection and invocation of the equal protection clause of either the California or United States’ constitutions. Gay marriage is not a civil right. The ballot box, not the courtroom is where societal social issues such as the definition of marriage should be decided.








Thursday, March 03, 2005

The Ten Commandments

No, not the movie, the original ten edicts from Mount Sinai This week, March 2, 2005, The United States Supreme Court heard oral arguments on two companion cases about whether governmental displays of the Ten Commandments (not the original) violate The Establishment Clause of the First Amendment to the United States Constitution.

For an excellent history of these two cases, and their factual basis, please review A Monumental Decision written by the Pew Forum on Religion and Public Life. The essential question is whether the governmental display of these monuments amounts to governments' endorsement of The Commandments' religious message.

The reason the high Court agreed to hear this case, is that two lower federal appellate courts issued conflicting opinions about whether such a display amounts to the governmental endorsement of a religious message, therefore violative of the Establishment Clause of the First Amendment. These courts were the fifth and sixth circuit court courts of appeal.

The fifth circuit upheld the presence of a stone monument inscribed with the Ten Commandments on the State Capitol Grounds. The sixth circuit, held that the posting of the Ten Commandments in the county courthouses of McCreary and Pulaski Counties in Kentucky, was to achieve a religious purpose and thereby violated The Establishment Clause. As a result of this split of authority between these two federal appellate court, the United States Supreme Court agreed to hear their respective appeals, and decide what the law is with respect to this particular issue. The Supreme Court will often take cases which present significant federal questions, and about which, as here, there are conflicting legal opinions from different courts.

The high court's decision will probably not be published until the end of its term, likely in June, 2005. I will post the link to its final decision, and provide my legal analysis and observations. I welcome your comments as well, both now and then.

Wednesday, March 02, 2005

Hello Central Coast

Welcome to the Central Coast's ONLY Law Blog---NipomoBlawg! That's right, brought to you by Murray & Whitehead, Nipomo's largest law firm, a partnership of lawyers consisting of Guy W. Murray and Nigel A. Whitehead. We will be blogging about legal issues of interest, including local, state, and national. If anyone has questions, or legal issues you would like to see discussed, feel free to send an email to nipomolaw@aol.com. And, as "w" would say....bring it on!

Tuesday, March 01, 2005


Lady Justice Posted by Hello