May 31, 2008

Proud Mary

I saw a CD of the Ike and Tina Turner show on sale for $1.99 the other day. I was going to buy it, because my Dad told me that the Ike and Tina Turner show was a kick-ass good concert. But I saw the program listing didn't have Proud Mary and so I didn't buy it.

Must have been a damn good show.

Cocktail Philosophies

The Wife and I went over to our friends' house yesterday for burgers and cocktails. Our friends have kind of different ways of approaching the preparation of food and drink than I do.

None of this is to say that our friends do things wrong. They just do them differently. Quite a bit differently.

I use the materials at hand, guesstimate portions and spices. I dig in with my bare hands and knead raw ground beef, and prefer to use lots of fire for my meat. I kind of like the carbony taste of those burnt ends of meat that form on the bottom of the burger. So I need a propane barbeque -- it gets hotter faster and spreads the flame out more. A charcoal barbeque, with the briquettes arranged in a geometrically perfect pyramid, is simply not the same thing as the raging fires of petroleum gas savagely mating with its self-destructive girlfriend, fire. Even if the briquettes are already heated to an appropriately ashen amber glow of the coals reaching the perfect temperature gradient.

If I must use charcoal, I dump three-quarters of the briquettes in, let them fall out where they may, enjoy liberal use of lighter fluid, and create a heat source powerful enough to fire ceramics. Now you're talking.

So too with cocktails. Our friends possess every kind of liquor known to man. They have a cocktail book with recipes for a huge variety of cocktails and they buy the really obscure liqueurs and take great pleasure in measuring out exact-to-the-mililiter levels of the shot glasses and contents. Only fresh fruits and the exact booze called for in the bartender's guidebook will do. Do not stir when the recipe calls for a shake.

Me, I have some difficulty tasting the difference between the forty-seven different kinds of clear anise-flavored liqueurs imported from the Mediterranean countries of Europe. If the book calls for Sambucca and all I have is Ouzo, you know what, that's pretty damn close. Yes, I know Sambucca and Ouzo are not the same thing. I know Campari is red and Galleano is yellow. But if you close your eyes, could you really taste the difference? So when it's time to make drinks, I'll gather the materials at hand and do the best I can. No vermouth around? Okay, that means no martinis, but we'll find something!

Example: I wanted a drink tonight, and The Wife said she'd enjoy one, too, and that confined my spectrum to something sweet. Okay, we've got about a glassful of pomegranate juice, so we can use that as a base. What mixes with a strong fruit juice? Vodka, of course. But vodka and pom juice isn't very interesting. And kind of heavy. So let's lighten it up with some 7-Up. And to finish off the fruit cocktail with some orange taste, so I floated some Grand Mariner on it. The result was a cold, sweet, pink thing with enough kick to get the job done and still sweet enough to allow The Wife to enjoy it.

It's sweet and fruity. Maybe I should call it the "Elton John." No, no, I'm just kidding, Sir Elton. All in good fun, right, Gov'ner? Now, the Sweet-and-Fruity Drink With No Name may or may not be found in my friend's bartender's guidebook. But it's getting the job done and leaving me a little loopy. In case you couldn't tell.

I'm not suggesting that our friends couldn't improvise. That's just not the style they've adopted these days. And they play poker and enjoy good food, so vive l'difference! It's fun to hang out with them.

Did the Democrats Solve The Riddle of Florida and Michigan Today?

Basically, after a day of wrangling at the Rules Committee, the compromise that got worked out today was this: Florida and Michigan will seat all of their delegates, but each delegate will count as one-half of a vote. This seems to be generally acceptable to most factions, but Clinton's proxy at the committee, Harold Ickes, made clear that "Mrs. Clinton has instructed me to reserve her rights to take this to the credentials committee."

"Mrs." Clinton, Mr. Ickes? I'm hardly a fan, but I've been consistent (I think) in using the title "Senator" when I've referred to her by title. She is a sitting United States Senator, and you're still referring to her by her relationship to her husband? She is a powerful and important political figure in her own right. It's entirely appropriate to refer to her as "Senator Clinton." No one refers to, say, Kay Bailey Hutchison as "Mrs. Hutchison" as though she were an appendage to her husband. She's "Senator Hutchison," because she's damn well earned the right to the prestige of that title. Same thing with Elizabeth Dole, who is "Senator Dole" and not just defined by being Bob Dole's husband. So too with Hillary Rodham Clinton. But enough of that.

Effectively this is, belatedly, the same solution to the early Florida and Michigan primaries that the Republicans reached before the primary season even began. Hugh Hewitt was right in that Democrats are so instinctively driven to be exactingly fair to everyone that they would rather be "fair" than play by the rules. Florida and Michigan broke the rules and set their primaries too early. The DNC made the right decision to disenfranchise their delegates, regardless of the justice, democratic principles, or overall fairness of the situation, because the DNC made the decision (regardless of its wisdom) to preserve the primacy of Iowa and New Hampshire in the early primary schedule.

We can certainly debate the wisdom of that. I would be all in favor of a rule that created, for instance, rotating regional primaries. But that's not how things are now and as it stands, the Democrats left themselves in yet another bad rules situation. This is probably a good practical solution to their problem, but it's somewhat amusing to see all the agony that the Democrats have had to go through to reach it.

Democracy -- a great idea in theory, a terrible mess in practice, and still better than any of the alternatives.

Power of Prayer Demonstrated

Pray at the pump. God will have mercy on us and lower gas prices. These people are serious -- they have protests of gas prices by holding hands in a circle around gas pumps in suburban D.C. and pray, with fervor, that God will lower gas prices and provide economic relief to His loyal faithful.

The National average price of gas on the first day of the movement: $3.53.

Yesterday's average price: $3.93.

Keep the faith, guys.

And, in the interest of balance, a brief rebuttal from Reader

May 30, 2008

Marriage Hypothetical

Assume that Columbia, Deseret, and Utopia are all states within the United States of America. Now let's say that the state of Columbia has a law on its books that says marriage licenses will not issue to first or second cousins and that the state of Columbia will not recognize any marriage license issued by any other jurisdiction to a couple that would be disqualified for a marriage license in Columbia.

At the same time, Deseret's laws permit second cousins, but not first cousins to marry. Deseret criminalizes acts of incest, even between consenting adults, with an incestuous relationship being defined by reference to the marriage law. Thus, a sex act between first cousins is illegal incest in Deseret. However, Deseret law also provides that there will be no criminal prosecutions against a married couple for a consensual sex act.

Utopia's marriage laws permits first cousins to marry, but only if 1) the couple has one common grandparent, and 2) at least one of the parties to be married is a resident of the state.

Andy is married to Beatrice, and gives birth to a daughter, Clarisse. He then divorces Beatrice and marries Daphne. Andy and Daphne have a son, Edward. Clarisse marries Frank, and they have a son, Goerge. Edward marries Heloise, and they have a daughter, Irene. Everybody lives in Deseret. Here's our family tree:

So, George and Irene are first cousins, but they share only one common ancestor, who is Andy. They can get married in Utopia as long as at least one of them has established residency in Utopia. As it turns out, George and Irene live in Deseret, but they are right across the border from Utopia. And despite some leery glances from their families, they have been dating since they were both 16 years old and they want to get married.

So George buys a house across the border in Utopia, sleeps in that house 184 nights a year, registers to vote in Utopia, and pays property taxes on that house, which is the minimum required under Utopia law to establish residency in that state. Irene lives in Deseret full time. They both have jobs and pay income taxes in Deseret.

The day after George officially establishes Utopia residency, according to Utopian law. George and Irene apply for and are granted a Utopian marriage license. George immediately sells his house in Utopia, Irene sells her house in Deseret, and they move into George's house, where they engage in consensual sex acts. George and Irene never return to Utopia again.

Are they married? Or could the state of Deseret prosecute them for incest?

Now, let's say after the two have been together for ten years after Utopia issued the marriage license, Irene gets an offer of a really good job at the State University of Columbia, and so they move there. Irene signs up for benefits as part of her job and lists George as her husband. The benefits administrator, however, denies the application as to George, because he says that their marriage is not recognized in Columbia. He makes it very clear that the only reason he is denying George's benefits is because Columbia law does not recognize the Utopia marriage license, because it was issued to people who are first cousins.

If George sues the state of Columbia for medical benefits, should he win?

Do you approve of Columbia's law?

May 29, 2008

Concert Meme

This seems to be going around, and I got hit with it. Fortunately, less work is involved in saying that my first live music concert was George Thorogood and the Delaware Destroyers.

Brian Setzer, recently departed from Stray Cats, opened up. He was every bit as good as Thorogood.

Recognition of California's Authoritaii

I don't precisely know why the decision of the Supreme Judicial Court of Massachusetts in 2004 to require same-sex marriages did not get a reception like this year's decision of the California Supreme Court to do exactly the same thing. But something about the fact that it's California doing it seems to lend it more weight. I have some guesses, though, which I offer here.

I do this because New York's Governor has directed that New York state agencies are to recognize and respect same-sex marriage licenses issued by other states. New York did not do this after Massachusetts' decision. This does not mean that same-sex couples in New York can get married there -- but they can fly out to California, get married here, and then go home and their California marriage license will be recognized by officials in Albany. Or they can cross the border into Canada and get married in Niagara Falls, and honeymoon in the Adirondacks. That seems like something from a 1950's sitcom, except for the whole, you know, "gay" part of the equation.

Nothing illegal about this. 1 U.S.C. § 7, the Defense of Marriage Act, allows a state to recognize another state's same-sex marriage licenses if it wants to -- it just gives the state cover to not recognize the license if it doesn't want to. I also note that California, New York, and Massachusetts have a combined population of over sixty-two million people -- that's more than 20% of America's total population. One in every five Americans presently lives in a jurisdiction that recognizes same-sex marriages. (Yet somehow, the straight people in those states all all still just as married as they were ten years ago before this whole thing started, and getting married, or not, without caring about or even particularly noticing what their gay neighbors do. Sorry -- I couldn't resist taking the swipe. Why this should be a surprise to anyone is still absolutely beyond me.)

What is going on, I think, is that California is expected to produce a large enough number of marriage licenses that it will require other states to deal with the issue systematically, where the number of people leaving Massachusetts let other states deal with the Massachusetts licenses on an individualized basis. New York, at least, is shying away from systematizing and reducing to a matter of policy its discrimination against gays.

Certainly California is a more diverse state and one in which the judges are elected and accountable. And the grounds upon which the decision was made in California are different than the grounds used in Massachusetts -- although both decisions ultimately rested in interpretations of the respective state constitutions.

We Californians flatter ourselves that this could also be partially the result that, despite the criticism levied at California in certain wrinkles of popular culture, California is still recognized as a national leader in the field of law and politics -- in a way that Massachusetts is not. I think proper credit has to go to Massachusetts for having same-sex marriages for four years and proving that life as we know it there will not come to a stop. And Vermont gets the real credit for blazing open the trail for equal rights at all in 1999. But California is going to be the place where it starts to catalyze into the popular consciousness. And if our voters reject the constitutional ban on same-sex marriage in November, as they just might, then that will mean that the largest state in the country, representing over one-tenth of our total population, will have democratically accepted the idea of same-sex marriage.

just might catalyze some change at the Federal level.

May 28, 2008

Ladies and Gentlemen, We Now Return To Our Regularly-Scheduled Programming

I've been kind of sick recently. Not really interested in reading things, writing about things, or anything else for that matter. So not much writing. I shouldn't have even really ventured out to see Indiana Jones, at least not the way that I did. It's not like the movie was going anywhere. But I was well enough to get to work today and I enjoyed it. And I've eaten solid food! Yay! When you haven't done that for several days, it's a real pleasure. Eggs Benedict for dinner? Hey, why not?

So today, the blog is back in publication of new materials for real. Keep on coming back for the same random hodgepodge of politics, musings about food, biographical updates, law, culture, current events, and pretty much anything else that wanders into my mind for long enough to form thoughts worthy of expression.

What exactly are the trailer park girls going round the outside of, anyway?

Tie Vote

Here’s a not very far-fetched scenario for November:


McCain carries these states: Alabama (9), Alaska (3), Arizona (10), Arkansas (6), Florida (27), Georgia (15), Idaho (4), Indiana (11), Kansas (6), Kentucky (8), Louisiana (9), Mississippi (6), Missouri (11), Montana (3), Nebraska (5), Nevada (5), North Carolina (15), North Dakota (3), Ohio 20), Oklahoma (7), South Carolina (8), South Dakota (3), Tennessee (11), Texas (34), Utah (5), Virginia (13), West Virginia (5), and Wyoming (3).

Both candidates get 269 electoral votes. For those of you keeping track of the swing states at home, that’s Nevada, Florida, Ohio, and Missouri for the GOP, and Pennsylvania, Michigan, Iowa, and Colorado for the Democrats. It could happen.

If it does, the incoming House of Representatives will vote on the next President, in blocs by state. That means that, for instance, California will get 53 votes, and all of them will go to a single candidate (Obama, since there are and undoubtedly will be more Democrats than Republicans in the state’s delegation to Congress.) The mat in the House is a little bit different than in the electoral college, because each state loses two votes and DC doesn’t vote at all. So McCain loses 58 votes and Obama loses 45, suggesting that Obama would carry the day in the House by a block vote of 222-213. Then, the Senate will vote on the next Vice-President, individually.

In theory, it would be possible for the Senate to saddle Obama with a Republican Vice-President but this time around, that would be unlikely since the Senate is very likely going to see gains by the Democrats currently in control there (as is the House).

This Is An Eviction Notice, Your Majesty

The Parliament of Nepal issued the King an eviction notice today: you’re not the king anymore, so get out of the Royal Palace in 15 days. His Majesty’s failure to timely vacate the premises, I presume, will result in further legal action being taken against him and may tend to damage his credit rating.

King Gyanendra has been "ruling" the country since 2001, when his nephew the Crown Prince went on a Virginia Tech-style rampage and shot up the Royal Palace, killing most of his family and eventually himself. (For several hours, it seems, he was King himself, having shot his father to death, before he checked himself out.) Gyanedra has proven very unpopular and in 2006 agreed to hand off the bulk of his governmental authority to Parliament.

Here’s where it gets just a bit ambiguous for me. Moving to a democratic form of government is presumptively a good thing. And doing that convinced the Maoist rebels waging guerilla warfare across the country to lay down their arms and register to vote instead. Which they did, and then the Maoists got a huge majority in Parliament. And it’s the Maoists who led the charge to abolish the monarchy today.

So I like the idea of democracy taking power in Nepal and I applaud that the transition there appears to be moving forward peacefully and lawfully. I applaud the Nepalese for dispensing with the form of a king; there is no particular need for such people in today’s modern world despite the romanticism and obviously enjoyable pageantry associated with monarchy. (Yeah, that’s right, I’m looking at you, Elizabeth Windsor.)

But Maoists are not, as a rule, very nice people. Some might go so far as to call them "terrorists." Alas, one of the problems with democracy is that sometimes the people make bad choices. And here, the Nepalese may well be giving power to some people who are not at all shy about using guns to enforce ruthlessly collectivist socialism and ideological purity. A junta is scarcely better than a dictatorship.

Picture source: Time Magazine.

Flavor Tripping

I want to go flavor tripping. Here’s what you do. You eat this berry, this “miracle berry” from east Africa. It numbs your tastebuds to sour and bitter tastes for a few hours. Then, you eat stuff that normally would be too sour or bitter for you to enjoy. Raw lemons. Tabasco sauce. Dark beer (which I actually like just fine normally). Cheap tequila tastes like lemonade.

You can order the fruit here. The guy will even sell you the seed to try and grow your own, although I doubt that a fruit that grows naturally in Ghana (ain’t none higher!) would do well in the desert.

Field Poll Contradicts Fish Wrapper

This morning, the Field Poll released data suggesting that registered voters in California, by a 51% - 42% margin, support the idea of same-sex marriage. This is about an exact reversal of the gap that the Fish Wrapper reported last week.

The age cleavage remains present -- those under 40 are very much in support of the idea, those over 65 are very much agaisnt it. Field also notes that coastal counties favor the idea by 55-37; inland counties oppose same-sex marriages by 52-40. Additionally, there is a cleavage on sex and race lines; women favor the marriage right by 14% but men are close to evenly split; Latinos (who are generally observant Catholics) are generally opposed to extending the marriage right to same-sex couples.

Mamma Mia The Movie


Crush On Soldier Leads To Honor Killing

A seventeen-year-old girl in Basra, Iraq developed a crush on a young (presumably handsome) British soldier. Undoubtedly giggling like a schoolgirl about the boy, she confessed her crush to her friend, and word somehow got back to her dad.

Who killed her.

He stood on his own daughter's throat until she fell unconscious from suffocation, and then he stabbed her to death, screaming about cleansing his honor. His sons -- her brothers -- helped. His wife was beaten to the point of having her arm broken for protesting, and she is now in hiding because she demanded a divorce and her now ex-husband's family has sent her messages saying she deserves the same sort of death as her "whore" of a daughter. The girls' uncles spat on her corpse as they buried her.

One would expect that sort of thing from -- well, from barbarians. At least Mom stood up to protest.

Worse, it looks like they're getting away with it. He was released from police custody abou two hours after being arrested; the local prosecutors aren't picking up the case, and a patron has sent him to Jordan to be out of sight for a few months until the story dies down.

It makes you wonder what we're fighting for.

We ought to open up our universities to Iraqi girls. Let them come here, study, meet American boys and fall in love and get married and naturalize. We get the benefit of their smarts and their industry and the Iraqis get to unburden themselves of the girls they so clearly do not want.

May 27, 2008

Local Yokels Pick A Fight

An auto dealership in Rosamond is running this ad on our local airwaves:
Did you know that there are people in this country who want prayer out of schools, "Under God" out of the Pledge, and "In God We Trust" to be taken off our money? But did you know that 86 per cent of Americans say they believe in God? Since we all know that 86 out of every 100 of us are Christians, who believe in God, we at Kieffe & Sons Ford wonder why we don't tell the other 14 percent to sit down and shut up. I guess I just offended 14 per cent of the people who are listening to this message. Well, if that is the case then I say that's tough, this is America folks, it's called free speech. None of us at Kieffe & Sons Ford is afraid to speak out. Kieffe & Sons Ford on Sierra Highway in Mojave and Rosamond, if we don't see you today, by the grace of God, we'll be here tomorrow.
Hey, I'm all for free speech. Which is why I'm not particularly inclined to sit down or shut up:
Did you know that there are people in this country who think that other Americans are somehow not entitled to live as they choose and sort of resent having other peoples' beliefs shoved down their throats all the time? But did you know that our Founding Fathers built in to our Constitution the guarantee that every one of us would have the right to believe, or not, as we choose? Since we all know that at least 86 out of 100 Americans like having freedom, this Antelope Valley Atheist wonders why we don't tell Kieffe & Sons to read the Constitution before opening their fat yaps. I guess I just offended a local car dealership by writing that. Well, if that is the case, then I say that's tough, this is America folks, and this, too, is called free speech. No American should be afraid to speak out for what they think is right, even if they aren't in the majority. When it's time to buy a car, take your business somewhere other than Kieffe & Sons.
Besides, we all know God drives a Plymouth: "He drove Adam And Eve from the Garden of Eden in His Fury" Genesis 3:23.

By the way, did you notice how Keiffe & Sons' math allows that 86% of Americans are Christians, 14% are secular, and 0% are Jewish, Muslim, Hindu, Buddhist, or anything else? Good math there, fellas.

Work At Home -- Not So Much

Some people can work at home very well. I'm not one of them. I got about two and a half hours of work done today here at home but after that found it hard to keep focused on the job at hand.

Part of it was that The Wife came home from work early herself -- she wasn't feeling feel today, either, although I wonder if it was from staying up so late with me at the E.R. last night. Hopefully that's all that it is. It's not even six o'clock and she's going to bed now, she's so tired. I'm going to let her be so can get the rest she needs.

As for me, I got about a fifth of the way through an appellate document I need to write soon but even if The Wife had stayed at work all day I wonder how much of it I would have got done. The office is just a better environment for me to get work done in. Distractions and all.

May 26, 2008

Enter A Land Where Your Diminishing Expectations Are Exceeded!

So it gets to be about 6:00 tonight. I'm still not feeling hungry. I'm still feeling a gradually-growing pain in my belly, centered below my navel. The Wife keeps on talking about her friend's husband's story, where he didn't feel any pain in his lower right gut but it turned out to be appendicitis anyway and they caught it only just when the appendix was about to burst. So I check on the good ol' WebMD and find that no, appendicitis isn't always accompanied by pain localized on the right. And I know that given that I've had barely anything to eat all day, and no appetite to speak of, that something is indeed wrong with me. Probably some strain of gastroenteritis, I'm thinking.

And it turns out that's right. Colitis, most likely, given the localization of my pain, but that's really cutting ahead to the end of the story -- which isn't the point of my story at all. No, the story asks a simple question. When you determine that you need medical care immediately, and it's a federal holiday, and you don't have a regular primary treating physician, what do you do?

The answer is, you go to the emergency room. Here in the beautiful High Desert, there is only one emergency room open, and that's at Antelope Valley Hospital.

Now, one of the attorneys at work has been involved with the AV Hospital, and reported to us that the average waiting time at the ER there was twelve hours. I figured, if I die of a burst appendix while in the waiting room, well, maybe that'll do some good for someone else; I'll be dead anyway. But no, I didn't really want to die at all.

And The Wife, to her credit, went along with me. I gave her the option of staying home since I knew I'd be there for a long time and there would be sick people around everywhere. But she was a trooper and stayed with me.

Well, here's the upshot. It was about an hour and a half of hanging around the waiting room. Rocky was on the TV; it ended just like it had every other time I've seen it, with Rocky losing the fight on a split decision but earning Apollo Creed's respect for his determination and more importantly, getting Adrienne's love because it was really all for her all along. (Actually, it was some of the best boxing of any of the movies in the series.) But watching grown men getting punched in the gut wasn't really what I wanted to see. This was followed by the local news in Chicago. Not that we're anywhere near Chicago.

Then I got called back for an interview with a duty nurse, who took my vitals and told me to pee in a cup. Then she assured me that no one was in line ahead of me so it would be pretty quick from there.

Well, that was a damned lie. It was only about fifteen minutes, and then I was called back to another waiting room. There, it was nearly another hour, but I did get to see a doctor. The doctor called for a blood and stool sample, and ruefully chided me for having taken anti-diarrheal medicines earlier in the day. Hey, doc, when you have your ass acting like mine has been for two days, you just might resort to extreme measures, too. Of course, he was right; this is only delaying getting rid of the invading pathogens, and frankly, I didn't know any better. Anyway, the stool sample was not forthcoming, despite several noble efforts on my part to contribute to the cause.

After another hour of waiting, it turned out my blood sample is normal, and I had a brief outpatient consult with the ER doctor, who commanded me to stay home and eat nothing but broth and crackers for a day, and after that to work up to "big food" gradually.

Total time in the ER: four hours and fifteen minutes. Valuable parting gifts: cotton ball on my arm from drawing blood; attractive plastic bracelet bearing enough information about me to steal my identity; and a large plastic basin in which to deposit the stool sample. No, no, I'm kidding about the last one -- I told the intern that I didn't want it and wouldn't use it if he gave it to me, and he threw it away there in the hospital.

We had to wait around for a while and it was an unpleasant experience. But given that we had been led to believe that we'd have to wait for twelve hours, four and a half seemed like a blessing. And the staff was all professional and courteous, and all obviously working very hard under very stressful conditions. I was very impressed with all of them, from the security guards to the nurses to the doctor.

I'm not entirely sure of the purpose of staying home tomorrow. I guess it's to avoid stress and get additional rest. Maybe it's to have mercy on my workmates when the anti-diarrheals wear off. Maybe it's to make sure I'm able to control my diet and keep only liquidy, gentle foods coming in. Or all of the above. He's the professional, I'm going to take his advice.

Movie Review: Indiana Jones and the Kingdom of the Crystal Skull

Sometimes, it's helpful to take note of the mood of the reviewer when considering the review. For what it's worth, I saw Indiana Jones and the Kingdom of the Crystal Skull with sharp abdominal pain left over from what I believe to be an attack of food poisoning Saturday evening. (This, by the way, is why I've not been writing too much this weekend.) Our venture out to see the movie was my first prolonged waking activity of pretty much the whole weekend since Saturday; for Saturday, The Wife wanted to watch the other three Indiana Jones movies. My best guess is that I did not fully cook something I ate during the movie marathon and I've been paying the price since then. I'm still not 100% even now, but I'm doing my best to keep solid food down (the catbox in use located a few feet from me is not helping) and to assuage The Wife that I do not have appendicitis. So I went into the movie hoping to be overwhelmed, but not really expecting it to happen.

Story: Professor Jones and his adventures move forward into the 1950's. The Red Scare is in full bloom and for good reason, because the Commies really are everywhere. Fortunately, despite having taken on the years, Indy is still in good shape, still wearing his fedora and still an ace with the bullwhip, so he's ready to follow the trail of a missing colleague to South America to beat the Soviets to the resting place of the eponymous doodad around which the movie revolves. Sadly, the story can't resist going all the way over the top in terms of silliness in its final act, but then again, a silly story with scarcely believable supernatural overtones is part and parcel of the Indiana Jones franchise. There are a few holes in the plot. Big, gaping holes the size of Meteor Crater, but only a few of them.

Script: Having just seen the previous three movies, it seems to me that the script is on par with the other two good ones. (Look, it's not that Temple of Doom completely lacked merit; it just didn't have much of a story and Indy was burdened with an annoying moppet and an even-more annoying producer's girlfriend for sidekicks. The stunts were good. But this movie completely ignored Temple of Doom, as though it never existed, as should all good Indiana Jones fans.) The script gets a little bit talky at points, and the dialogue verges on the precious, especially as Indy interacts with Shia LeBouf's character "Mutt." However, there are some sly comments and wisecracks, even if they are a little bit on the corny side. There is also the sense that history hasn't stopped and that Indy has had a lot of adventures in between the end of Last Crusade and the start of this movie, which is good Indy shouldn't have been sitting on his butt writing books for twenty years.

Cast: Bringing back Karen Allen was a great idea; she was the only one of Indy's girlfriends who could match up with him. Shia LeBouf is okay but ultimately forgettable and lacks gravity. John Hurt is basically wasted. Denholm Elliot is sorely missed. Cate Blanchett was also quite enjoyable as the evil Soviet colonel, and it was easy to tell that she enjoyed being the bad guy. (Soviet Communists make a fine substitute for Nazis, by the way.) I had no use at all for Ray Winstone's character, and he could have been written out, or killed off, without harming the plot. Harrison Ford looks good for his age, although it's hard to believe that a man that age could possibly do the sorts of comic-book acrobatics that are part and parcel of the Indiana Jones. Movie number five is going to have to be Indiana Jones Buys Stock In Ben-Gay if they're going to keep this up.

Cinematography: Setting up the movie visually is solid camera work -- no herky-jerky stuff here; the stuntmen are doing enough moving about for that. The choice of set locations is also good for the narrative -- the prologue contains the mandatory homage to previous Indiana Jones movies. The use of Iguacu Falls for a critical set of shots is candy for the eyes, and so is the mandatory Chased-By-A-Horde shot. Spielberg is direct and on target for his basic, fundamentals-first style of moviemaking. Many movie buffs are impressed that Spielberg chose to shoot on film rather than digitially; I'm not so sure that it makes a huge difference to the average viewer but it probably does contribute to the look and feel of the movie having such a strong continuity with the other three Indiana Jones films.

Costumes: Doctor Jones' choice of apparel hasn't changed at all in the twenty years that have passed; fortunately, the leather jacket, fedora, and tan pants are a timeless enough look that we can let it pass. Other characters look appropriately 1950's-ish, even if in the first act of the movie set in the States, it seems likely that the town-and-gown, men-don't-leave-home-without-a-tie dress code was probably not strictly observed back in real life. The costumes for the Soviet soldiers look appropriately martial and Cate Blanchett's gray Soviet jumpsuit looks appropriate for a true believer in Stalinism.

Effects: It's the stunts. That's really what these movies are about, and this movie delivers. Swordplay, car chases, improbable swinging and vaulting, and good old-fashioned fisticuffs. You'll get your fill of all of the above. It's all very well put-together and engaging. Some of it is quite tense. Somewhat missing from the action sequences is the feel of crazy, episodic dangers; the idea that this is a movie adapted from the old serial films like Flash Gordon is somewhat lost, but there is plenty of danger and plenty of action.

Music: John Williams leaves aside his flirtation with choral scores and works strictly with an orchestra. This is a good move, especially towards the end of the movie. He does his typical good job of setting to score a few themes associated with the characters, in particular the use of the music from Raiders of the Lost Ark associated with Karen Allen. The use of an Elvis song in the opening title shots helps set the movie in the 1950's.

Comments: If the movie intends to "pass the torch" on to Shia LeBouf, it equivocates in doing so, and I'm not sure that I'd enjoy that anyway. I don't see why a cameo from Sean Connery couldn't have been arranged, and I missed Jonathan Rhys-Davies (who played Indy's Egyptian friend Sallah in Raiders and Crusade). For the first hour and a half, the movie is pretty much everything you could have hoped for; the last half hour is somewhat disappointing but workable. Certainly worth the price of admission, Crystal Skull is a fine appendix to the Indiana Jones adventures.

May 23, 2008

Optimistic Headline, But RTFA

The Fish Wrapper can barely conceal its partisanship in the upcoming same-sex marriage initiative fight. You can tell that from reading the headline and the first paragraph of its article reporting on its findings in its poll about the issue.

Here is the critical datum from the poll: registered voters in California support an amendment to the state constitution to prohibit same-sex marriages by a margin of 54% in favor to 35% against. That's a 19 point lead. Another piece of depressing data for those of us who think same-sex marriage is a good thing: demographically, the proponents of the constitutional amendment tend to be older, and older voters tend to be higher-propensity voters, too. The dividing line appears to be at about 45 years of age.

But the Fish Wrapper puts prominently in its reporting all reasons to believe that the vote will be very close -- more than half of the poll respondents do not see anything morally wrong with gay relationships, more than half agree that heterosexual marriages are unaffected by same-sex marriages, and that what matters is that the people in the relationship love one another. And then there's this bit of pure speculation on the part of the Fish Wrapper: "...because ballot measures on controversial topics often lose support during the course of a campaign, strategists typically want to start out well above the 50% support level. [¶] 'Although the amendment to reinstate the ban on same-sex marriage is winning by a small majority, this may not bode well for the measure,' said Times Poll Director Susan Pinkus."

I don't know that this last remark is necessarily true. I rather doubt that anyone who holds a strong opinion on this issue is going to change their mind simply because it is controversial. I hold a strong opinion on the issue and will vote that opinion no matter what. I suspect that there are lots of people who hold the opposite opinion of me, and hold it equally strongly, and that they too are unconcerned with how controversial the opinion or the ballot measure is or might become. They will behave accordingly at the ballot box.

So it appears that the advocates of same-sex marriage in California have their work cut out for them. The challenge will be voter registration and GOTV drives -- since the bulk of the opponents of the initiative (and thus supporters of SSM) are younger and apparently not yet registered, that means that they need to be registered and they need to get incentivized to vote. The good news is that they tend to be more urban and suburban rather than rural, and so registration and GOTV drives will be logistically more feasible. More good news is that such voters will tend to be Democrats or to lean Democratic in their voting disposition, and they will be excited by the Obama campaign -- which will also be of assistance in reaching out to, registering, and getting these new voters to the polls. Mitigating that actual cause for optimism, though, is the fact that California is not "in play" for the election so neither Presidential campaign can be expected to do much here other than raise money to be spent elsewhere.

I'll stick with my earlier prediction that yes, it will be a very close vote. I'm moderately surprised that all it takes is a bare majority of votes to amend the state Constitution; I confess I'd never really looked at that matter before. Regardless of the politics of this issue, I think that maybe an amendment to the state constitution ought to require a super-majority. Constitutions should be things that embody enduring and important values and ideas about government, not the momentary whims of evanescent electoral behavior. Therefore, a constitution should only be amended with an expression of powerful democratic support. If a bond measure requires a super-majority vote, then so should an amendment to the fundamental laws of the state. I like that the Federal Constitution is hard to amend and I wish the California Constitution would be the same way.

May 22, 2008

Passing A Milepost

I covered an appearance for a colleague yesterday in court. I don't normally do criminal defense work but this was just a misdemeanor arraignment so it was going to be an in and out sort of appearance, one where the bulk of the time would be spent waiting for the court's attention. I got things worked out with the D.A. to continue the arraignment so my colleague's client could get the problem worked out (he's charged with being an unlicensed contractor and what the D.A. wants to see is him getting a license).

The D.A. impressed me. She had about twenty files, but seemed to know all of them without reference to the content's files. She was quick-witted and knew what she was looking for out of the defense in each case. She told another defense attorney "Your client owes me twenty AA's." (Whatever an "AA" is. Alcoholics Anonymous meetings?) "He's only done four. If he gives me twenty more, we're good." She just knew this. The negotiations were very fast, very direct, and utterly unemotional -- just like what you see on Law & Order.

And something of a milestone event happened for me. When the judge took the bench, she was smiling and laughing with her staff, and I thought, wow! She's attractive, remarkably so. She seemed to be about my age and did not seem to be wearing a wedding ring. If I were single, I'd definitely want to date her. Of course, I'm not single so that's the end of the matter and I got done what needed to get done. But I'm not blind.

The idea that a smart, attractive single woman of about my age was intriguing enough that I looked her up later to see when she was appointed to the bench, in part because I was curious about her and in part because I wondered what it was in her background that got her elevated. The Governor's press release appointing her says that she's only about four years older than me, was a U.S. Attorney for several years (which means she's really smart and a very sharp lawyer; I've noticed that the U.S. Attorney's office hires only attorneys of a uniformly high caliber), was just appointed to the bench last year, and is apparently being re-nominated for the Sacramento County Superior Court. Since she's already a judge in the Los Angeles County Superior Court, this would be effectively a lateral transfer and the great likelihood is that there is some sort of personal reason for her to want to move to Sacramento while still pursuing her career. That gives me hope for my own career.

She was appointed to the Sacramento court the same day that Governor Schwarzenegger appointed a civil litigator to the bench in San Luis Obispo, which is now the third civil litigator I've seen the Governator has appointed to the bench in the not quite six years he's been in a position to do so -- which would be about double the rate of his predecessors in appointing non-prosecutors to judicial positions. So that gives me hope.

May 21, 2008

GOP Veepstakes

It's time to take a serious look at running mates. The Democrats have effectively sorted out their nomination fight and John McCain knows he'll be up against Barack Obama, not Hillary Clinton. As I've written before, there are several strategic considerations when considering a running mate, the overriding one being finding someone who won't diminish the nominee's chances of victory. There is little that a running mate can do to help, but a lot that this person can do to hurt.

You can use a running mate to 1) try and win a key state (or in rare instances, a region), 2) shore up a policy weakness of the candidate; 3) shore up a political weakness of the candidate, 4) "balance" a ticket by appealing to a constituency that the candidate himself is not strong with, or 5) "double down" on a strength of the candidate that the running mate shares. Also, we need to consider the role of the running mate in the campaign -- often, the running mate is given the job of "attack dog," having to say things that are more aggressive and critical of the other ticket than the candidate himself can say, because the candidate should look "statesmanlike" and "above politics." After all, the voters vote for the guy on top of the ticket, not against the running mate. No one who voted for George W. Bush in 2004 did so because they disliked John Edwards -- maybe they disliked John Kerry, but Edwards was not much of a factor in their minds.

So let's think about some of the likelier choices for McCain. McCain's strengths are his maverick image, bipartisan appeal, foreign policy credibility, and strong military appeal. His weaknesses are that the social conservative wing of the GOP distrusts him despite a more-conservative-than-average record on social issues, his age and health are issues, and he has weak economic policy chops. Because McCain has some bipartisan appeal and clearly needs to build bridges to the core of his own party more than reaching across the aisle, I dispense with the odd notion that he would pick anyone but a lifelong Republican, including his good friend Joe Lieberman.

Charlie Crist, the incumbent Governor of Florida. Florida is as key a state as can exist for Republicans. No realistic scenario for McCain winning the White House permits him to lose Florida. Crist is most desirable because he would greatly strengthen McCain's chances in Florida, where he is quite popular and has a strong machine. Additionally, Crist's endorsement of McCain's candidacy was the factor that put McCain over the top in Florida, effectively pushing McCain into the nomination, so a strong case can be mace that McCain owes Crist the VP spot regardless of any other consideration. He's done a pretty good job with Florida and provides moderate, but not strong, support on the economic policy front. On the downside, although Crist is about twenty years younger than McCain, his dramatic white hair makes him look older, so this leaves McCain open on the "old white guy" flank.

Mike Huckabee, the former Governor of Arkansas and McCain's former rival for the GOP nomination. Social conservatives and particularly a large number of evangelicals believe that Huckabee "came in second" in the primaries and proved his mettle as a tough, persuasive campaigner. They have something of a point. Of the candidates on this list, no one would play the "attack dog" better, and no one would sound quite so nice doing it. Huckabee is genuinely likeable and he would be a strong bridge to the social and religious centers of the right wing. Unlike Mitt Romney, he is an evangelical Baptist and therefore there is no significant religious objection.

Bobby Jindal, the incumbent Governor of Louisiana. Jindal's big strength is that he is quite young (not yet 40) and not white. Normally, one would submit that Jindal has simply not acquired enough experience to be ready for the big time -- he's only been Governor of Louisiana for a year, and had only four years' worth of experience in Congress before that. But Senator Obama has only had four years' experience in Congress and has never been Governor or even the top administrator of anything, and he's managed to get the top spot on the Democrats' ticket, so "inexperience" might not be the best rock for the Democrats to throw at Running Mate Jindal. Rather, the problem with Jindal is that the chances of Obama carrying Louisiana no matter what else happens are quite low (although I can predict with confidence that he'll carry Orleans Parish) so Jindal doesn't bring any electoral votes to the table with him. He has some economic policy savvy but his inexperiencehere minimizes the impact of running Louisiana for all of one year.

Sarah Palin, the Governor of Alaska. No one needs to tell Alaskans to vote Republican for President. They like their guns too much -- and outside of the urban centers of Anchorage and Juneau, they need their guns and a significant portion of the state is employed by the military, by oil companies, or by timber companies. Palin is attractive because of her youth, her gender, her good looks, and the expertise she's brought to the table in Juneau as a very capable governor. Having a woman as a running mate may be a way of McCain drawing some of Hillary Clinton's substantial body of supporters over to his column. But on the other hand, Gov. Palin just gave birth to a child a few months ago, and the logistical challenges of both running Alaska and campaigning, make the choice a difficult one.

Tim Pawlenty, the Governor of Minnesota. Pawlenty is reasonably popular in Minnesota, although his strength there has proven less than was assumed when his name started to be thrown about as a potential running mate for McCain. Pawlenty is young and possesses some economic expertise, and is thought to be "acceptable" to social conservatives. They aren't too excited about him, though, in part because as the Governor of a moderate state, Pawlenty has not been able to pursue red-meat type social policies and in particular is thought to be "weak" on abortion. Chances are reasonably good, though, that Pawlenty could switch Minnesota to the GOP column, depriving the Democrats of votes that they would otherwise rely on in their strategies.

Rob Portman, former U.S. Trade Representative, former Director of the Office of Management and Budget under President Bush (the Younger), former U.S. Congressman from Ohio. Portman is in his early fifties and would therefore vitiate the age issue. He also has substantial economic and foreign policy experience on his resume and has proven his electability. He is from a critical swing state (his former district included suburban Cincinnati and tracked eastward from there along the border with Kentucky) and has a strong network of supporters still in place there. His economic credentials, though, are suspect because his executive experiences comes from the Bush Administration, which has proven to be so fiscally irresponsible that a majority of Republicans, or at least a growing group approaching a majority, have grown critical of it. Portman could too easily be portrayed as being a link to that legacy. On the other hand, Ohio is a very important battleground for the general election.

Jodi Rell, Governor of Connecticut. An interesting proposition that could put Connecticut in play. Positives include her gender and her image as a reformer, having taken over government of Connecticut in the wake of a corruption investigation of her predecessor. She also ordered the state's first execution since Fidel Castro took over Cuba, so she's "tough." Some policy reforms have saved the state some money, and she has pushed for a spending cap as a budgetary control measure, but Connecticut remains a high-tax, high-spending state so she could leave McCain weak on the economic front. She is critical of the No Child Left Behind Act, which is popular in some quarters and unpopular in others. She is a survivor of breast cancer, her disease having been in remission since being treated in its early stages four years ago. Social conservatives will likely distrust her for her advocacy of public campaign financing and an extensive civil union law for homosexual couples.

Mitt Romney, the former Governor of Massachusetts and McCain's former rival for the Republican nomination. Romney obviously can't carry Massachusetts for McCain; Massachusetts will vote Democratic in November, period. Romney's appeal is his economic savvy and the fact that a lot of social conservatives got behind him in the primaries. He would shore up McCain's weak links to the social conservative wing of the party and, being about fifteen years younger than McCain, assauge the age issue a bit also. On the downside, some social conservatives find Romney just as unpalatable as they do McCain, because Romney is a Mormon and not some "regular" kind of Protestant. Romney also brings to the table a lot of fundraising prowess, which is an area of some weakness for McCain, who plans to use public financing for the general election.

If I were advising McCain, my order of preference for consideration of these running mate candidates would be:

1. Romney
2. Crist
3. Jindal
4. Huckabee
5. Palin
6. Rell
7. Portman
8. Pawlenty

I really think Romney is the best choice for McCain although I confess some personal discomfort with the choice.

Chemistry Party

Because you secretly thought of ionic bonding this way in the tenth grade, too:

May 19, 2008


I’ve been noticing that I’m a lot clumsier and klutzy than normal. I’ve been closing doors harder than I intended, dropping things more frequently, and losing my balance for short periods of time more frequently than I had been, say, a month ago. The Wife thinks I’m being either careless or unreasonably angry all the time. I don’t know why I’m doing this, and it’s not intentional.

My Audition For

McDonald’s Southern-Style Chicken Biscuit

In some parts of the country, mainly in the South, you can find Chick-fil-A restaurants, which serve the best tasting fast food chicken in existence. The Chick-fil-A chicken sandwich is very simple: a not-too-bready piece of chicken breast, seasoned with salt and pepper and a little bit of garlic, fried in peanut oil, and served on a simple bun with two slices of pickle. I dislike pickles, so I get mine with none or remove them. McDonald’s is attempting to replicate the success of this with its Southern-Style Chicken Sandwich and its breakfast equivalent, the Southern-Style Chicken Biscuit. However, McDonald’s cannot match Chick-fil-A for two reasons. First, they use the regular vegetable oil to fry their small lump of chicken meat, not peanut oil, so the rich taste does not get into the chicken. Second, and more importantly, somehow McDonald’s has managed to embed the taste of pickle juice in the meat. Even if you like the taste of pickles, this should be disturbing to you. For someone like me who doesn’t really like pickles, it renders the sandwich unappetizing. I’ll not be ordering another one. (Insert red sad-face icon here.)

May 17, 2008

Digest of Opinion in The Marriage Cases

What I'm going to do here is try to condense the 116 pages of legal opinion, dense with legal citation, historical research, and policy analysis, that makes up the majority opinion of the Marriage Cases. I realize that this post is not very "brief," particularly by the standards of blogs. But my objective is not to provide a five-sentence summary of the case, my objective is to educate the reader about what the opinion really does, dwelling on the important reasoning and the critical passages of the opinion. If all you care about is the result, then you don't need to read the opinion at all -- the punchline is, the Court says people of the same sex should be able to get married in California. But if how the Court gets to that result is a matter of importance to you, my digest will get you there a lot faster than the opinion. So here goes:

Introduction. First, the Court frames the issue. This case is as good an example as any of how framing the question can control the answer. More on this later. For now, it suffices to say that the Court framed the issue thus:
...the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated understate law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a "domestic partnership." The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.
Dumbed down somewhat, this looks like the question I've been asking: "If domestic partnership and marriage do the same thing from the state's point of view, why not leave it at that?" As will be seen, the Court said, "Because that would make it 'separate but equal' which is, in fact, inherently unequal." But the Court did not stop there. Stay tuned, law fans! Now we come to the numbered sections of the Court's analysis.

I. Procedural History. First, the City and County of San Francisco started issuing marriage licenses to same-sex couples. The Supreme Court said, "Knock it off until we rule on whether you can do that." Then a bunch of lawsuits got filed. The trial court decided that same-sex marriage was OK. Then it got appealed. The appeals court said no, it's not. Then it got to the Supreme Court, and this opinion resulted.

II. Standing. Everyone has standing to assert or defend claims challenging the same-sex only marriage laws except for the Prop. 22 Legal Defense Fund. The Fund was arguing in favor of upholding the existing laws, and that's the job of the State. The Fund cannot argue in the State's place because the State must defend itself and the Attorney General has a statutory duty to defend the law to the best of his ability. The fact that the Attorney General is Jerry Brown and the Fund believes that AG Brown was secretly trying to lose the case because of his own policy preferences is no reason to give some advocacy group standing to appear in place of the State. And it looks like the State offered, and the Court considered, serious arguments in defense of the statutes, arguments that had worked in other states.

III(A). History of the Law of Marriage. Marriage has historically been between a man and a woman. The legislative history of the marriage laws shows that except for between 1971 and 1977, the statutes have contained an explicit limitation of the right to marry to make marriage opposite-sex specific, and the common law history of marriage has never, until very recently in historical terms, even contemplated same-sex marriages.

It is of no small amount of interest that marriage is framed, in the older construction of the law, as a contract. The original state constitution, adopted in 1849, provides that "No contract of marriage, if otherwise duly made, shall be invalidated by want of conformity to the requirements of any religious sect." Thus, civil marriage has always been distinguished from religious marriage. For instance, A Catholic might divorce and re-marry; in the eyes of the Catholic Church, both the divorce and the second marriage are nullities and that Catholic is still married to the original spouse in the eyes of the Church. But as far as California is concerned, the second marriage, and not the first, is the one that is valid. This has always been the way things are in California, and it probably is how things are in every other jurisdiction in the U.S., for that matter.

Even now, Family Code § 300(a) defines marriage as: "a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500)." The clause "between a man and a woman" in that section is part of what was stricken by the opinion in the Marriage Cases. But it is still framed as a contract.

You can skip this paragraph if you want to avoid my opinion about this wrinkle in the law, although the point comes up again in section IV(A). [I do not like the notion that marriage is framed in contractual terms. A contract is an enforceable transaction between two or more parties, consisting of an offer, an acceptance, and an exchange of valuable consideration. Marriage, it seems to me, is something other than a transaction. It is a relationship. It requires legal recognition by the State. The Court in the Marriage Cases is right to call it a "union" of two individuals which "confers significant legal rights and obligations," and the establishment of "an officially recognized and protected family." Families are not properly seen as governed by the law of contracts, and the law rightly does not treat family relationship the same way it treats commercial relationships. I've suggested that employment is "more than a contract," because the law imposes so many mandatory obligations for how employer and employee relate to one another that the contractual obligations between the parties are so frequently unimportant for determining their legal rights that the contractual component of that relationship is, at best, an afterthought. If employment is not "just" a contract, then how much more so is that true of marriage? If marriage is a critical part of our society, one of the building blocks of our very civilization, as well as a solemnized, dignified, and respected institution between two people which (hopefully) includes an exchange of deep love, then it seems crass indeed to treat that institution the same way we would pork belly futures. Now, we return to our regularly scheduled programming.]

After this, the Court tries to unpack what exactly is meant by "the right to marry." If you have this right, how do you exercise it? What does it look like when you do? What, in order words, are the component substantive rights embraced by this concept? The Court says this right
Remember what I said before about "framing the issue"? Con law geeks like me will note in that passage several steps the Court has taken. First, the Court is using some particular buzzwords: "individual's liberty and personal autonomy." Con law scholars know that this is setting up to make an argument based on either the right to privacy or the right to substantive due process. Secondly, the Court is setting up the right as an individual's right, not as a right that is exercised collectively by two individuals. Third, the Court is only explicitly describing a single facet of these rights, and leaving unexplicated the other legal rights and responsibilities "traditionally associated with marriage." This last step is not necessarily dishonest, intellectually, but it does gloss over a lot of things, like having to comprehensively define what exactly marriage is. Fourth and finally, the right that the Court does choose to explicate is telling: the right to establish "officially recognized and protected family." What's more, that family must be "entitled to the same respect and dignity accorded" to traditional marriage. Without that "respect and dignity," without that official recognition, the Court is saying, the right is not fulfilled.

From there, the Court determines that this is a "fundamental right" and therefore that the "strict scrutiny" test must apply to all attempts by the state to deny the exercise of that right to anyone. At this point, con law geeks all know that the state is going to lose. The strict scrutiny test places the burden of justification on the state, not the challengers, to first identify a compelling state interest, and second, to explain why the law, in its current form, is narrowly-tailored towards fulfilling that compelling interest. "Narrowly-tailored," in turn, means that the law takes away only so much liberty as is necessary to protect the compelling interest of the state. Examples of cases in which the state has managed to meet this burden are few in number and usually deal with things like restricting access to places like military bases in wartime.

Finally, the Court looked at the "legislative history" of Proposition 22, and the other laws that preceded it, limiting the scope of marriage to opposite-sex couples. The Court found that every such effort beyond simply repeating the original definition of marriage found in the 1849 Constitution and the 1873 Civil Code (which in turn was adopted from an earlier New York law) and the traditional assumptions underlying it, was made in response to some effort, somewhere, by same-sex couples to seek marriage. In other words, the people who had put the explicit limitation of the marriage right in the law all did so by saying that the reason they were doing it was to prevent same-sex couples from marrying. In terms of legislative intent, then, the Court powerfully demonstrated that the law was written as it was for the explicit purpose of not allowing same-sex marriages.

III(B). Analysis of the Domestic Partnership Law. This is a relatively new creature in California law, having only passed into law initially in 1999. At first, the Domestic Partnership Law in California only afforded some of the rights and obligations of marriage, and only as recently as 2006 did the Legislature address the issue of filing of joint tax returns and declaration of joint income on those returns. I note, however, that some couples, both married and registered under the DPL, sometimes choose to file individually and not declare joint income, when the permutations of their taxes and earnings are such that this produces a lower overall tax obligation.

Despite what appear to be the best and earnestly well-intentioned efforts of the Legislature to create a DPL that provides a registered couple with as many of the rights, privileges, benefits, and treatment before the law as is within its power (the California Legislature cannot do anything about Federal rights), there remain several significant differences between registration under the DPL and marriage, set forth in the sure-to-be-oft-referred to footnote 24. Some of those differences are highly technical in nature and seem to me to be of only de minimis concern as a realistic matter -- the Domestic Partnership registration is issued by and archived by the Secretary of State and not by a county clerk, for instance, which may be a matter of some administrative inconvenience for the registering couple or the couple seeking a stipulated dissolution of the partnership, but a minor administrative inconvenience does not seem to be a good reason to strike down a law. Yes, in some cases a higher administrative burden could be a material difference justifying an equal protections remedy -- but there was no explanation or illustration of this to demonstrate whether the increased burden of dealing with the Secretary of State rather than a county clerk or a local Superior Court is a material burden, and most people dealing with the Secretary of State can do so easily through the mail.

Still, there were some identified differences between domestic partner registration and marriage that seem to me to be of material significance. First, domestic partners must cohabit before applying for registration; a married couple need not fulfill this requirement. Second, a person under the age of eighteen can marry with either parental consent or a judge's approval; no such procedure exists for someone under eighteen seeking domestic partner status. Third, you can get a "confidential marriage" which results in the certificate and date of marriage unavailable for public records searches; no cognate provision exists for domestic partners. Fourth, a domestic partner cannot fully participate in the partner's CALPERS benefits, but a spouse can (this is in part because of CALPERS' involvement with various Federal entities) so the domestic partner of a state employee will lose some retirement benefits that would be retained by a widow or widower. Finally, it is not clear whether you can become a "putative domestic partner" the way you can become a "putative spouse" under a somewhat obscure but sometimes critical legal doctrine; the Supreme Court's opinion cited a 2006 case suggesting that there was no way to become a "putative domestic partner" but did not refer to a case dated May 6, 2008 (nine days before the Marriage Cases opinion was published) that reached the opposite conclusion.

The Court here was attempting to show that the Domestic Partner Law is not "a rose by another name." It is different, perhaps not dramatically so but substantively different nevertheless, from marriage. The Court treated most of these differences as minor, and rightfully so since as a realistic matter most of those differences would not come in to play for the average domestic partner. There are only a few thousand confidential marriages active right now, for instance.

IV(A): Fundamental Rights Analysis. Here, the Court fulfills the promise it made in section III(A), and affirms that the right to marry is a fundamental right guaranteed to individuals by the California Constitution. It breaks no new ground here; California established this in 1948 with the nation's first-ever Supreme Court case striking down an anti-miscegenation law. That case, Perez v. Sharp, specifically found obnoxious a law that permitted interracial marriages that did not involve white people, and in practice was only enforced against marriages between black and white people.

Interestingly, the Court seems to vacillate for a few pages about whether the right to marry is a component of the right to privacy or the right of substantive due process. At least two people who I expect will have read this far into my digest -- my former law partners -- have wrestled with me to sort through the actually quite subtle differences between those two distinct origins of individual rights, so this will be of intellectual interest to them. Absent from the Court's analysis is a theoretical explication of the difference between those two kinds of rights, though, because eventually the Court decides that marriage is both a privacy right and a substantive due process right.

What's more, under California's Constitution and its recognition of "affirmative" or "positive" rights, the force of this right is not just a "negative" right -- the right to prevent the government from interfering with the exercise of the right. Very interestingly, the Court frames a "positive" right as the ability to compel the government to do something to affirm, recognize, or enable the exercise of the right in question. This is different than I had understood the concept of a "positive" right, a distinction drawn in the famous PruneYard v. Robins case, which held that California's right of free speech applied on private property in certain circumstances -- so I had thought that a "positive" right is a right that can be enforced against a private actor as well as against the government. I admit I'm much more comfortable with this week's distinction between a "negative" and "positive" right, but it still doesn't explain the somewhat limited but still good law of the PruneYard case.

And once more with the "framing the question" issue. The Court goes out of its way to argue that the widely-understood substance of the right at issue, and not the historical pedigree of the application of the right's exercise by the parties, is what governs the court's analysis. Thus, the Court does not see the plaintiffs as asking for the creation of a "new" right -- this case is not about a "right to marry a same-sex partner," it is about the generalized "right to marry."

Again, the Court labors somewhat to make sure that the right is framed as an individual right rather than a right that a couple possesses. The analogy was to NAACP v. Alabama, where an organization was permitted to invoke the individual rights of its members to privacy; here, the individuals seeking to marry are simultaneously exercising their individual rights to seek recognition of their relationships with the other partner. It's a thorny intellectual issue, but fortunately no one involved seems to dispute that the right to marry exists and that it at least gets treated like an individual right by the Courts.

After doing this, the Court determines that the right to marry is a fundamental right, with an extended policy analysis of the role of marriage in society. I might distill about ten pages of policy analysis to the two-word phrase "Marriage: Good!" and leave it at that. But interestingly, the Court picks up a ball left on the field in 1948 by the Perez case and says that "Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men." And women. So here, again, we have a discussion that a marriage is not a contract, or at least not just a contract.

The right to marry is phrased here in the alternative as the right to form a family. (I'll deal with the issue of procreation below.) And that family, the Court maintains, must be entitled to official recognition to be the same thing as marriage. This produces a level of social prestige that can affect the couple's social and family interactions and thus the state's failure to provide an equal level of dignity can cause tangible harm. Here, I think the Court is sidestepping a rather important issue -- you cannot legislate social prestige, either under the auspices of marriage or any other kind of legal institution. I know, or at least know of, plenty of couples whose opposite-sex marriages are perfectly legal but which are subject to wide disapproval and sneering condemnation by their own extended families.

Nevertheless, given the high importance placed on marriage in the legal and social arenas, the Court affirms the idea that marriage is a fundamental right, justifying its eventual use of the strict scrutiny test.

But then we get to the beating heart of the opinion. This heart has two chambers to it. The first is this passage:
Because our cases make clear that the right to marry is an integral component of an individual’s interest in personal autonomy protected by the privacy provision of article I, section 1, and of the liberty interest protected by the due process clause of article I, section 7, it is apparent under the California Constitution that the right to marry — like the right to establish a home and raise children — has independent substantive content, and cannot properly be understood as simply the right to enter into such a relationship if (but only if) the Legislature chooses to establish and retain it.
This is the first critical step the Court takes. The right to marry is so fundamental, so important, that it is beyond the realm of the political branches, and even beyond the realm of the people acting in their legislative capacity directly, to substantively restrict it. Here, the Court is sticking its neck out -- it is saying, "This is a deep part of our constitution. You can't change it without changing the Constitution itself." Of course, that is precisely what those who object to the holding of this case will try and do this November.

Having done that, the Court then takes the next step, the one that will be cited in a variety of other contexts later on. The Court pronounces, and this really is new law, that sexual orientation discrimination is a suspect classification, on par with race and gender, for purposes of the Equal Protections Clause of the California Constitution. "we now similarly recognize that an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights." Thus, any law that discriminates on the basis of sexual orientation will be subject to the most searching analysis the Courts can muster.

Oh, and for those of you who are jumping up and down saying "Won't somebody think of the children?", note that here the Court refers to the right to raise a family rather than the right to squeeze out crotchfruit. Again, the way you frame an issue determines the way it will be resolved. Gay people can certainly raise children together, even if they cannot conceive them without outside assistance.

The Court follows my thinking on the "procreation" argument against same-sex marriage exactly. Not that my thoughts were novel or innovative -- I have been one of tens of thousands of people writing on this subject who have noticed that opposite-sex couples who cannot conceive are still permitted to marry, and this has always been the case. Post-menopausal women, men who have been sterilized or are impotent, couples whose blood types or other physiologies prevent conception -- no one would ever or has ever questioned the legitimacy of their marriages. These people, too, possess the fundamental right to marry.

This argument hit its most clever riposte from the Indiana Supreme Court, which held in the case of Morrison v. Sadler that the real value of marriage was that it would encourage a couple who unintentionally conceived to jointly raise their children. For that reason, the Morrison Court said, marriage needs to be given substantial deference. Importantly, the Morrison Court analyzed the right to marry and the discrimination against sexual orientation under the deferential "rational basis" standard, and I must agree that under that standard, the Morrison Court identified something that a state could rationally do. My quibble with the Indiana Supremes was always that it used the wrong standard, not that it applied that standard improperly.

The California Supremes, though, take a different response to the Morrison argument. "Yes," they say, "fostering a two-parent environment for children whose parents didn't exactly intend to have them is certainly one of many good social effects of marriage. But it is not the only reason that people get married, and because the right to marry is broader and different than the right to procreate, this is an insufficient argument to deny marriage to opposite-sex couples. After all, the right to marry has never been restricted to only those couples who plan to, can, or might have children." That is, I think, a powerful response.

Finally, in a footnote, the Court also deals with the "slippery slope" argument -- the one that goes, "Well, it starts here, and next you'll have to recognize a right to incestuous marriage and then a right to polygamous marraige." Not so fast, says the majority in footnote 52. "The state continues to have a strong and adequate justification for refusing to sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment." This footnote is laced with citations from around the country.
Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.
Translated: a same-sex relationship must be given the exact same legal recognition and dignity in the eyes of the law because to do otherwise is to discriminate in a Constitutionally impermissible way against homosexuals.

IV(B): What's In A Name? Here, the Court deals with the "nomenclature" argument. Not returning to footnote 24, the Court effectively treats the DPL as providing as many rights as California can to domestic partners as are provided to married couples. The court here says, in essence, if this is a separate but equal institution, that is inherently unequal. The plaintiffs in Perez v. Sharp would not have been, and should not have been, satisfied with a right to enter an "interracial commitment relationship" -- they wanted to be "married" because that word meant that their marriage was the same as the one-race couple's down the street.

I've always thought this was not a "separate but equal" issue, I suppose because it seems like it would be so easy for someone dealing in good faith with domestic partners to treat them like they were a married couple. This isn't, I thought, the same thing as "white" and "colored" drinking fountains in Alabama during the 1940's. I understand, with ease, why having a separate drinking fountain was inherently demeaning to black people. But the Court is perhaps wiser than I in taking that thought and insisting that it does apply to the DPL, particularly in light of the extensive history of the initiative statute as it was presented to the voters -- it was more or less explicitly discriminatory in its arguments against gay people, aimed specifically at their relationships, and the law's use of a different name to describe them is, in a sense, a concession to the expressed intent of those voters to discriminate against gay people and their relationships and to insist that what they have together and feel for each other is somehow different, and less valuable or important, than what straight people do in their marriages.

I'll have to re-consider my thinking on this issue. The Court's opinion, though, is clear and short. This is not a rose by another name, and it does not smell as sweet. The fact that it has another name means that it does not have the same level of official recognition and official dignity. Therefore, it is different and therefore, it is unconstitutional.

V: Putting it all Together. From here, the pieces fall into place. The DPL and the limitation of the marriage right were aimed at preventing gay people from marrying each other. This is discrimination against homosexuals. This is a limitation of a fundamental right, the right to marry. Along the way, though, the Court notes that this is not sex (gender) discrimination. It is, however, sexual orientation discrimination: "By limiting marriage to opposite sex couples, the marriage statutes, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation." The court dismisses as "sophistry" the argument that a gay man can still marry a woman, and a straight man cannot marry a man. A gay man is very unlikely to want to marry a woman, and a straight man is very unlikely to want to marry a man.

Here, the Court applies its test for determination of when a suspect class exists to the issue of discriminating against homosexuals. The test, for those of you who care to look it up, is described in the amusingly named case of Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 18-19: the defining characteristic must be 1) based on an immutable characteristic, 2) bear no relation to the person's ability to perform or contribute to society, and 3) be associated with a stigma of inferiority or second class citizenship. Applying this to homosexuality, the Court found no problem whatsoever with the second and third prongs of the test, but the first gave it a moment's pause because the scientific scholarship is not at all clear as to why people are gay and whether they can change being gay. But the Court must have been convinced that homosexuality is immutable enough.

For me, I was convinced that homosexuality is not a "choice" by a gay friend asking me, "When did you decide to be straight?" I've never decided to be straight, I just always have been. That was a very convincing argument. I am less convinced by the argument, "If someone sat down to decide to be straight or gay, looking at how society as a whole treats gay people, what person would decide to be gay?" My answer to that would be, "The same sort of person who decides to get a pointy spike driven through the septum of their nose as 'body art.'" Some people seem to want to be different and to draw social approbation to themselves. Not a lot of gay people I've met, but there are people like that, and it's possible that there are gay people who do gay things to rebel against their parents, against society, and so on. And I'm not convinced at all that "Christian reprogramming" (aka "brainwashing") can "cure" homosexuality. At best, it can create powerful negative association with homosexual sex acts, and maybe even make a homosexual never again have sex with someone of the same sex as them. But it won't change the desire.

And then there is the question of religion. Religion is obviously not immutable -- people convert all the time. People change their faiths, they come to believe new things (or lose their faiths) or they even switch denominations for a wide variety of reasons. Yet religions is treated as a "suspect class" and rightly so -- for people of very strong faith, it is not something they can change like a necktie. I am a person of no faith, and were I to be asked, in earnest, to avow a religious faith I could not truthfully do so. Indeed, at a fairly young age, I looked at the religion of my family (Roman Catholicism) and realized, "I don't believe any of this crap." From there, it took me several years of looking around at other kinds of Christianity and then other kinds of religions, before I realized, "I don't believe any of that crap, either." And then it took me even longer before I would admit to myself, "I just plain don't believe in any kind of God at all." Along the way, I might have identified myself as Catholic and I went to Masses from time to time to please other people around me. So at what point did my religion "change" from Catholic to atheist? (I would argue that I simply don't have a religion at all, but "I'm an atheist" is an answer to the question "What religion are you?") Nevertheless, the law treats religion as a suspect classification when considering discrimination and the equal protections clause -- even though religion is, actually something that can change. The law realizes, though, that the change may not be the result of a conscious effort on the part of the believer and even if it is, it is the result of immense effort. So this seems right to me.

Interestingly, the State argued that there should be a fourth prong to the Sail'er Inn test, mainly that the group in question was unable to use the political process to address its needs. The Court rejected that proposed new prong to the test, because there was nothing stopping any other suspect class from participating in the political process, either.

So, what harm comes to the plaintiffs from being labeled "domestic partners" instead of "spouses"? First, the novelty of the term "domestic partners" "realistically must be viewed as constituting significantly unequal treatment to same-sex couples." In other words, prestige. Second, because gay people have been the victims of discrimination historically, and the phrase "domestic partners" is aimed at identifying gay people, the phrase risks encouraging social discrimination and disparagement. Third, the novelty of the "domestic partner" nomenclature is confusing in a way that "marriage" is not, meaning that people interacting with domestic partners lack the social training to deal with them the way they would know how to deal with married people (for instance, most people are reluctant to ask a married person out on a date).

That, then, is what's in a name. And the state identified no compelling interest, and certainly could not explain how its laws were narrowly-tailored to realize that interest, to justify them. Preserving the traditional definition of marriage is not inherently a compelling state interest. Encouraging procreation is not a compelling state interest. Encouraging child-raising in a family environment is, even if it is a compelling state interest, not advanced in a narrowly-tailored way by a law preventing gay people from marrying each other because either with or without that law, opposite-sex couples would still have children, or not, and get married, or not.

Finally, the Court addressed the "democratic" argument -- that a change in an integral social institution like this cannot come through the judicial process and should only come from the democratic process of the Legislature, Governor, and the people acting as a whole. In response, the Court agrees that it cannot "redefine" marriage but rather that it is executing its responsibility in a system of government intended to have checks and balances, and that its role in so doing is to interpret and apply the California Constitution to laws passed by the legislature and people of California. This argument is the basis for Justice Baxter's dissent.

The Court says that it did not "redefine marriage" when it struck down the anti-miscegenation statute in Perez, and it is no more doing so today. The judicial abolition of the doctrine of coverture, in which the wife's legal identity was merged into that of her husband, and converting her into a form of chattel, did not "redefine marriage." The courts' restriction and eventual dispensation of the doctrine of recrimination, or finding fault within a divorce action, did not "redefine" marriage and led to the Legislature adopting a no-fault divorce statute. None of this "redefined" what marriage was, because the right to marry was there all along, unchanged, and exercised by large numbers of people who wished, unforced, to exercise it. And the limit law is subject to Constitutional analysis whether or not it was the product of the Legislature or the product of a plebiscite or initiative.

VI: The Remedy. The Court struck the phrase "between a man and a woman" from Family Code § 300(a) and struck Family Code § 308.5 ("Only marriage between a man and a woman is valid or recognized in California.") in its entirely. The Court ordered that writs of mandate issue to the appropriate state officials (the Governor, Secretary of State, Attorney General, and the various county clerks) to issue marriage license applications to same-sex couples, and to issue marriage licenses and marriage certificates to them, if they otherwise qualify for such treatment (they still have to pay the fee, demonstrate consent, not be married to anyone else, prove that a solemnization ceremony has taken place, and demonstrate a lack of consanguinity). However, those writs have been stayed for thirty days, because the Court anticipates that a request for a stay will be made in light of the pending Constitutional amendment initiative.

Justice Baxter's dissent calls the whole thing "legal jujitsu," and his opinion suggests that domestic partnership, by any name, must necessarily be a lesser form of institution than marriage because Prop. 22 says that marriage cannot be given to a same-sex couple. To the extent that the opinion rests on a substantive due process right, he scores his best point by noting that a substantive due process right must, by definition, be deeply-rooted in the history and culture of our nation, and same-sex marriages are most certainly not that. Of course, he has "framed the issue" differently than the majority; he sees this as a question of whether people of the same sex enjoy the right to marry one another, not a question of whether the state can limit the right to marry to only people of the opposite sex. Finally, and the area where Baxter devotes the most effort, he faults the majority for elevating a statutory protection granted to homosexuals to the level of a Constitutional one; doing so, he says, cheapens the Constitution and in this case subverts the explicit expression of the democratic majority that such a thing not happen. In essence, then, Justice Baxter says that the majority got it wrong at the level of framing the issue, at the level of finding an equal protection violation, and at the level of finding sexual orientation to be a suspect class. Justice Chin joined this dissent.

Justice Corrigan's dissent begins by stating her policy preference that same-sex unions be called marriages; however, she would only override the voters, who she acknowledges feel differently than her, if she could find a compelling reason to do so in the Constitution. She disclaims the analogy to the race cases, because she sees that the democratic process has worked to benefit homosexuals where before it was used to repress racial minorities. Unlike the majority, she would not do so because she does not see any way to get around the "traditional definition" of marriage as the union of a man and a woman, and she sees the DPL as providing all the same rights as marriage, or at least that it is capable of doing so. Therefore, she does not think that the plaintiffs have standing to challenge the statutory scheme since they can avail themselves of the DPL, and the nomenclature is a matter of no significance. But, she believes that this opinion does redefine marriage into something it was not before, and that this is anti-democratic in a way that exceeds the Court's legitimate powers to be a check on the democratic process. She thinks the debate is not yet over and that the same-sex couples may yet win -- and the court should allow that process to happen and play out before intervening.

I fault Justice Corrigan for saying that on the one hand, the plaintiffs have the same substantive legal rights as married people and therefore lack the ability to challenge the marriage statutes -- and on the other hand, complaining that recognizing the plaintiffs as "married" somehow substantively changes marriage. If the DPL is the same substantive thing as marriage for same-sex couples, then marriage is not substantively changed by giving it to same-sex couples. It's a distinction without a difference, an arbitrary limitation of nomenclature that does not survive even a rational basis analysis.

Finally, I might add that the list of counsel is ten pages long and it reads like an All-Star's roster of constitutional lawyers and lawyers involved in political activism. The best in the business, or at least the most famous in the business, were on all sides of this one.

There. Took all day to write and a very long time to read and analyze. I hope it's clear enough for a layman to read it and understand it (even if you don't agree with it) and that you can see that a considerable amount of thought and research went into the opinion.