a long morning.

Another court hearing yesterday! Good times, good times.

After June's Crabby Judge Adventure, I was expecting Crabby Judge 2.0, and my own hope was to direct her crabbiness where it belongs, at Angry Biodad (ABD), who keeps pulling fun stunts that dodge her orders. Crabbiness levels were surprisingly low, though, and I think were helped by a couple of attorney appearances: one new associate, who came charging hard at the judge out of the gate, and immediately wished he hadn't, turning red with embarrassment as his aggressive claims fell apart like wet tissue paper. This was followed by a guy who:

• looks like he's in his mid-70s,
• talks like an immigrant from some long-ago part of the Northeast,
• seems like maybe he focuses on jury trials, because he was standing up and gesticulating and emphasizing a lot, and
• wore a bright emerald green blazer, and the biggest cuff links I have ever seen: disks over an inch across.

Hard not for him to be the highlight of everyone's day.

From the sanity-preserving low expectations of this just being a continuous holding action until J turns 18, the outcome of yesterday was A+: the previous interim order continues (J chooses where he lives and who he talks to) and ABD's primary shenanigans for dodging previous orders are kneecapped. He can now see the harbingers of doom on the horizon, which he's worked so hard to avoid:

• The many medical and psychological professionals who have gotten to know J, and, to their misfortune, ABD, will be interviewed and their opinions collated for the judge.
• He has to keep payments current with the court-appointed medical arbitrator who isn't allowed to work unless both parents are paid up (thus letting him continue to veto medical care simply by declining to write a check).

While it's not always a comfort, I am always grateful that he's not intelligent, focused, or wealthy; he's sort of the Ford Pinto of narcissists. His contribution to the world has been purely genetic, and whatever his own original potential, he now lives in that far realm of fantasy where he reads things on the Internet and uses that lofty education to assess the medical expertise of people who teach in multiple departments at Stanford Medical School while running world-class clinics.

The closest he comes to personal growth is learning from an occasional support group that in repairing his relationship with J, spending months telling J he should feel bad for how much he's been hurting ABD's feelings may have been counter-productive. I'm quite sure he doesn't understand why that should be the case. He's a simulacrum, the most shallow imitation of an adult human; a little like Pinocchio, if Pinocchio told the Blue Fairy to fuck off because he was already a real boy, thank you very much, and God, if it isn't just like a fucking fairy to try and tell you who you are.

(You may think I'm exaggerating, but one of the final straws for J was ABD going on a bender of anti-feminist ranting; a standard feature of Men's Rights Activism, which I promise is far worse than you're imagining, and probably gave him the referral to his scumbag lawyer who specializes in representing domestic abusers.)

Onward to the next seven weeks, then. It goes how it goes.

so that happened.

Despite my lawyerly heritage, I didn't grow up around actual litigation or other court proceedings: more stuff like tax/zoning/real estate law. As a result, like so many Americans, my impression was that of the Law & Order TV series, where you see the lawyers doing motions and depositions and whatever, but of course they don't show the months in between when you're just waiting for the next court date.

There are months in between court dates. But ours finally arrived!

I say "ours" even though I'm not named anywhere, and by the strictest letter of the law, I don't exactly exist. In fact, Angry Biodad (ABD) has always reflexively thought of me as some sort of backup babysitter in J's life, which has often been useful, especially in the times when J was struggling with the tension between his biological parents. I'm an alternate category of parent, called a "Chris": a poorly defined but highly reliable source of unconditional love.

The hearing was a little nerve-wracking, since the judge got progressively (and mostly justifiably) crabbier as it unfolded. I see where they're coming from: they don't know us, they don't know J, they just have the ruling from two years ago, and a new pile of papers with a bunch of contradictory claims in it. This whole motion was J's idea, so the filing had a ton of his statements in it, and he needed to vet it before filing (and in fact had some corrections); buuut, the previous ruling was very clear that no one should show J any court paperwork! (Because ABD had done exactly that, last time.) And Anna had taken faithful dictation for a couple of angry emails J wrote to ABD, because J's had a headache for nine months limiting his screen time, and that also bugged the judge. There wasn't really a better way to do this, though.

The goals were:

1. Let J stay with whoever he wants without hassle, which means ABD stops showing up at school or the house to pick J up as though everything's fine.
2. Get a court-appointed person to talk to J (and his doctors and therapists and whoever) and get his voice into the record.

The judge's summary went something like this:

1. For fuck's sake, none of you people have abided by the previous court orders. You suck.
2. The child is 6'1" and is clearly not going to comply with the existing custody order, and there's no point in my ordering something a 6'1" child isn't going to comply with, so: 
• the original custody order stands, but
• my interim order is that no one will try to force the child to comply with the original custody order.
3. Contact (phone calls, whatever) with the non-resident parent must be initiated by the child.
4. To unravel the parents' clusterfuck of conflicting hearsay and sketchy document serving habits, Family Court Services will interview the child and everybody with "Dr." in front of their name, so I can be sure of what this kid actually wants and if there are good reasons for it.
5. Family therapy with ABD and J continues, with the mom if the therapist wants.
6. None of you will talk to the kid about court stuff.
7. See you in August.
8. Go away.

If you're going to be rebuked by a judge, the best kind of rebuke is certainly the kind where you get the outcome you wanted along with it. Success!

more details on my Prop 8 questions

Shannon Minter, the actual lawyer they got to answer people's Prop 8 trial questions, responded in more detail to the stuff I asked, about the previous case law around gay marriage that all went unmentioned in Judge Walker's decision. His response to my question directly:

It is true there are a bunch of older state cases upholding marriage bans-as well as a handful of more recent ones (sadly, the New York Court of Appeals, the Maryland Court of Appeals, and the Washington Supreme Court). But Judge Walker is not bound by any state court decisions. There are very few federal cases considering the validity of marriage bans-and virtually none decided by the federal courts of appeal. In a nutshell, Judge Walker had to decide the questions presented to him without relying on an binding precedent that is directly on point, because there isn't any. He did the right thing by presenting his reasoning about the legal issues presented. It would not have served any purpose for him to spell out why he disagreed with the reasoning in other cases that were not binding on him in the first place.

So, there it is. Here's his response to someone else on a similar topic:

I think Baker v Nelson is a real red herring being waved around by the other side in a desperate attempt to recover some lost media ground after Judge Walker's amazing decision! In 1971, the MN Supreme Court upheld MN's marriage ban. The gay couple who brought the case asked SCOTUS to review the decision. At that time, the Supreme Court HAD to take any case that presented a federal constitutional question. In 1972, the Supreme Court denied the case on the ground that it did not present a substantial federal question. But a heck of a lot has changed since then! in 1972, the supreme court had not yet held that laws that discriminate against women were subject to a heightened level of review. The court had not struck down Colorado's anti-gay ballot initiative in Romer, or held that individuals have a protected right to be in a same-sex relationship in Lawrence. So much has changed that any precedential value that Baker v. Nelson has, is exceedingly small. And in any case, the question presented by the Prop 8 case is a new one not considered in Baker: can the people of a state first permit a group to enjoy a fundamental right, and then take that right away based on a bare desire to send the message that the group is inferior?

All righty, then.

(UPDATE: More stuff relevant to my questions, in this response to an anti-equality op-ed by Edwin Meese.)

awkward

In the wake of the Prop 8 decision I went and re-read summaries of Griswold v. Connecticut (the first to dig a right to privacy out of the Constitution), Roe v. Wade (right of privacy gives the right to have an abortion), and Lawrence v. Texas (right to privacy includes sex).

Now, I do believe we should dig a right to privacy out of somewhere in the Constitution, and these are all really important decisions and I'm glad we have them. Everyone deserves access to contraception, women deserve full rights to make decisions about their bodies (not that Roe gives them that exactly, but whatever), and consenting adults should get to have whatever sex we want. The people who hate those decisions are frankly terrifying, with their violent anti-government and anti-liberal rhetoric, and their actions showing that their truly held principle is that the government should enforce the rules of their sub-sect of Christianity. So I'm okay with being stuck with the rulings.

That said, the legal reasoning is a little...weird. I guess you can blame it on the Ninth Amendment, which says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

To me, this seems to say pretty clearly that just because there are rights enumerated in the Constitution, that doesn't mean that's all the rights we have. I think the writings of the Founders back this up, but for some reason, it seems to get a narrower reading. But for some reason, courts have thrown up their hands and said "We don't know what this means, so we better not mess with it much." (Any lawyers reading, I'd love some help with understanding it.)

The softened shibboleth for "abortion is wrong" on the Right is often "I believe Roe was wrongly decided." There's no denying it's a sort of a tangle, which leaves me in the awkward position of saying "You might be right, except your preferred outcome is INSANE." Unfortunately, that level of honesty is perilous in a discussion with people who only see absolutes.

Prop 8: on the other side

I hopped over to TheNextRight.com and RedState.com (not giving them any links, sorry) to see if conservatives were freaking out about the Prop 8 decision. The Next Right didn't mention it at all--they are, or were when I was reading more regularly, trying to create a sane American conservatism not based on retrograde culture war and massive tax breaks for billionaires. Well, not based on culture war, anyway.

RedState had a few pieces on the decision, of which I read the two longer ones (hereand here): wrong, sometimes in subtle ways, but to their credit, they both managed to write two pages without mentioning that the judge was gay (something the defense declined to contest at any point in the proceedings). And the comments were relatively moderate, free of suggestions for armed rebellion, and with some clear peer pressure to keep the nuttiness down. This surprised me, and not only because American conservatism is a cesspool of fear-driven reactionary polemic divorced from reality. RedState's founder, Erick Erickson, called retiring Supreme Court Justice David Souter a "goat f*&king child molester" on Twitter, and that's a representative sample of his discourse.

The columns themselves have a lot of tricky fallacies (which usually amount to "Of course gay marriage is wrong, it's GAY MARRIAGE"), but the comments are more striking, and match conservative views of law and government over the past many years.

The recurring theme is a profound misunderstanding, which seems nearly deliberate, of what's in the Constitution, why it's there, what "rights" are, how the government works. See, for example, this classic Onion article.

• "Free speech" suits the needs of the moment. Sarah Palin referred to media criticism of her as a violation of her free speech rights, and opponents of marriage equality seem to think their "First Amendment rights" including preventing gays from getting married. The honest idea of the First Amendment as supporting, say, free speech, or religion--you know, for everyone--seems less important.
• Selective reading: one commenter said that California already treats everyone equally, because everyone has the right to marry a person of the opposite sex. The decision specifically notes that that for gays and lesbians, that's the same as not having a right to marry, and the fundamental right in question is to marry the person of your choice.
• One comment, which I now can't find, said something like "Yes, but where's the constitutional harm?". As though the decision didn't address that in the first 3 pages and spend the remaining 135 explaining it.
• The commenters seem very upset that one man nullified the will of 7 million California voters. One more leftist commenter responded, "Yes, those 7 million voters enacted an unconstitutional statute." I imagine if the voters of California voted some right-to-abortion law that a judge overturned, they'd be fine with it.

They seem not to understand that this was the chance to litigate this. The state declined to defend Prop 8: the proponents themselves stepped in to provide the defense, and they did an awful job, because they were holding a logically indefensible position. Most of their expert witnesses were withdrawn before trial, for no stated reason, and one of the remaining two was determined to be partly unqualified as an expert, and the other was deemed wholly unreliable because he's not an expert in anything. This was the time to throw your cards down: you think gays marrying will somehow damage heterosexual marriages? Prove it. Think straight couples are better parents than gay couples? Prove it. There was no shortage of money or fanaticism on the proponents' side, but they had a full trial in open court to prove every lie and stereotype they'd been spreading about homosexuals, and all that happened is they disproved their own points. Here's the scale of the failure:

At oral argument on proponents’ motion for summary judgment, the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest. Counsel replied that the inquiry was “not the legally relevant question,” but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know. I don’t know.”

That's a bad answer to be coming from a lawyer. Especially if it's your lawyer.

There may be a twist in the epilogue: this article wonders how much farther the case can actually get: if California doesn't appeal the decision, Prop 8 proponents may not have standing to drive the appeal, since they weren't originally the defendants and only stepped in to cover for the state. And really, who's going to be able to show they've been harmed by another group of strangers being able to marry? Comedy!

Prop 8 gets mightily overturned

Bye-bye Prop 8! The homophobic cohort schemed and slimed their way into amending California's constitution--which isn't at all difficult, by the way, be careful where you sneeze or you'll amend the state constitution by accident. The lawsuits started flying immediately, but before the "OMG TEH GAY" contingent won a temporary victory, 18,000 gay couples had received marriage licenses. Said contingent immediately violated their promise not to try and have those marriages invalidated. Good work, guys! It must be nice to have a God of love and forgiveness who hates all the same people you do.

Today, however, Judge Vaughn Walker of the Northern California District Court--

I'm sorry, I have to interject here with a Wikipedia quote.

Walker's original nomination to the bench by Ronald Reagan in 1987 stalled in the Senate Judiciary Committee because of controversy over his representation of the United States Olympic Committee in a lawsuit that prohibited the use of the title "Gay Olympics". Two dozen House Democrats, led by Rep. Nancy Pelosi of San Francisco, opposed his nomination because of his alleged "insensitivity" to gays and the poor. Years later, the San Francisco Chronicle noted the irony of this opposition due to Walker's sexual orientation.

Right, so the judge is an openly gay Reagan appointee. Moving on.

The case is Perry v. Schwarzenegger, and here's why it's awesome:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Here's the PDF of the full decision. Here's a few more juicy quotes from Talking Points Memo. And here's a CNN bit describing the next steps through the appeals process.

I can see where the Supreme Court wouldn't want to touch this with a ten-foot pole: this would be the defining decision on gay rights. I imagine the Ninth Circuit will let the decision stand, and then the Supreme Court decides whether to hear it or not. If they don't, it becomes binding precedent for the Ninth Circuit, and just strongly advisory for the other twelve circuits (most of which are far more politically conservative than the Ninth). They might not hear it: I can see them not wanting to touch this with a ten-foot pole, and they sometimes like to have conflicting circuit court decisions before they hear an issue.

Who knows? In the meantime, it's a strongly-worded, heartwarming decision.

(UPDATE: FYI, the "God hates all the same people you do" isn't original to me. It's an anecdote from Anne Lamott, who seems to me more quotable than readable..)