A Tribute to One of My (Fallen) Heroes

I was about to leave the annual gala party for the National Center for Lesbian Rights last night when I ran into two old friends, both of whom I know from my years as a public defender in Oakland, California. Both women were in Women Defenders with me many years ago, and as we stopped a moment to catch up, one of them shared the very sad news with us that the founder of Women Defenders, Susan Jordan, died Friday in a small plane crash. I have been thinking a lot about Susan since hearing this very sad news, and wanted to take a moment to share some of those thoughts. Susan was a remarkable woman in many ways. She lived her life loudly, with great intelligence, passion and humor. She was an amazing criminal defense lawyer, who had a great deal to do with the development of the "battered women's syndrome" defense -- which she used successfully for the first time in her defense of Inez Garcia, a woman who killed the man who raped her and was originally convicted of murder, but who was later acquitted during a retrial in which Susan represented her. From her experience representing Inez Garcia and other women accused of violent crimes, Susan Jordan came to believe that a woman's perspective could be an invaluable asset to women criminal defense attorneys, instead of being the handicap it previously had been considered. Up until Susan founded Women Defenders -- along with a group of younger women criminal defense attorneys from the San Francisco Bay Area of whom I'm proud to be one -- it had been commonly accepted that the way for women to succeed in the field of criminal defense was to be more macho than the most macho male criminal defense attorneys -- and believe me that criminal defense attorneys truly know from macho! Susan brought a very different -- and very well-articulated -- perspective to the discussion, arguing that the natural empathy of women was an asset that allowed women to do a better job of humanizing our clients to juries -- especially when the clients were accused of acts of violence. In the early days of Women Defenders, before it was a true organization, a hand-selected group of us sat around living rooms in San Francisco and the East Bay and shared our experiences as women and as criminal defense lawyers, and talked honestly -- most of us for the first time -- about the strengths and challenges we experienced doing this very demanding work as women. The conversations we had ultimately led to the formal founding of Women Defenders almost 20 years ago, and started a true community of women criminal defense attorneys committed to providing support and mentorship for each other -- led, of course, by Susan B. Jordan. Susan brought more to the table than her excellence as a lawyer. She was one of the first women I knew who talked openly about her experiences as an adoptive mother -- and actually helped create a children's book about adoption, with her daughter as the protagonist, that was one of the first such books I ever saw. She shared her challenges as a mother with us with the same thoughtfulness and humor with which she shared her professional challenges; she was incredibly proud of her family, and always had a story to share about them. And in and around everything else she did, Susan always shared with us her passion for flying. She was the first person to ever tell me about the Powder Puff Derby, and the proud history of women pilots in America. In fact, if I remember correctly, she dreamed of flying in her own cross-country race -- although I don't know if she ever actually did. I do know that she regularly flew from her home in Berkeley to her home in Ukiah, and to distant court appearances; and other than her work and her family, her passion for flying is what I remember most about her. So it is appropriate, I suppose, that she went down in a small plane. I haven't seen Susan in many years -- quite possibly since 2000, when the founders of Women Defenders were all honored at a gathering. But she has remained with me as one of my mentors, and a woman I truly admired in so many ways for so many years. Even though she is gone, she leaves behind her a proud legacy that lives on in Women Defenders and in all of us who had the privilege of knowing her. I hope her spirit is soaring high above us, in the clouds she so loved to fly through.

When the Court Promised Us Equality, They Had Their Fingers Crossed

I have now finished reading the entire Prop 8 decision (well, I admit that I skimmed through the majority's very lengthy discussion of the history of the amendment/revision issue), and I have just a few comments to add to those I wrote here yesterday. First, the decision is well-thought-out and articulate, and gives the strong impression that the Chief Justice and his co-signors felt they had no choice but to rule the way they did. If the Chief Justice had not authored the decision in the Marriage Cases a year ago, I would tend to believe that he was currently acting with integrity. My problem is that I cannot find any way to reconcile what the majority of the court said a year ago with what they are saying now. Let me be specific: When our Supreme Court issued its marriage decision a year ago, same-sex couples already had all of the rights and benefits of domestic partnership that we have today. The court did not find that our Constitution required that same-sex couples be offered the same package of rights and responsibilities as different-sex couples; we already had those. Instead, they found that our state Constitution -- specifically our constitutional rights to due process, equal protection, and privacy -- required that same-sex couples not be put in a separate category from different-sex couples, because the "separate but equal" approach necessarily undermined the dignity and respect accorded same-sex couples and our children. The Supreme Court, a year ago, insisted that our Constitution would allow them to settle for nothing less than full, true equality on our behalf. Now, just a year later, they have determined that as long as the state is providing us with all of the rights and responsibilities accorded married couples (which, again, was true before the court ruled last year) that meets the constitutional imperative provided by the due process and equal protection clauses of our Constitution. Now, "marriage" is just a name, and separate is equal enough to pass constitutional muster. So what changed?? They would answer: "our Constitution changed." They would have us accept that the passage of Proposition 8 means that our current Constitution no longer allows them to provide us with full equality through marriage, but that their commitment to equality nevertheless remains unchanged. And, in fact, in Justice Werdeger's concurrence, she articulates this position quite eloquently: "Equal protection's continuing vitality in the present context is shown by this court's unanimous reaffirmation of its conclusions in the Marriage Cases ... that laws discriminating on the basis of sexual orientation are subject to strict scrutiny, and that -- excepting the name -- same-sex couples are entitled to enjoy all of the rights of marriage. Accordingly, all three branches of state government continue to have the duty, within their respective spheres of operation, today as before the passage of Proposition 8, to eliminate the remaining important differences between marriage and domestic partnership, both in substance and perception. The measure puts one solution beyond reach by prohibiting the state from naming future same-sex unions 'marriages,' but it does not otherwise affect the state's obligation to enforce the equal protection clause by protecting the 'fundamental right ... of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other official recognized family relationships.' [Quoting from the Marriage Cases.] For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains." Her concurrence strongly suggests that she thinks our current domestic partnership law is unconstitutional in that it does not allow different-sex couples the opportunity to register as an alternative to marriage; and in that it requires same-sex couples to share a common residence in order to obtain the benefits of registration, whereas different-sex couples can obtain those same benefits through marriage without residing together. It is politically interesting to think about demanding that domestic partnership registration be made available to all -- a position with much merit that got abandoned in Sacramento so as not to undermine traditional marriage. If straight couples were allowed to register as an alternative to marriage, that would give us a lot of new allies in demanding federal recognition of domestic partnership. It also could help neutralize the stigmatization that automatically accompanies a "separate but equal" approach. It doesn't fix the fundamental problem created by Proposition 8 and the court's ruling, but it is an interesting and potentially scenic detour on the road to equality. Still, at the end of the day, if the Supreme Court really believed what they said last year, i.e. that marriage is the only way to provide same-sex families with the full respect and dignity that we are due, then I cannot follow how denying us the right to marry does not substantially undermine our state's equal protection clause. And if Proposition 8 in fact did serious harm to the equal protection clause, then it seems clear that it would be a revision and not an amendment and therefore would require more than a simple majority vote. Which seems to be the perspective of Justice Moreno, who authored a ringing dissent, which I recommend to any of you looking for a good read. The reality is that our Supreme Court is made of up seven people with their own ambitions and concerns (including job protection) that influence them in ways that we may never fully know or understand. But going back and reading the Marriage Cases, and comparing them to the opinion issued by the court yesterday, I cannot help but conclude that when the court promised us full equality last year they had their fingers crossed. And that, unfortunately, is a conclusion that even our children can understand.

The CA Supreme Court Ruling on Prop 8

Here is my best effort -- in "real time" -- to digest the Supreme Court's very long opinion on Prop 8. I reserve the right to update and revise this after a more luxurious reading of the decision. In its decision today, the California Supreme Court did several things: (1) They reaffirmed that discrimination against lesbians and gay men will be subject to the highest level of scrutiny from the courts ("strict scrutiny" in legal parlance); (2) They ruled that "although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated as 'marriage,' in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, 'the core set of basic substantive legal rights and attributes traditionally associated with marriage,' including, 'most fundamentally, the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.' [Quoting from their marriage decision last year!] Like opposite sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right." In other words, our rights as established by our state domestic partnership laws remain intact, and are constitutionally protected -- but the court is now splitting hairs and finding that the designation of "marriage" is not itself constitutionally important, and therefore can be taken away from us without offending our state Constitution. (For an excellent counter to this argument, just read the court's opinion from last year -- or my blog on the issue from March 26 where I reminded the court of what they said.) (3) The court concluded that limiting access to "the designation of marriage" -- as opposed to the rights and responsibilities accorded committed couples through both marriage and domestic partnership -- has only a "limited effect on the fundamental rights of privacy and due process and the guarantee of equal protection of the laws under the state Constitution as interpreted by the majority opinion in the Marriage Cases." Therefore, this "narrowly drawn" exception to the fundamental constitutional rights of due process and equal protection is fairly categorized as an "amendment to" and not a "revision of" the Constitution. (Remember, this is the court speaking, not me -- if you are now yelling at the computer, don't blame me -- I'm just trying to explain what they did, not justify it!) (4) The court unanimously held that marriages by same-sex couples entered into before November 5, 2008 continue to be valid and recognized in California. "[S]ame-sex couples who married after the decision in the Marriage Cases ... was rendered, and before Proposition 8 was adopted, acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property, and inheritances. These couples' reliance upon this court's final decision in the Marriage Cases was entirely legitimate. A retroactive application of the initiative would disrupt thousands of actions taken in reliance on the Marriage Cases by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state's highest court. ... Accordingly, ... we conclude that Proposition 8 cannot be interpreted to apply retroactively so as to invalidate the marriages of same-sex couples that occurred prior to the adoption of Proposition 8. Those marriages remain valid in all respects." And now, the $64,000 question: what about marriages entered into by same-sex couples outside of California??? All the court had to say on this issue was: "We have no occasion in this case to determine whether same-sex couples who were lawfully married in another jurisdiction prior to the adoption of Proposition 8, but whose marriages were not formally recognized in California prior to that date, are entitled to have their marriages recognized in California at this time." Honestly, I do not know what the phrase "not formally recognized in California prior to that date" means. If a Massachusetts same-sex couple, married in Massachusetts prior to adoption of Proposition 8, came to California for vacation last summer and went around telling everyone here they were married, was their marriage "formally recognized in California"?? Certainly their Massachusetts marriage was recognized in California last summer. But what does the word "formally" mean in this context??? Does this mean that a same-sex couple married in Massachusetts on November 4 has a marriage recognized by the state of California, but a same-sex couple married in Massachusetts on November 6 does not?? Even if all other relevant considerations are identical?? Isn't there an equal protection problem here (equal protection embodying the principle that it is unconstitutional to treat similarly situated people differently without good cause)? I predicted that the court would leave us with an unmanageable mess if they upheld Proposition 8, and they seem to have done just that. More later, as I figure some of this out....

Taking A Moment to Boast About My Brother

Being Jewish, I have to take a moment to boast (or kvell, if I really want to be Jewish about it) about my brother Elijah. As those of you who regularly follow this blog may already know, Elijah is a musician and music historian who has published a number of books over the years about various musicians (Dave van Ronk, Robert Johnson) and musical genres. He has a new book coming out next week, with the provocative title How the Beatles Destroyed Rock'N'Roll. The book just got a prominent mention in ... NEWSWEEK! Now that's "making it"!! Now you see what I'm up against. How to compete in a family like this?? If any of you can help me get on Oprah, please give me a call....

Important Adoption Victory

This morning, the Florida Court of Appeals ruled that the state of Florida must give full faith and credit to a 2nd parent adoption from Washington. To be more specific (and less legalistic): a lesbian couple from Washington had two children together. Each gave birth to one, and each adopted the one to whom she had not given birth. They later moved to Florida, and after break-up one of them (let's call her Mom1) tried to argue that her ex-partner (Mom2) did not have a legal right to be recognized as a parent of the child that Mom1 had given birth to -- even though Mom2 had legally adopted the child -- because, according to Mom1 (and Liberty Counsel, who appear in every case like this), recognition of the 2nd parent adoptions from Washington violated Florida public policy. I am sorry to report that this case is one of a flurry of challenges around the country to same-sex adoptions and parentage actions. In our very mobile society, job changes and family matters frequently cause same-sex couples and their children to move to states that do not provide the same types of protections that were provided in the states where these families first formed. When ugly break-ups occur, we are seeing parents try to take advantage of the public policies of their new home states to try to gain advantage over ex's with whom they no longer want to co-parent. Because Florida has been particularly hostile to same-sex families with children -- being one of the very few states that will not allow gay people to adopt -- we were watching this case very closely. To win in Florida bodes very well for the outcomes in the other pending cases. For those of you interested in the details of the ruling, the Florida Court of Appeals held that Florida public policy was irrelevant; and that under the Full Faith and Credit Clause of the United States Constitution, Florida had no choice but to recognize the Washington judgment of adoption. As stated by the court, each mother “must be given the same rights as any other adoptive parent in Florida.” The court went on to note that “there are no public policy exceptions to the full faith and credit which is due to judgments entered in another state,” and concluded that “regardless of whether the trial court believed that the Washington adoption violated a clearly established public policy in Florida, it was improper for the trial court to refuse to give the Washington judgment full faith and credit.” A concurring opinion added that the petitioner's “same-sex relationship with [the other parent] is irrelevant for the purpose of enforcing her rights and obligations as an adoptive parent.” Kudos to the National Center for Lesbian Rights, which fought this case with their usual combination of wisdom and passion. Hopefully this ruling, which does not mince words, will help stem the national tide of anti-adoption and anti-family litigation; and children will continue to enjoy the protection of our nation's courts from parents who get over-zealous in their efforts to marginalize their ex's.

Thoughts on Swine Flu

I spent April 23-27 in Mexico. I came back and immediately came down with a cold. If you are in need of some time by yourself, tell everyone you come in contact with that you just came back from Mexico and now you aren't feeling well. Even better, try telling them this between coughs and sniffles. They will give you all the personal space you need.... But seriously, I was in Puerto Vallarta, on the coast, in the state of Jalisco. For those of you unfamiliar with Mexican geography, Puerto Vallarta is approximately 550 miles from Mexico City, where the swine flu outbreak appears to have started. As of today, there still is not one reported case of swine flu in the entire state of Jalisco. Compare that to California, where there are now 190 confirmed or "probable" cases. I have heard several commentators rambling on about the "mystery" of why the swine flu mortality rate in Mexico has been so much higher than in the U.S.. Last week, I finally heard the answer I had been assuming: i.e. that most of the swine flu deaths have occurred in a particular barrio of Mexico City where there is only running water 9 hours out of the day. It does not take a rocket scientist to figure out that a place with very poor sanitation -- making good hygiene almost impossible -- would experience any outbreak of disease more seriously than we do here in the U.S. or in Europe, where we can wash our hands every 5 minutes if we want to, and run our dishes and glasses through dishwashers with a sterilization cycle, and so on. I have no issue with our government taking this current flu epidemic seriously. I certainly don't think it's a bad idea to have a "test drive" for how we deal with a world health crisis. But I cannot help but be offended at the surprise that we in the 1st world express when we learn of the health challenges facing very poor people in countries where things like running water and electricity are still a privilege that many can't afford. If we want to control flu epidemics like this in the future, maybe we should be looking at how to improve sanitation in the poorest neighborhoods of our poorest neighbors. This seems like a much more productive approach to addressing global health challenges than closing schools in well-off neighborhoods in the United States because one child with excellent health care and sanitation available has come down with a fever. Just my two cents....