Adam Carl Has Two First Names

It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death. - Maimonides

The French philosopher René Descartes once set out to prove the existence of God.  But in order to do so, to try and logically prove that God was real, he first decided he must completely abandon everything he ever believed.  Starting as a tabula rasa - a complete blank slate - he would then only postulate that for which he could show proof.  The first proposition he felt confident in adopting was Je pense donc je suis; later translated into Latin, it becamethe famous dictum cogito ergo sum - “I think therefore I am.” From that premise, he carefully went on to the next point, and the next, and so forth, until his dialectic, despite some gorgeous logic along the way, ultimately (in my opinion) fell apart.  The key point, though, is that the whole thing began with first clearing his mind of any and all previously held notions, no matter how dear, and then attempting to apply rigorous logic in pursuit of his theory.

In our jury system - which, despite its flaws, is a terrific system and a model to the rest of the world - a defendant starts out with an absolute presumption of innocence.  As jurors, we are charged, like Descartes before us, to believe absolutely nothing, to be blank slates, and from that point forward, to only believe that which is proved to us, carefully and methodically, with concrete evidence.  In criminal cases, it is the job of the prosecution not just to show us a preponderance of evidence (that’s for civil trials) but to obliterate all reasonable doubt.  

I admit that I did not watch the Casey Anthony trial particularly closely and only know what I saw on television and read in a handful of media accounts.  But I can say with some certainty that, despite my personal suspicions about Ms. Anthony’s actions - and certainly about her lack of character - I am proud of the jury that acquitted her.  If the prosecution did not meet its burden on the most serious charges, which twelve independent jurors quickly and resoundingly decided it did not, then a “not guilty” verdict was the only conclusion the jury could reasonably reach.  It has been said countless times, by countless people, that “not guilty” is not the same as “innocent” and it bears repeating here.  Ms. Anthony may very well have committed a most heinous crime, but the prosecution clearly could not prove it.  

You would be hard pressed to put twelve random people in a room and get them to agree on Mayonnaise vs. Miracle Whip, whether Jar Jar Binks was a crime against movie-goers, or where the President of the United States was born.  So when twelve jurors so quickly and resoundingly come to a decisive verdict, it is no small thing.  Nobody I know - and I dare say nobody you know - would be eager to absolve a possible baby killer, especially one as distasteful as Ms. Anthony; after hearing all of the testimony and evidence, there must have been reasonable doubt as to the events surrounding Caylee’s death.  If there was, then the jury absolutely did their Constitutional duty and ought to be commended.  Judging by the reaction to the verdict in the public at large, one would think that the jury would’ve had at least one hold out, some surrogate for the Of Course She Did It Crowd, screaming ”Are you people freaking kidding me?!” and insisting on a conviction.  But this was no hung jury.  Eight of the jurors didn’t come out after two weeks of contentious deliberations wanting to strangle the other four.  

Ten hours.  Unanimity.  Ask yourself why.  It’s not because they all wanted to race home and watch Franklin & Bash.  

It’s very easy to say dumb things like “People in Florida are crazy”, “The jury system is broken”, “These jurors don’t care about children”, “If you want to get away with murder, move to Florida”, and other such knee-jerk silliness, but the truth is that these twelve citizens likely overcame some persistent personal suspicions to do as the law says they must.  As far as they and the law were concerned, Casey Anthony was 100% innocent, and they could only convict if the evidence showed no reasonable doubt whatsoever about her guilt; the evidence apparently did not.  The acquittal, then, was entirely appropriate, actual guilt or innocence aside.  This system may sometimes lead to verdicts that seem unfair or outrageous, but I’ll take it every time.  The presumption of innocence combined with a prosecutorial burden is one of the precepts of our system of governance of which we ought to be most proud.  Despite some pretty notable and notorious aberrations, it will protect far more innocent people than it will benefit those who are guilty.  Far from showing that our jury system is broken, outcomes like this highlight its strength and nobility.

It was not long ago in our country’s history that juries did not take their impartiality seriously (and maybe some still don’t.)  Courts were corrupted and defendants were often railroaded and convicted on slim-to-no evidence.  Many of these convictions were racially motivated and the cases either entirely circumstantial, based on questionable eye-witness testimony, or made up out of whole cloth.  Indeed, prior to DNA testing, untold numbers of innocent people were not only convicted, but executed. Biases replaced evidence.  ”Of course he did it” replaced evidence.  Such convictions are a permanent stain on our nation.  So whenever I see a jury taking its role as impartial arbiters of the available facts seriously, especially in the face of juicy circumstantial evidence, crushing media attention and noisy public outcry, I metaphorically stand up and applaud.  

As far as the Anthony case is concerned, I suspect there is plenty of blame to go around for its failure: investigators, prosecutors, various Anthonys.  The jury, however, should escape public opprobrium; the jury did its 6th Amendment duty, nothing more, nothing less.  They judged not on what they (and so many of us) may have suspected, but solely on what was presented to them.

Good for them.  Good for all of us.

I consider marriage equality to be the defining civil rights issue of my generation, so this may be a controversial position to take, but I for one am glad - maybe even thrilled - that Barack Obama did not let his secret support of gay marriage get in the way of becoming the 44th President of the United States.  

Obama’s stated position on gay marriage, while complete and utter horse manure by any objective yardstick, has always been a cleverly nuanced one as far as political strategy is concerned.  Like many other politicians, he publicly supports civil unions but not same sex marriage, all the while allowing, as he did in his book The Audacity of Hope, that

“It is my obligation, not only as an elected official in a pluralistic society but also as a Christian, to remain open to the possibility that my unwillingness to support gay marriage is misguided… and that in years hence I may be seen as someone who was on the wrong side of history.”  

Well, duh.  He was a professor of Constitutional law for crying out loud, of course he knows that he’s wrong and he has virtually admitted it. That quote has so many clues in it, it may as well be from the DaVinci Code. Regardless, that needle-threading position allowed him to become elected to the presidency.  Liberals and progressives were going to vote for him no matter what; his clearly disingenuous position on marriage equality allowed him to hold on to some independents and voters of faith (yes, from both parties) who might otherwise have abandoned him- there would be no Rovian “wedge issue” this time around. Other than it being “the right thing to do”, there would have been very little political upside to him vocally supporting gay marriage prior to his election, when public opinion was not yet on our side.  We might’ve worshiped the man for doing it, but been denied his presidency.  We Democrats love our martyrs, but forget that.  This election was too important.  I’m deeply relieved that Obama had carefully staked out that lame and intellectually indefensible position.  

Would John McCain have ended the ban on gays serving openly in the military?  Would John McCain have dropped the federal government’s defense of The Defense of Marriage Act?  Would John McCain have appointed Sonia Sotomayor or Elena Kagen to the Supreme Court?  These are all major things Barack Obama has done in his three short years as President and they are huge steps forward on the march to real equality in this country.  And all the while, he has cleverly allowed his views on gay marriage to shift with the times.  He certainly can’t come right out now and say “I’ve changed my mind!”, he has to do it in a way which makes it seem organic.  Currently, it’s “I think it should be left up to the states.”  Brilliant.  He beats the conservatives at their own federalist game.  It’s a chess match and Obama sees the entire board.  I wholeheartedly believe that if he wins a second term (and that’s no sure thing), we will see Barack Obama announce, at long last, that he was in fact, as he long suspected, on the wrong side of history.  And if he’s a one term president who doesn’t have to run for anything else?  Well, he’ll probably reveal it then too.  

We can certainly make the claim, and we would not be wrong, that Obama’s position on gay marriage has been a morally cowardly one.  Yes, even the likes of Dick Cheney and Cindy McCain and a host of other prominent conservative voices have come out for marriage equality.  Hell, arguably our nation’s biggest advocate for the cause, Prop 8 attorney Theodore Olson, is one of the country’s most notable conservatives - he argued the victorious side in Bush v. Gore, for crying out loud.  But Olson isn’t running for anything and neither is Cheney and neither is Cindy McCain. They can afford the courage of their convictions.  

Senator Barack Obama’s full-throated support of gay marriage would not have made a whit of difference in the fight for equality. What matters to me are President Barack Obama’s actions, which have been decidedly pro-equality and pro gay rights.  A POTUS who claims not to support same sex marriage while instructing his Attorney General to stop defending DOMA in court? Yeah, I’ll take that.  I would much rather have a President who downplays his support of a cause I care about while steadily and stealthily doing everything he can to advance it, than one who talks a good game, but then does absolutely nothing to help. Barack Obama, in the vast majority of his words, and clearly in his deeds, has been doing all the right things for the LGBT community.

In fact, when Obama decided to drop the defense of DOMA, he made the critical claim that he believes the courts should apply “heightened scrutiny” to laws that classify people based on sexual orientation. This is hugely telling, as even the Supreme Court has yet to make that determination, even in its previous landmark gay rights cases. For a guy who supposedly is against gay marriage - and supposedly believes it ought to be left up to the states - Obama made an unequivocal legal claim that, if adopted by the courts, would lead inexorably to District Court Judge Vaughn Walker’s Prop 8 ruling being upheld by SCOTUS and, as a result, a federal mandate that all states must allow gay marriage.  Why would an opponent of gay marriage - a Constitutional law expert no less - hold such a legal opinion?  Well, one wouldn’t. Unless, of course, one weren’t an opponent at all.

Thanks to Obama’s presidency, when Perry v. Schwarzenegger finally reaches the Supreme Court, the right wing will not have a 7-2 majority, which they would have had McCain been allowed to fill the seats vacated by David Souter and John Paul Stevens. Had this been the case, Walker’s historic ruling overturning the loathsome Prop 8 would’ve been dead in the water; at present, it is very much alive, especially considering conservative swing vote Anthony Kennedy’s tendency in rulings past (see Lawrence v. Texas) to side with equality - no more so than when public opinion seems to be on its side as well. Well, the American public’s position on gay marriage has come a long way since 2008 - and Barack Obama’s is “shifting” in much the same manner. Meanwhile, his actions have been decidedly ahead of the curve.

But, you know, if you’d rather have a guy in there who says all the right things but never gets a chance to actually affect any real change, then by all means, keep crying about his dishonest, idiotic stance.  Me?  I’ll take dishonest idiots like this any day who actually work to undermine their own stated positions.

With enemies like these, who needs friends?

In honor of Sarah Palin quitting her bus tour half way through, like she does most everything else, I composed this short limerick:

There once was a girl from Alasker

Who would dodge every question you’d ask her

For the ultimate trap

You could show her a map

And task her to find Madagascar

Well, they did it. The goalposts have moved again.

After first claiming that Don’t Ask Don’t Tell repeal should wait for a Pentagon report (delivered), take a back seat to taxes (now passed) and objecting that it was part of a larger defense bill (it’s now a stand alone bill), the GOP is now threatening to kill the unrelated START treaty vote if Dems insist on holding the repeal vote - which they call “a strictly political vote” as if it has no real world consequences, no intrinsic value. Why such drastic measures to even prevent an up-or-down vote? Because they know if the vote happens, equality wins, with many in their own party (such as Susan Collins and Scott Brown) joining the cause.  

GOP Senators: threatening national security and the fate of the world’s nuclear arsenal in order to, at all costs, prevent gays from having equal rights. If this doesn’t qualify as “strictly political”, I don’t know what does: trying to protect their members from having to take a potentially unpopular vote - and trying to halt the progress of civil rights - by holding national security hostage. These are bad people, these Bob Corkers and John Kyls. Truly the scum of the Earth. May they rot in the lowest possible Circle of Hell. 

It is my fondest hope that Harry Reid and the majority leadership don’t bow to this act of parliamentary terrorism, this blackmail. I hope they hold the vote anyway, let equality prevail, and then let the GOP minority petulantly kill the START treaty in response. See how well that plays for them. Especially since they are doing exactly what they claim to despise about the Obama administration and Senate Democrats: they are shoving DADT down the throats of an American public that clearly wants it repealed.  

On this potentially landmark day, in which federal district court judge Virginia Phillips permanently enjoined the United States from enforcing Don’t Ask Don’t Tell, there was also another debate between California gubernatorial candidates Jerry Brown and Meg Whitman.  Which got me to thinking:

If you’re a Californian for whom marriage equality is a defining issue, and you don’t get off your keester and vote for Jerry Brown in November, then deep shame on you. 

Despite the fact that our attorney general was a named defendant in the landmark Prop 8 case Perry v. Schwarzenegger, he declined to defend the prop, conceded the fact that it was patently unconstitutional, and instead filed an amicus brief urging the court to invalidate it.  And when the Prop 8 defendants appealed to the 9th Circuit, both Brown and Governor Schwarzenegger refused to join the appeal on behalf of the state.  This refusal dealt a serious blow to the official opponents of gay marriage who might lack standing to pursue the appeal without the named defendants’ participation.  

This was a courageous and righteous move by our former governor (and our current one) and it came with a substantial amount of blowback - and a failed lawsuit - from those who believe it was his duty as A.G. to defend the proposition no matter his personal beliefs on the subject.

One of those critics is Meg Whitman, who said in tonight’s debate that Brown “needs to defend that lawsuit.”  So what do you think she’s going to do if she wins the election? And if our new attorney general is not Kamala Harris, but instead Steve Cooley, who has said he would mount a defense on behalf of the state?

Take them at their word.  Whitman and Cooley will obviously move to do what Arnold and Jerry nobly refused to: fight marriage equality in court - just as morally repugnant as fighting against Oliver Brown in his famed battle with The Topeka Board of Education.  They might do it under the guise of defending “the will of the people”, but that’s absurd on its face; no simply majority of voters can force a leader to openly and willfully violate the federal Constitution or discriminate against other Americans in violation of his or her own conscience.  It should be a badge of honor to look those voters in square in the eye and say “no way”. Whitman and Cooley fail that moral and constitutional test, and they fail it miserably.  Brown and Harris pass it with flying rainbow colors.

Voting for Jerry Brown, then, is not merely symbolic, not merely a way to reward him for taking the right position; the outcome of this election has very real consequences for the future of the Prop 8 appeal going forward.  In this light, even not voting at all is a vote against equality.

Marriage equality is a defining political issue for me and I will accept nothing less than full, vocal, unequivocal support from any candidate in California who is seeking my vote and in a position to effect the trajectory and outcome of Perry v. Schwarzenegger.

In the races for governor and attorney general, the choice is clear.  Meg Whitman and Steve Cooley, on the wrong side of history and the wrong side of the law, have announced their intention to put the full weight of the statehouse behind the defense of bigotry.

Jerry Brown and Kamala Harris, conversely, have bravely and unflinchingly stood with us on equality.  And now we must enthusiastically stand with them.

Tomorrow morning, Thursday, August 12th, Judge Vaughn Walker is going to rule on whether or not to lift the temporary “stay” he placed on his own ruling in Perry v. Schwarzenegger.  If the stay gets lifted, any couple in California may get married, immediately, sexual orientation be damned, until the state is told otherwise. If he leaves the stay in place, gay and lesbian couples will likely have to wait until the case works its way to the Ninth Circuit and beyond.

By all rights, Walker ought to lift the stay, simply based on his own conclusions in the comprehensive Perry v. Schwarzenegger ruling. There are already 18,000 gay married couples in California (including my friends Gregg and Ken, at whose wedding I officiated), adding more is, in legal parlance, “no big woop”; potential administrative burden is scarcely a compelling reason to continue denying due process and equal protection to any Californians; and Prop 8’s supporters can not show any demonstrable harm to them or to the state were gay marriages to resume.  

In light of Walker’s blistering ruling, lifting the stay is a relative no-brainer and would make a strong statement that the continuing harm inflicted by Prop 8 on gay couples is unacceptable and cannot be tolerated. And with both the Republican governor and the Democratic attorney general urging him to do just that, he certainly has political cover as well, not that he needs it. To keep the stay in place, however, would undermine the urgency and unequivocality of his own ruling.

That being said, here’s an interesting wrinkle: it is my understanding that Walker’s decision regarding the stay can itself be appealed. The named defendants in the case, Schwarzenegger and Brown among them, obviously won’t appeal it if he lifts the stay, as they were only titular defendants and publicly support the resumption of marriages. And the intervenors who actually do support Prop 8 may lack standing to appeal it. That point may be moot, however: even if Walker determines that the intervenors lack standing, the Ninth Circuit itself could step in and issue its own stay.  Whether it would or not in the absence of a direct appeal remains to be seen.

Regardless, unless I am sorely mistaken, Walker’s decision on the stay tomorrow will take a path almost identical to that of the case in general.  Let’s say an appeal of the stay decision, whichever way it goes, ends up at the Ninth Circuit. First a three judge panel will rule on it. That can then be appealed en banc to the full 11 member panel. Once the full court rules on the stay, the losing side can then appeal, if it so chooses, to the Supreme Court. The Supreme Court, however, is not in session until October. So the Ninth Circuit’s stay ruling would be put solely to the Justice in charge of the Ninth Circuit.  That justice is… wait for it… swing vote Anthony Kennedy. You can’t make this stuff up.

So then the guessing game begins. If Walker lifts the stay, and the Ninth Circuit denies the appeal, does Kennedy, a conservative at heart, issue his own injunction until the whole of SCOTUS can hear Perry v. Schwarzenegger? Or does he simply show deference to whatever decision the Ninth Circuit makes, even if it means allowing gay marriages to continue in California pending oral arguments? And can anything be read into this still theoretical stay decision as to which way he’s leaning overall? There are tons of variables, depending on which court rules which way and it leads down some fascinating legal paths.

Let’s hope the first path begins with the at least temporary resumption of all marriages in California.  We’ll find out tomorrow, between 9AM and 12PM P.S.T.

Tomorrow, August 4, 2010, a federal judge is going to hand down his ruling regarding the constitutionality of Prop 8, the measure which amended the California Constitution to specifically ban gays and lesbians from the government sanctioned civil institution of marriage.  Judge Vaughn Walker’s ruling is likely to favor those of us who stand for equality.  But the victory, though deeply sweet, will be short-lived, as the case will then be appealed to the Ninth Circuit Court of Appeals and, following that, to the Supreme Court.  True victory, if it is to come, is still down the road a piece.  

Expect foaming-at-the-mouth gay marriage opponents to blame this initial ruling on Walker’s homosexuality, even though he’s a George H.W. Bush appointee with a demonstrable history of fidelity to the law. (In fact, he was originally appointed to the bench by Ronald Reagan, but his nomination was scuttled with the help of Nancy Pelosi).  Expect them to shriek about “activist judges” even though, in this case, the Constitution is clearly on the side of equal protection and they are the ones arguing for crusading judges, unhappy with where the law unemotionally leads.  Expect them to decry liberals destroying America, even though the plaintiff’s lead attorney is conservative stalwart Ted Olson, George W. Bush’s former Solicitor General and the man who got Bush elected by arguing Bush v. Gore, the resolution of which trumped states’ rights and stopped the Florida recount.

Most of those who will be hollering the loudest paid little attention to the actual court case.  It was a sorry affair if you’re opposed to gay marriage.  The “defense” barely pretended to offer one.  Indeed, at one point their lead attorney even told the judge, stunningly, “we don’t need to show evidence” to back up their scare tactic assertions.

Sadly, that’s probably true.  I imagine their lawyer knew that no matter how lame a case he presented - and it was shockingly lame by any objective yardstick - it wouldn’t necessarily harm them at the end of the day.  They are counting on the fact that the fix is in: that the conservatives on the Supreme Court, because they are such blatant activists, will find a way to rule for them anyway. Roberts, Scalia, Thomas, Alito… whomever writes the opinion will no doubt reach their wing’s pre-conceived conclusion regardless of the specifics of the original case.  Olson could’ve been Clarence Darrow (and pretty much was), and defense counsel could’ve simply gotten up, farted and flipped the judge the bird, safe in the knowledge that those four Supremes would ultimately bail him out, jurisprudently speaking.  If need be, he must know, the Justices will make an argument for him that he never even made himself.  I say he must know this, because they’ve done it before - and he barely made an effort to conceal the weakness of his presentation.  

In all likelihood, it will all come to down Justice Anthony Kennedy, who has shown some sympathy in the past to the civil rights concerns of the LGBT community. In fact, he is on record in several major opinions - some of which he has written for the majority - citing points of law which favor equality; points on which he will be hard-pressed to reverse himself.  Perhaps that’s what Olson and his co-counsel David Boies were counting on when they decided to press this case.  One can only hope. Because Kennedy’s conservative cohorts will argue that an amendment discriminating against gays and lesbians can pass rational-basis review as long as the state is pressing a legitimate interest in protecting traditional marriage.  Never mind that Prop 8’s attorney choked when trying to make that exact claim; never mind that the “traditional marriage” canard was debunked, and thoroughly, by Olson and a panoply of historians and experts. The Unholy Four will reach that conclusion anyway, no matter the objective facts on our side and utter dearth of them on theirs.  So if Sotomayor and Kagan rule as we expect them to, then the liberty of millions of law abiding, tax paying Americans who happen to be homosexual rests almost squarely in Kennedy’s hands.  He has been spectacularly wrong many times. Let’s hope against hope that this time, as he did in Lawrence v. Texas, he gets it right. 

In the meantime, let’s enjoy the brief victory tomorrow, if victory it be, and revel in the judge’s decision, especially if it’s scathing.  Because after the farcical presentation the defense made as it desperately tried to justify enshrining discrimination in a State Constitution meant to prevent just such a scourge… well, let’s just say scathing is the least of what his decision ought to be.

Now you know what to get me for Christmas.

So I was driving North on I-5 the other day, from Orange County to L.A., and I saw a pretty unobtrusive Meg Whitman billboard, in Spanish. Luckily for you, I took four years of that fine language in high school. The billboard’s exact words were - and of course I’m paraphrasing - “No on Prop 187 and no on Arizona’s law”.

Now that’s political courage: coming out against a 16 year old ballot measure that was long ago declared unconstitutional. She’s not pandering at all. I’m sure it’s just that she’s been seething about this injustice since 1994. And since it never went into effect, you can understand why she’s bringing it up now. Oh, you can’t? Hmm.

I understand Meg’s next plan is to capture the African-American vote with a billboard that touts her support of the 13th Amendment.  It could say something like “Meg Whitman - No on slavery!”

Oh, and by the way, in case any of my conservative friends are reading this… unlike you, Meg Whitman is against 187 and against Arizona’s law. She just doesn’t like to brag about it in English.