Sunday, May 25, 2014

My Memorial Day Feeling

Thanks to all the men and women who wore, and now wear, the uniform.  We in civilian life owe you a debt that we can never fully repay.  

And thanks, Buck.  

Sunday, May 18, 2014

My Sunday Feeling

It is with no small amount of trepidation that I write today about Pulaski County Circuit Judge Chris Piazza's recent ruling in which he declared unconstitutional 2 state laws prohibiting and/or refusing to recognize same sex marriages.  One is Act 144 of 1997 passed by the Arkansas General Assembly which states that "[m]arriage shall only be between a man and a woman. A marriage between persons of the same sex is void."

The second was Amendment 83 to the Arkansas Constitution, which was approved by a majority of voters, states that, in pertinent part, that "Legal status for unmarried persons which is identical or substantially similar to marital status shall not be recognized in Arkansas."  This means that gay unions solemnized in jurisdictions that allow same would not be given full faith and credit in Arkansas. 

The resultant furor that instantly erupted was predictable.   Certain legislators called for the impeachment of Judge Piazza for allegedly failing to uphold the Arkansas Constitution.  Others wondered how "one man" could strike down laws passed by the electorate and/or their representatives, typically described as being accomplished with a "mere stroke of a pen."  

Let me premise this discussion with a few observations.  There are folks that are repulsed by gay people.  I understand that.  There are folks whose opposition to gay marriage is a matter of deeply held religious beliefs.  I understand that.  There are churches that do not perform or recognize gay marriage.  The church I belong to is one of them.  I understand that many people are indignant as a result of this decision.  What I don't understand is the apparent lack of working knowledge of how the system works on the part of many people.  But I view moments such as these as teachable ones.  My trepidation lies in a certain fatalism on my part as to the prospects of even minimal success.  But off we go.

Let us put something else on the table, which Judge Piazza writing for the Court seized on in its opinion and which nobody else to my knowledge has commented upon.  Although the Court didn't go this far, marriage can be and is typically a function of both church and state.  The vast majority of folks get married in a religious service pursuant to the teachings of a particular faith.  However, some folks choose to get married in a purely civil ceremony.  At the Courthouse perhaps.  The similarity between the two rituals is this: the condition precedent to both is the issuance of a marriage license by the State which the Court referred to as a "civil document." 

In my view, the 13 page decision of the Court may be boiled down to the second full paragraph of page 9:

"A marriage license is a civil document and is not, nor can it be, based upon any particular faith.  Same-sex couples are a morally disliked minority and the constitutional amendment to ban same-sex marriage is driven by animus rather than a rational basis.  This violates the (Equal Protection Clause) of the United States Constitution." (Parenthetical supplied.) And while the Court was discussing Amendment 83, it is no stretch to state that similar logic would most likely apply to Act 144.  

One may notice my copious references to the decision being rendered by "the Court." This is because this decision is not merely Judge Piazza (or "one man" to use the popular parlance) giving his personal opinion on the issue.  This is a ruling by a Court of Law after all sides were given the full opportunity to brief and argue the issue.  This is what Courts do when so called upon. And, like it or not, as the United States Supreme Court has said, " It is emphatically the province of the judicial department to say what the law is."  It is called judicial review.  The quote above came from Chief Justice John Marshall in 1803 in the case of Marbury vs. Madison.  It is the first case every young law student learns in Constitutional Law. 

Further, as other folks have said, rights aren't subject to a vote.  That's why they're called "rights." Agree or disagree with this decision as you will.  But the Court is authorized under the principle of judicial review to examine any statute passed by the legislature or any regulation promulgated by an agency, assuming the case is otherwise properly before it. 

Concerning the calls for the Judge's impeachment for failure to "uphold the Constitution" they may be dispensed with quickly.  Judge Piazza (and myself as well come to think of it) took an Oath to defend both the Arkansas and United States Constitutions.  The Judge applied recent United States Supreme Court (along with other Federal Court) decisions and applied the law as he saw it.  That is what his Oath compels him, and every judge, to do.

You may fervently disagree with the decision, which is your right.  But history demonstrates that just because an amendment has been tacked onto the oft-amended Arkansas Constitution doesn't make it Constitutional under the United States Constitution, which like it or not, is the supreme law of the land.  So, his decision is not even remotely an impeachable offense.  Besides, the Legislature isn't even in session.  There's no place to file the Articles of Impeachment if they drew them up last night.  This is lunacy of the first water.

Saner heads, which seem to be in short supply at times, have rightly stated that the appeals process is the only proper route under this and any other set of facts.  And indeed, the decision will be appealed, consistent with the rule of law. And the Arkansas Supreme Court has issued a Stay of the decision pending its review.  

I have no earthly idea what the Arkansas Supreme Court will do.  I do know that laws similar to Arkansas' are being invalidated by Federal Courts throughout the country.  The Pulaski County Circuit Court may be wrong.  The Court may be right.  We shall see.  But it would not surprise me terribly if these laws, and laws similar to it throughout the land, are eventually struck down.   That's not a personal opinion.  That's my professional opinion.  

And impeaching Chris Piazza,or fantasizing about "activist judges," isn't going to change that.

Sunday, May 11, 2014

My Mother's Day Feeling

It  wasn't until about last Thursday or so that I realized that today was Mother's Day.  Mother passed away in 2009.  That isn't such a long time ago.  But still.  She's not around and I'm pretty oblivious to the culture around me most of the time especially when it comes to advertising.  But really, it didn't occur to me until one of the moms in my life told me her daughter was taking her to Tunica for the day.  

A surprising number of my peers still have their mothers.  R's mom is pushing 90-something if she's a day.  J's mom is getting up there too.  She told me yesterday that her mom wants a hamburger today and that she wants to get her ears pierced when she hits 90.  Something tells me that these things will happen.  Don still has both his parents and they are doing pretty well all things considered.  Off the top of my head, he's the only one with the full compliment still although I'm sure that's not right.

And then there are my friends who are spending their first Mother's Day without their moms.  My friend B lost her mom last Fall.  Then her father up and died a week after that. I just can't imagine. I got a text from her late yesterday afternoon.

"I guess it's normal to be crying all weekend on the first Mother's Day without her, right?" the message said.

Oh man.  

"It is normal," I wrote back." It is normal to be whatever you are. These things are markers and they are unsettling.  But it gets better.  Really it does."

Indeed, I managed to forget that today is Mother's Day.  

She allowed as how she knew that I missed my own mother.  Well, as they say on Facebook, "It's complicated."

Mother was so sick and miserable in her final days that her passing was a blessing.  It would have been selfish to have wanted her to last 5 more minutes beyond her allotted time under the circumstances.  Further, we didn't have much of a "parent-child" relationship the last 10-15 years of her life.  It was like the roles had reversed and I was the caregiver.  I was also the agent of her destruction and the occasional object of her anger and frustration.

Which I accepted.  I didn't even take it personally.  She was extremely ill.  She hated not living in her home. Somebody had to wear the bulls eye.  Might as well have been me.  Don't misunderstand me.  Mother was a very good person and was capable of great kindness.  She was just miserable the last 10 years of her life.  Like I said, I didn't take it personally. And mostly I just don't want to think about it.

I suppose that I miss the "concept" of having a mother in my life.  But that's all it is.  A concept.  A warm fuzzy.  It's not anything I really had since I came back from law school.  

The more I think about it, perhaps the reason that I don't feel a particular void is because I am fortunate to have about 500 women hovering over me at any particular moment. I am, indeed, "mother-henned" to a fare-the-well.  I cannot sneeze without somebody in pumps materializing with Kleenex, soup and the occasional stern lecture.  Of course, I exaggerate. But not by much.

I don't know how I came to be this lucky.  It's certainly nothing that I deserve. But neither am I going to turn it down. 

So for one reason or another Mother's Day doesn't resonate with me much anymore.  The first one spent without Mother was a marker.  Now it's not even that. 

As I told B, the markers get better over time.  As for me, "it's complicated" has not.

We shall see if that ever changes.  But it's OK if it does not.

Sunday, May 04, 2014

My Sunday Feeling

Even those who are but dimly aware of the existence of the National Basketball Association are bound to be cognizant of the controversy surrounding certain inelegant remarks made by Los Angeles Clippers owner Donald Sterling about about blacks in general and Magic Johnson in particular that a female associate named V. Stiviano recorded and leaked to the tabloid TMZ.  ( Let's leave her title as "associate" for no other reason than the exact outer-perimeter of the extent of her relationship with Mr. Sterling remains murky even as of this writing.) 

As is now known, Sterling was recorded telling Ms. Stiviano to quit hanging out with so many black guys.  A selfie taken by her with she and Magic Johnson was found particularly objectionable by Sterling.  And he told her so in no uncertain terms.

And so last Tuesday NBA Commissioner Adam Silver announced that Sterling was banned for life from the NBA and the Clippers.  He was also fined 2.5 million dollars.  (Collecting that might be a trick under the circumstances.)

Let's do the backstory on Sterling.  He started out as a Plaintiff's lawyer doing divorce and PI work in Los Angeles.  He invested heavily in commercial real estate where he made his fortune as a classical "buy and hold" investor.  In 1981 he bought the San Diego Clippers which he moved to Los Angeles apparently in order to run the franchise into the ground in a more prominent location.  

And make no mistake about it, up until fairly recently, the Clippers were the joke of the NBA.  Indeed, one can make the case that the Clippers, for the vast majority of their existence, were the worst franchise in the history of sports.  And yes, I am aware that this closed universe of misery and incompetence contains the Cleveland Browns, the Los Angeles Dodgers under the McCourts, the Buffalo Bills, perennial favorite Chicago Cubs and, most recently, the New York Knicks.  

As if this were not sufficient embarrassment to the league, Sterling is no stranger to the court system.  He has been sued for housing discrimination.  He has been sued for sexual harassment.  He was sued by former coaches Elgin Baylor (Elgin Baylor!) Bill Fitch, Bob Weiss and Mike Dunleavy.  

So suffice it so say that when Sterling's provocative views on racial matters made the light of day,it may be safely observed that he didn't have a lot of goodwill in the tank to fall back on.  

And yet, there have been some who have raised questions about the fairness of the action taken by the NBA.  After all, this was a private conversation that was perhaps illegally recorded under California law.  There has been some questions raised about whether the NBA's actions violate Sterling's rights of free-speech.  Dallas Mavericks owner Mark Cuban worried about this creating a "slippery slope" where owner's could be penalized for speaking their minds, an outcome well-known to the oft-fined Mr. Cuban.  Rush Limbaugh spun a conspiracy out of whole cloth wherein he imagined a plot on the part of-guess who?-Magic Johnson to wrest control of the Clips from Sterling.  Predictably, Tea Party darling Allen West weighed in on the matter.  And predictably, he got it completely wrong in wondering whether "where being a jerk is grounds for confiscation of property."

As I like to say at such times, this is an opportunity to teach.  

Except for circumstances not presently before us, only the government can violate your rights.  Only the government can confiscate property.  The NBA Constitution allows an owner to be kicked out after a 2/3 vote of the other owners.  It also allows the Commissioner to act in the best interests of the sport (basically) in areas not covered by said Constitution.  This is a private action taken by basically a private club which is seeking to expel one of its members.  

I wouldn't be surprised if the litigious Mr. Sterling sues to block this action (although the NBA Constitution forbids it).  Maybe he can sue Ms. Stiviano for defamation (good luck) or for violating his rights under California law.  But make no mistake about it, the NBA's action against Sterling doesn't violate his "right to free speech" under the United States Constitution.  And neither has his property been "confiscated."

And speaking of which, if Sterling is forced to sell, he stands to turn a profit of about a half a billion dollars according to some experts.  If anybody out there wants to "confiscate" me to that extent they are welcome to come on.  

But does the fact that Donald Sterling faces such a harsh penalty over a private conversation bother me?  Yeah.  A little.  But what was the NBA supposed to do?  Sponsors were bailing.  Boycotts and rallies were being cooked up over this.  The players union was apoplectic.  And as for the Clippers themselves, Head Coach Doc Rivers described his team, even the two white players, as "pissed." And the biggest impediment to their progression through the playoffs was the guy that signed the checks.

Clearly swift action had to be taken.  It wasn't like they caught Frank Vogel or Greg Popovich inexplicably saying these things on tape.  It was Donald Sterling.  The man who had no goodwill in the tank to sustain him when a lifetime of odious conduct finally caught up with him and took a big chunk out of his ass.  

After all, did you hear a single soul express surprise that Donald Sterling was capable of such venom?  No, you did not.  Not a single soul.  

Which tells you pretty much all you need to know.