Tuesday, February 7, 2012

Ninth Circuit decision

9th Circuit Court of Appeals ruling striking down Proposition 8


  1. Joe,

    How is the Ninth Circuit doing?

    Obviously, they are convicted. For the second time they have said that California's constitution is unconstitutional. You give legal advice. I give medical/legal advice when it comes to health care and the law. I am bound to offer any potential downside to treatment and an opinion relative to disability.

    Do you see any downside to the Ninth Circuit decision?

    This is a loaded question.

  2. I'm not sure what you mean by downside. If you mean that this one decision is not the end of the matter, then of course you're right. There is still the U.S. Supreme Court, and there are further actions that can be taken by the legislature. But maybe it's good to remember that the issue in this case is a lot narrower than most people think. In California, same sex couples already have all of legal rights of married couples (except for rights under federal law, and there is nothing California can do about that--that issue will not get decided until the Supreme Court rules on the constitutionality of the Defense of Marriage Act, or until that federal statute is repealed or changed).

    The ONLY issue in this particular case is whether same sex couples are allowed to use the word "marriage" to describe a legal relationship that as I said is exactly the same under state law as marriage. If you look at it that way, then somebody opposed to gay marriage could say, what's the big deal? You already get all the state law benefits of marriage. You just can't call it marriage. And somebody in favor of gay marriage could also say, what's the big deal? We already get all the same state law benefits of marriage. How could there possibly be any harm in calling it marriage?

    I'm not going to try to minimize the importance of this case, but I think it is good for people to understand exactly what was at stake in this particular case, and what was not at stake.

  3. For the record I completely agree with California's legal laws for same sex couples. I do have questions about how the circuit judges came the their most recent conclusions 2 to 1. Like Obamacare, one doesn't have to be opposed the grand idea to see the serious flaws in a law and/or judicial decision making. Those flaws are what we should all be concerned about as they undermine what may be gained.

  4. I used to think back when I was a naive young law clerk, working in the federal district court, and especially because I was a liberal working for a conservative judge, that if you studied legal problems long and hard enough, the law would lead you to the correct conclusion. And it gave me a lot of comfort that my judge and I would almost always agree on the result on our cases, even though we saw things differently politically.

    But as I said, I worked for a district (trial) court judge. At the appellate level, and especially at the Supreme Court level, you can usually make a decent legal argument for both sides' positions. That means that a lot of other factors, whether philosophical, political, psychological or whatever, end up going into the judges' decisions. And that's why you see courts splitting along ideological lines a lot of the time, even if the judges are honestly trying to find the correct result that the law provides.

  5. Having said all that, I would add that, legally speaking, the dissent in this case seems very weak, and the arguments in this case have been carefully designed by two really smart lawyers, Boies and Olsen, to win in the U.S. Supreme Court. Or at least to win Justice Kennedy's vote in the Supreme Court. Which is the only vote they need to win.

  6. It is an important part of history.

    << That means that a lot of other factors, whether philosophical, political, psychological or whatever, end up going into the judges' decisions. >>

    Exactly. This isn't all about law.

  7. Well it is all about law, but law can encompass all those other fields. And legal precedents do not answer all questions, not even all legal questions. Sometimes when you are a judge you have to decide if the case in front of you is more like the X case or more like the Y case, where X and Y would each lead you to a different result, but actually the case in front of you is not exactly like either one of them. And sometimes you have to make it up as you go along, based on what you think is right and fair, but always trying to be consistent with the law.

    Even in medicine, which is more of a science than law, you might have a couple of different possible diagnoses, and different courses of treatment, which different doctors might recommend depending on what they think works best for the individual patient.

  8. As you know, physicians make mistakes. So do judges.

    A physician can be sued even if they are innocent of wrong doing. And if they make a mistake under certain circumstances they can be subject to huge fines or may face disciplinary action, or lose their license to practice.

    Like attorneys and judges, some physicians are better than others, especially if they get emotional. Physicians don't always agree on a course of treatment. You may like what Ginsberg has to say about our constitution. I didn't like it.

    Ten years ago I had a surgeon tell me my daughter's arm had to be amputated. I went somewhere else and my daughter still has her arm. One of the great things about our system of medicine has been our ability to choose our doctors and our care. That is in danger. I guess our judges will get a chance to sort that one out too.

  9. "Like attorneys and judges, some physicians are better than others, especially if they get emotional."

    What I meant to convey is that it might not be the best decision to have your spouse doing your brain surgery because of her emotional attachment to the project. Likewise, a judge may have trouble staying objective when it comes to specific issues.