"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Saturday, October 1, 2016

Alabama's strange stance on same sex marriage

It is interesting to be a witness to history.

In 1999, when I came to the United States, homosexuality was a crime.

In 2003, after the U.S. Supreme Court decision in Lawrence v Texas, it was not a crime any more, see the decision here.

Fast-forward 11 years more - and the U.S. Supreme Court found that same sex marriage is a constitutional right.

After the decision, some state officials, as well as private individuals refused to accept legality of the U.S. Supreme Court decision.

A Kentucky clerk Kim Davis

went to jail - with a lot of vocal support from various groups from around the country - defending her individual right not to issue same sex marriage licenses.

Now Kim Davis is reportedly on the receiving end of a motion for $233,058 in legal fees against her for refusing to issue same sex marriage licenses.

In three states,  Alabama, Oregon and Wyoming, judges who refused to officiate at same sex marriages, or gave instructions to others not to issue same sex marriage licenses, became the targets of judicial disciplinary proceedings.

In Alabama, the target of such a disciplinary proceeding was the state's Chief Judge Roy Moore,

who defended himself on the basis that the U.S. Supreme Court's decisions are not the Supreme Law of the Land - and they are actually not, despite the fact that they are presented that way in courts, law schools and in the press.

In Oregon, the target of the disciplinary proceedings was judge Vance Day.

In Wyoming, the target of the disciplinary proceedings is judge Ruth Neely.

While Alabama, Oregon and Wyoming prosecuted its judges for disobeying the U.S. Supreme Court precedent regarding constitutionality of same sex marriages, Texas State Bar refused to prosecute its Attorney General Ken Paxton

for the same behavior, instructing county clerks not to issue same sex marriage licenses.

And, in North Carolina, a federal civil rights lawsuit against the state's magistrates refusing to issue same sex marriage licenses, was recently dismissed. 

Federal judge Max Cogburn

who dismissed the case, claimed that plaintiffs failed to show that they have standing and that they were directly harmed by law.

I have put pictures of people at the center of controversies here to show the uniting factor - race.  All of them are white.  Whether it is a mere coincidence or not, and whether the coincidence means anything, is for my readers to judge. 

Among these six states:

  1. Alabama,
  2. Kentucky,
  3. North Carolina,
  4. Oregon,
  5. Texas, and
  6. Wyoming
that have come on the map with controversies where state officials defied the U.S. Supreme Court decision on same sex marriage, the strangest stance is in Alabama.

While Alabama suspended its Chief Judge Roy Moore, first, during the pendency of the disciplinary proceedings against him, and then, after the trial, for the rest of his term, the same blessed State of Alabama, through its Attorney General, refused to prosecute a florist for refusing to make a flower arrangement for a same sex marriage couple.

Moreover, Alabama State Attorney General reportedly joined "a dozen other states" in refusal to prosecute businesses for discrimination against same sex couples.

Here is the timeline of Alabama State AG's reaction to the same-sex marriage decisions by federal courts and their enforceability.

In February of 2015, before the U.S. Supreme Court decided the case Obergefell v Hodges, finding a constitutional right to marry for same sex couples, Alabama State AG issued the following press-release:

On September 30, 2016, on the same day as permanent suspension of Alabama Chief Judge Roy Moore was announced for defying the U.S. Supreme Court's same sex marriage decision, the Alabama State Attorney General issued this press-release:

So, apparently, we have 13 states asserting, in an amicus brief filed in a court case in a Washington state court, that business owners have a right to discriminate against customers based on their religious beliefs.

The states that filed the amicus briefs supporting such discrimination are:

  1. Alabama,
  2. Arkansas,
  3. Kansas,
  4. Kentucky,
  5. Louisiana,
  6. Nebraska,
  7. Nevada,
  8. Oklahoma,
  9. South Carolina,
  10. Texas,
  11. Utah, and
  12. West Virginia.
The lawsuit in State of Washington court is posed as an issue of state constitutional law - whether people must shelve their religious beliefs when they open a business.

Yet, the U.S. Supreme Court has already ruled that business owners may not discriminate on the basis of race.

Since the U.S. Supreme Court upheld constitutionality of same sex marriage, it is not a big stretch of imagination to predict that discrimination on the basis of sex orientation by private business owners will be prohibited, too.

Yet, the Alabama Attorney General sends to the public interesting vibes by making the press release about his support of business owners in the State of Washington, and based on state Constitution, on the same day as the State Chief Judge Roy Moore was suspended for defying the U.S. Supreme Court decision on same sex marriage.

When one public official is de facto removed from office for nearly the same conduct as the other public official in the same state is continuing to display, that is a strange state of events, indeed.

And especially when, notably, Alabama State Attorney General joined Texas State Attorney General in the amicus brief regarding state constitutional right of private businesses to discriminate against same sex couples - that is the same Texas State Attorney General who also instructed county clerks in his state not to issue same-sex marriage licenses, and the Texas Bar would not prosecute him for misconduct.

What an interesting time we live in...

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