Bloggers Summit "Live" on Podcast

Sean Tubb's from the Charlottesville Podcasting Network has his podcast report on the bloggers' summit up on his website. Hear Barnie Day, Frosty Landon, Kenton Ngo, Jay Hughes, Sean O'Brien, and SBE official Chris Piper and me (!) talk about blogging, the summit, regulations, etc.

In Discussing Regulation: Bloggers Naïve About the Law?

One of the more interesting "threads" at the bloggers’ summit on Saturday was the discussion about whether bloggers or blogging should be regulated. Interesting, perhaps, because some (many?) in the audience appear not to know that the activities of some Virginia bloggers already are subject to some regulation and that blogging comes with some exposure to legal liability, i.e., lawsuits seeking damages for things said in the blogosphere.

To paraphrase, where bloggers stand on regulation (even self-regulation) depends on where they sit. It is clear that some bloggers see themselves as publishers of political commentary, their own and others; some see themselves as pamphleteers; some see themselves as journalists (gathering and reporting "news"); some see themselves as entertainers; some admitted being paid political flaks, electioneering for pay on behalf of a candidate or cause; and some see themselves simply as citizen activists on their soap boxes in an electronic town square.

Bloggers who see themselves as publishers, particularly those seeking to make a business out of blogging, were most likely to support the development of a voluntary code of conduct, statement of blogging ethics or other disclosure policy designed to enhance their "credibility with readers" and, one would guess, paid sponsors.

Among the more strident voices decrying any regulation (external or internal) were those who spoke of themselves simply as "citizens speaking freely" or "engaged citizens simply communicating through a new medium."

This latter group of self-described libertarians and freedom fighters appeared to be operating under the false belief that, unless something happened to change the status quo, blogging is currently free from legal constraint, protected, in their view, by an absolute guarantee offered under the First Amendment to the US Constitution. This is simply not true.

The First Amendment is not absolute. It does not protect anyone’s speech from an adverse private action, and, despite its terms ("the government shall make no law"); it only protects public speech from government regulation that cannot be justified as serving a significant government interest.

Every person who writes or speaks publicly (and the Internet is certainly public) is subject to reasonable time, place and manner restrictions on his or her speech. You can stand up on a soap box and say what you will but you can’t do it on private property without permission and, on public property, the government can ask you to get a permit, tell you where you can put the soap box, prescribe how long you can stand on it, and regulate whether you can use a bull horn.

Freedom of speech also does not authorize public speech that defames a person or a corporation. A statement is defamatory if it is false and causes the person harm. Whether blogger or MSM reporter (or public park soapbox orator), you expose yourself to legal liability if, while speaking or writing publicly, you defame (slander or libel) someone.

Moreover, if you repeat someone else’s defamatory comments in your speech, pamphlet or blog, or you allow someone to write libel in a guest column in your publication or post a libelous comment on your blog, you are legally responsible for republishing the libel and might be held accountable, e.g., forced to pay for actual damages to business or reputation caused by the libel.

Republication is an area in which there is special federal protection for Internet publications. Congress enacted Section 230 of the Communications Decency Act which protects internet intermediaries from being held accountable for the acts of others. But, at least one court has held that this law does not apply to state defamation claims.

In any case, there are three key things to remember about defamation: truth is always a defense to a defamation claim, it may be a defense that the statement is an opinion rather than a statement of fact, and the standard of liability for defaming (libeling or slandering) a public official is higher than it would be if the object of the libel is a private person.

You can’t be held accountable for defaming a public figure unless you acted with actual malice, i.e., you knew in advance that what you published was actually false or you published it in reckless disregard of the truth.

Who’s a public figure? Any elected official, any person who is well-known in a particular area or who is in the media frequently, and possibly a private person who seeks media attention for a specific purpose in order to influence the public.

So, bloggers take note. On defamation, a bit of self-regulation may be necessary to self-preservation.

Best to watch one’s own p’s and q’s. And, when you see that nasty little rumor that some anonymous poster has added to the comment section of your blog, keep in mind that the comment could put you in the bullseye of a lawsuit (particularly where the identity of the actual defamer is unknown) even if the rumor involves a public official. If you know that the rumor is false or could easily determine that it’s false and you leave the comment up there anyway, you’re a sitting duck. And, if the comment is simply a false statement about a fellow blogger or a commenter rather than a public figure … then you could be held responsible for any damages that can be linked to the fact that you published it. Even if you win the suit, because the federal law does apply, the cost of defending it could be devastating.

More tomorrow …. Electioneering as a regulated form of free speech.

Disclaimer:
This blog entry is not intended to be nor should it be read as legal advice. It is provided for education only. Any person with a question about the law of defamation should consult with an attorney licensed to practice in the jurisdiction in which he or she lives or does business.

Baskerville Ahead of the Curve?

Last fall, Delegate and primary candidate for Lt. Governor, Viola Baskerville wrote to the Governor's Commission on Military Base Closings to invite the Commission to support several initiatives that she thought could enhance Virginia's ability to compete effectively with Florida, Texas and North Carolina in this round of the BRAC exercise. Among the bills which she proposed and later introduced was a bill to establish a Defense Infrastructure Fund. Infrastructure projects eligible for funding under her proposed legislation would have included those relating to encroachment (the issue re: Oceana), transportation and access, utilities, communications, housing, environment, and security. Although the Commission staff advised the Commission that everything that Delegate Baskerville recommended would be helpful to Virginia's BRAC case, the Commission failed to endorse any of the legislative actions she proposed.

One has to wonder if greater legislative support for military families and passage of her bill proposing a Defense Infrastructure Grant Fund would have enhanced Virginia's chances of success in the BRAC effort or made it less likely that the BRAC Commission would overrule the military on Oceana and other key recommendations.

The Virginia Amendment to Ban Unmarried Relationships II

Commenting on my earlier post on this subject, Richmond lawyer Marc Purintun has written a thoughtful analysis of the real impact of the proposed Virginia "marriage" amendment that should make every thinking Virginian pause and compel reasoned Virginia lawmakers, at a minimum, to make significant changes in the language of the proposed amendment before action is taken to put a proposed amendment on the ballot for consideration by the voters:

While the whole idea of writing marriage inequality into the Virginia Constitution is unacceptable to most gay and lesbian voters, what many of us find most objectionable and frightening is the overbroad language of the proposed constitutional amendment. The General Assembly has already codified its position that marriage is between a man and a woman three times. The proposed constitutional amendment is much more far reaching, however, preventing same-sex couples and unmarried heterosexual couples from appealing to any level of government for recognition at any time. For example, if a same-sex couple were to seek to jointly adopt a child, or for the non-biological parent to adopt the child of the couple, under the proposed constitutional amendment a social service agency could not recognize that the two unrelated persons were a couple, the judge couple not recognize that the non-biological parent was in a coupled relationship with the biological parent. This proposed constitutional amendment goes well beyond the definition of marriage and casts in stone the ways in which all levels of government in the Commonwealth will respond to same-sex couples, and unmarried heterosexual couples in perpetuity.

Additional possible consequences of this amendment include preventing public schools from recognizing both actual parents of a child of a same-sex or unmarried heterosexual couple, disallowing city and county law makers from recognizing same-sex couples and unmarried heterosexual couples who are joint property owners or business owners. It would prevent state universities and other government employers from recognizing the status of their employee's relationships for purposes as substantial as health care benefits and as meaningful as bereavement leave. State medical and mental hospitals would not be allowed to recognize same-sex couples and unmarried heterosexual couples for purposes of visitation or decision making.

Finally, this amendment would make Virginia an unsafe zone for persons, heterosexual or homosexual, who have in other states (or countries) entered into same-sex marriages, domestic partnerships or civil union arrangements. Such persons may have not entered into the same forms of expensive and not totally effective legal contracts with their partners as same-sex couples do in Virginia because they are relying on the law of their locality to meet these needs. When planning business ventures, business trips or even vacations, such persons must consider the risk of having a Virginia hospital, state agency or court disregard their relationship. Many will see the proposed constitutional amendment as hostile to those relationships, the risks too high and will choose other venues.

Here are my questions for thinking Virginians to consider based on Marc's analysis:

Can Virginia market itself effectively to tourists (especially for the upcoming 2007 celebration) with this proposal standing in our way?

Can Virginia continue to say it is "open for business" if the effect of this proposal may be to set limits on private business decisions that will make Virginia based companies less competitive in a global marketplace?

Can Virginia continue to recruit the highest quality faculty to teach at our universities if we cannot offer competitive benefits or a welcoming environment for their families?

Can we really talk about opposing discrimination in employment and housing based on sexual orientation (and, don't get me wrong, I applaud Jerry Falwell for doing so) while we advocate a constitutional amendment that will deny all unmarried couples and their families basic protections that assure financial and personal security?

I don't think so; do you?

This is Leadership?

Kilgore said in a press release issued today, titled "Herndon's Decision to Fund Day Labor Centers":

"As Governor, I would support legislation that clarifies Virginia law to say that those who are illegally present are not eligible for public benefits, including the expenditure of taxpayer money for services such as the day labor centers in Fairfax County."

Of course, Kilgore misses a number of facts in his release, in addition to accusing people of flaunting the law rather than flouting it.

The first fact his statement seems to be missing is that there already are federal and state laws that bar persons illegally present in the US from receiving public benefits.

The federal law (on the books since 1996) even bans some legal immigrants, including permanent residents, from getting federally funded benefits like TANF, food stamps, etc. causing "devolution" of the responsibility to meet the needs of these legal residents to local governments with no funding.

The new state law (effective 01/01/06), which is largely redundant of the federal law, also requires persons to show that they are legally present in the US to get Medicaid, welfare (TANF) and other kinds of cash relief.

The second error in the release is that it says that Herndon voted to fund the day labor center. Actually, the town council only voted on a land use matter, allowing the center to be located in the Town.

The taxpayer money being spent here is being spent by Fairfax County (in which the independent town of Herndon is located). And the money being spent is for a contract with a nonprofit that won't actually be providing services to prospective workers (legal and illegal) other than a safe place to stand.

The real services being provided here are to:
1)Herndon residents and business owners whose lives/businesses have been disrupted by nuisances caused by the unorganized, free market driven efforts of contractors and home owners to find needed temporary workers and those who wish to meet this need; and
2) the contractors/home owners looking for workers.

As with all economic/market issues, the way to affect supply is to depress demand.

If Kilgore really wanted to stop those who "reward and encourage illegal behavior," and not just beat up on immigrants because doing so polls well, he would:

1) say he would support state legislation to criminalize the homeowners and businesses who hire the workers/independent contractors at these sites or elsewhere (85% of VA farmers say that they'll go out of business without these workers, see also home building, toursim/hotels/restaurants, etc). A JLARC Report documents this.

2) go to our Congressmen/women and Senators and his President, and demand immigration reform that would decriminalize behavior (hiring and working) that has been the engine of Virginia's economy since the 90's, see below:

A recent analysis of the labor market statistics in the 2000 Census data that was prepared for the National Business Roundtable in Washington, DC, estimated that 44% of male workers entering Virginia’s workforce in the 1990s were immigrants and that the "[t]he national jobs boom of the 1990s clearly would not have been ossible in the absence of these new record waves of immigrant workers, especially men. The Great American Job Machine was largely fueled by new immigrant labor, a finding that has received insufficient attention from most economic and labor market analysts." The Business Roundtable analysis also showed that "[I]mmigrant workers, especially new immigrants, are over-represented in blue-collar ccupations, service occupations, and farm/forestry/fishing jobs." The full Business Roundtable eport may be downloaded at http://www.brtable.org/pdf/781.pdf.

UCLA's North American Integration and Development Center reported in 2001 that undocumented workers contribute more than $300 billion to the economy annually. These workers make substantial contributions in the agriculture, building and construction and hospitality industries -- all of which are important sectors of Virginia’s economy.

But to attack demand would require taking on Virginia's business community.

And to attack members of Congress and the President for inaction on immigration would be to attack fellow Republicans.

And, both of those would require leadership and courage ....

And, attacking the voiceless does not.

Solid South? Kaine as the Status Quo Ante

This item of interest on Facing South from the Institute of Southern Studies.....

According to SurveyUSA, Bush's approval rating in the 13 southern states that he won in 2004 is below 50% in 8 states where a majority disapprove including Virginia. He's below 50% in two states, Louisiana and No. Carolina, where approve/disapprove is tied at 48% and 47% respectively; below 50% in Mississippi where approve/disapprove is 49%/47%; and above 50% in only Alabama and Texas.

In Virginia, only 42% approve of Bush while 52% disapprove.

Comparing the so-called solid south to the nation, Facing South says:

How does this compare to the rest of the country? Interestingly, out of the 10 states nationally with the highest approval ratings for Bush, only three are in the South. All the rest are from the West and Great Plains (in order of pro-Bush approval): Idaho, Wyoming, Utah, Nebraska, North Dakota, Montana, and Oklahoma. It's just one poll from one polling company. But maybe the GOP's lock on the South isn't so "solid" after all.

Now, it's unclear what the question was that elicited this response, but this could be good news for Kaine if he can tighten his connection to Warner in the voter's minds.

2/3rds of Virginia voters think the state is headed the right direction. Now more than half think that the national leadership is flawed.

So, Kaine's message is "why change from someone linked to an administration of which you heartily approve to someone linked to an administration of which you disapprove?"

Well, we all know how much Virginians hate change.

Sexual Orientation is Not a Choice II

The Boston Globe published a comprehensive article this week on the subject whether sexual orientation is in born or not. In "What Makes People Gay?" the Family Foundation and "many gay rights advocates" appeared to agree on one thing: that proving that sexual orientation is in born might change the nature of the public debate. At the same time, the article notes that religion is a choice that Americans have long agreed should be protected.

Here's an excerpt from the 11 page article:

"Proving people are born gay would give them wider social acceptance and better protection against discrimination, many gay rights advocates argue. In the last decade, as this "biological" argument has gained momentum, polls find Americans - especially young adults - increasingly tolerant of gays and lesbians. And that's exactly what has groups opposed to homosexuality so concerned. The Family Research Council, a conservative Christian think tank in Washington, D.C., argues in its book Getting It Straight that finding people are born gay "would advance the idea that sexual orientation is an innate characteristic, like race; that homosexuals, like African-Americans,should be legally protected against 'discrimination;' and that disapproval of homosexuality should be as socially stigmatized as racism. However, it is not true."

"Some advocates of gay marriage argue that proving sexual orientation is inborn would make it easier to frame the debate as simply a matter of civil rights. That could be true, but then again, freedom of religion enjoyed federal protection long before inborn traits like race and sex."

So, what did the article conclude about why people are gay?

IN THE COURSE OF REPORTING THIS STORY, I EXPERIENCED A good deal of whiplash. Just when I would become swayed by the evidence supporting one discreet theory, I would stumble onto new evidence casting some doubt on it. Ultimately, I accepted this as unavoidable terrain in the hunt for the basis of sexual orientation. This is, after all, a research field built on underfunded, idiosyncratic studies that are met with full-barreled responses from opposing and well-funded advocacy groups determined to make the results from the lab hew to the scripts they've honed for the talk-show circuit. You can't really blame the advocacy groups. The stakes are high. In the end, homosexuality remains such a divisive issue that only thoroughly tested research will get society to accept what science has to say about its origin. Critics of funding for sexual orientation research say that it isn't curing cancer, and they're right. But we devote a lot more dollars to studying other issues that aren't curing cancer and have less resonance in society.

Still, no matter how imperfect these studies are, when you put them all together and examine them closely, the message is clear: While post-birth development may well play a supporting role, the roots of homosexuality, at least in men, appear to be in place by the time a child is born. After spending years sifting through all the available data, British researchers Glenn Wilson and Qazi Rahman come to an even bolder conclusion in their forthcoming book Born Gay: The Psychobiology of Sex Orientation, in which they write: "Sexual orientation is something we are born with and not `acquired' from our social environment."

'Nuff said.

Black Turnout -- Sabato and Smyth

I learned something today. That's always a good thing.

The difference between the black vote counts and turnout numbers cited by Matt Smyth in the Augusta Free Press and by Larry Sabato in the papers cited in my earlier post today is that Smyth is, according to Sabato, citing results from "the traditional sample black precincts that date to Ralph Eisenberg in 1960s which show a lower percentage for GOP candidates; they are highly concentrated and more organizable for Democrats." The higher numbers cited by Sabato come from " exit polls, that supposedly include blacks from suburbs (higher income, slightly more Republican)."

As Larry says, " Both have flaws. Take your pick!"

And, just to confuse things... here's an exit poll from 1997 that puts the black vote for Gilmore at 14% (a number higher than Smyth's 11% and lower than Sabato's 18%).

hmmmm

What's that old saying about lies and statistics?

SurveyUSA Poll Numbers Show Kilgore Ahead; It's not the lead but where it comes from that counts

A survey conducted by SurveyUSA for WSLS-TV in Roanoke and released on Tuesday shows Kilgore leading Kaine by 5% (margin of error 4.2%) (48%-43%) with only 4% undecided. It's not the fact of the lead that matters; it's pretty close to the margin of error. It's the inside numbers that are interesting.

The poll indicates that 30% (vs. 61% for Kaine) of pro-choice voters among 568 likely voters surveyed intend to vote for Jerry Kilgore. At the same time, 71% of pro-life voters (vs. 20% for Kaine) intend to vote for Kilgore. (Potts is irrelevant in this poll that has him at 3% overall.) But the main two guys split evenly the voters who say that they are "not sure" whether they are pro-choice or pro-life.

What does this say? Here's how I see it.

Pro-life voters are rarely unsure and almost always single issue voters. For them the abortion issue is what I call a "torque issue," meaning an issue with an emotional driver that gets people to the polls. The pro-life voter's belief is visceral, usually tied to strong religious beliefs, and emotional.

Pro-choice voters are unlikely to be single issue voters and often see the abortion issue as a complex, multi-faceted issue on which they have conflicting views depending on the circumstance (e.g., late term abortion, abortion as "birth control", etc). This makes them "unsure" how others would define them or how to categorize themselves. Typically, the pro-choice voter's belief is intellectual, not tied to religious beliefs, and dispassionate. Choice alone does not carry sufficient torque to drive them to the polls, unless there is a real threat to Roe v. Wade, as there was perceived to be during the Wilder campaign following the opinion in the Webster case.

And, what does this mean? If abortion continues to be a key issue in this campaign, and the President does not nominate a "nut job" to the Supreme Court, the issue creates an advantage for Kilgore because it drives turnout for him but not Kaine.

There is another set of numbers in this poll that I find surprising -- the numbers on race. The poll reports that 54% of White voters, 60% of Hispanic voters, and 55% of "other" voters support Kilgore.

The only racial group in which Kaine leads is among African Americans where the split is 72% to 17% with 7% undecided. That sounds like good news. But, maybe not???

According to political pundit and distinguished professor Larry Sabato, a Democrat needs 40% of the white vote and a solid black turnout (high turnout, high percentage) to win the Governor's mansion.

The apex of black turnout in percentages was Wilder's election in 1989 (17%). In 1993, black turnout was 14%/Allen got 18-19%; in 1997 it was 12.5%/Gilmore got 18-19%; and in 2001 it was 15%/Earley got 10% (vs. 20% when he ran for AG). Gilmore got 62% of the white vote in 1997. Earley only got 50% to Warner's 44%. Warner won with 44% of the white vote and outstanding black turnout (15%/90%).

If Sabato's numbers are right (and one other political analyst has been quoted as saying that Allen and Gilmore got 11% of the black vote), Kaine has two issues to confront ... he needs to move up from less than 40% of the white vote, and, at the same time, he needs to drive turnout among black voters (to Warner levels, 15%) and reduce the percentage of black voters who intend to vote for Kilgore (from 17% in this poll to 10% or below).

An interesting challenge to say the least.

Now, it may not matter (because Hispanics are still such a small fraction of likely voters; 3% in this poll)... or the sample size may be too small (total sample was less than 600; how many were actually Hispanic) ... but how the heck does one account for the fact that the poll shows Kilgore with 60% of the Hispanic vote?

Could it be that most of the likely voters are Puerto Rican, who as US citizens, may not care much about immigration issues or they are Cubans who mostly vote Republican or Catholic voters tuned into the election because of the emphasis on social issues... but whatever accounts for the disparity (and the poll shows NO undecided Hispanics), it will be interesting to see if Kilgore's support fades at all after this week's all out assault on immigrants.

A more critical issue for Kaine is that the "gender gap" in this poll is only 3% in his favor among women (within the margin of error; it could be as low as -1.2% or as high as 7.2%) and 14% the wrong way among men. This is a problem for Kaine who needs to replicate Warner's performance; women were 52% of the electorate and he ran 14% ahead of Earley. And, the problem is magnified by the much larger disparity in support among men, Kilgore leads by 14%; in 2001 Warner only trailed Earley among men by 5%.

What can Kaine do about this? Again, he faces a conflict. He needs to talk more about issues women care about (like the pre-school initiative he's advocating this week), and continue to try to find ways to appeal to men (although the pugilistic style he's adopted may help with men, it may turn women off).

Another conundrum.

But, the good news is that it's August and the election's still close. That wasn't the case in 1993 or 1997 where the deal was sealed before Labor Day.

There are still political waves out there on the horizon. Some may turn to soup before they reach the gubernatorial surfers (like that tax thing they both tried to surf). Or, one may build to the perfect glassy perfection of a wave that one of these political surfers will catch and ride to shore, scoring all the points needed to win.

I, for one, will be standing on the shore watching and hoping that the guy who catches the great wave, works it well and bursts out of the tube on election day with a big smile on his face is Kaine.

Resource: You can find Sabato's numbers in two issues of The Virginia News Letter published by the Cooper Center at UVA. A Democratic Revival, Vol. 78 No. 2, Feb. 2002 and A Century in the Making, Vol. 74 No. 1, Feb. 1998. Find them online at www.coopercenter.org.

Virginia Set to Ban All Unmarried Relationships

If the proponents of the current marriage amendment proposal have their way, by 2006 Virginia will amend its constitution to ban any legal recognition of any unmarried relationship (gay or straight) that purports to "approximate" the "effects," "significance," design" or "benefits of marriage."

What you say? "I support a ban on "same sex" marriage, but what's all this other stuff?"

The proponents of the so-called "marriage amendment" now wending its way through the legislature to a vote by the people keep talking about it as if it doesn't do anything more than define marriage as between a man and a woman.

Nothing could be further from the truth.

I respect the right of individuals to believe that civil and religious marriage should be reserved to couples made up of one man and one woman (though I personally believe strongly that civil marriage should be available without discrimination).

I also accept that some individuals believe that we should amend the state and/or federal constitution to accomplish this objective (though I believe that this is dangerous, unnecessary, immoral and discriminatory).

But, I respectfully suggest that many who currently are lending their support to the proposal now before the Virginia legislature have not read it.

Here's what it says:

ARTICLE I
BILL OF RIGHTS
Section 15-A. Marriage.
That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

As now proposed, the amendment goes well beyond reserving civil marriage to one man and one woman.

It prohibits the state and its localities from providing any legal recognition to any relationship between "unmarried individuals" that "approximates the design, qualities, significance or effects of marriage."

No "unions", no "partnerships," no "other legal status."

If adopted, this amendment would likely be interpreted to render unconstitutional:

1) the bill just passed this past Session that allows small businesses and insurers to agree on health insurance plans that cover members of households other than spouses, kids, including domestic partners (in fact, I believe that at least one of the conference committee members who rewrote the legislation after it passed the House and Senate was intent on forcing this outcome);

2) enforcement of the domestic violence laws where violence is between two unmarried people (gay or straight) who are living in the same household (perhaps with children common to both or belonging to one)(this is already being argued in Ohio which has language similar to the first two sentences of the current Virginia proposal);

3) loans/mortgages to two unmarried people wishing to buy a house together; and/or

4) access to the courts by parties to an unmarried relationship who wish to enforce a guardianship agreement, will, or other legal agreement purporting to approximate the "effect of marriage" through a contractual agreement.

Because we would be amending the constitution, we would be divesting the legislature (elected by the people) of the ultimate authority to define what it means to "approximate the effects of marriage" and giving the job to the courts.

So, the right question for candidates running this year is NOT "do you support a marriage amendment that defines marriage as between a man and a woman?"

That's not the issue now before Virginians or the 2006 General Assembly.

The proper question is "do you support the current proposal to amend Virginia's constitution to outlaw any legal recognition of relationships between unmarried couples whether gay or straight?"

If the answer is yes, these follow up questions are appropriate:

"why do you support amending the Virginia constitution to define marriage when there has been no legal challenge to the Virginia law prohibiting same sex marriage since it was first adopted in 1975, thirty years ago?"

"why do you think that the state should ban all recognition of unmarried relationships?

If the answer is no, the proper follow up question is:

"will you vote against this proposed amendment in the 2006 General Assembly session?" If the same exact language isn't passed again this year, the proposal cannot be put to the voters before 2008.

Isn't it "conservative" to require proponents of an amendment to the Virginia constitution to provide credible evidence that there is a compelling need to change the status quo, particularly, where, as here, the current proposal has potential unforeseen and, almost certainly, unwelcome consequences?

Wasn't that what opponents of the Virginia Equal Rights Amendment kept arguing when they wailed about forced co-ed micturating?

If the so-called "marriage" amendment passes as now written, you can forget trying to forge any kind of legal relationship with your "significant other." Heck, if you're trying to approximate the benefit or effect of marriage by leasing an apartment together, you may not even be able to enforce the lease against your partner if he or she moves out.

Is this what Virginians want? I don't think even a majority of those who want to ban same sex marriage want to go this far.

At a minimum, it's time to rethink the language of the proposed amendment.

More on John Roberts

There's an interesting story on the wires today about John Roberts' role in helping to "moot court" or coach the lawyers who argued the Romer case out of Colorado in which the US Supreme Court ruled unconstitutional a Colorado constitutional amendment designed, among other things" to keep the state or any locality from adopting a statute or regulation banning discrimination based on a person's "homosexual, lesbian or bisexual orientation."

Hailed as a major victory for the gay rights movement, the decision in the Romer case was 6-3 with Roberts' mentor Rehnquist joining Thomas and Scalia in dissent. The dissent written by Scalia described the constitutional amendment as "a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws."

The majority determined that the challenged amendment "classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws."

According to the news story, "the lawyer who asked for Roberts' help on the case, Walter A. Smith Jr., then head of the pro bono department at Hogan & Hartson, said Roberts didn't hesitate. "He said, 'Let's do it.' And it's illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job."

Having spent time with Walter Smith in my years at Hogan & Hartson (although I didn't overlap with Roberts), I can say that he's definitely no conservative. And, his description of Roberts as open and fair-minded mirrors the assessment of another well known liberal at the firm, Jack Keeney, who just finished his term as president of the DC Bar. Jack was on TV recently saying that folks criticizing Roberts were criticizing a "caricature" of the man he knew. Jack endorsed Roberts with enthusiasm.

So, it goes back to how do you know who a person is? From personal contact and conversation over time or from what you read in their briefs, memos or, worse yet, from what their wife says or does?

I, for one, intend to put my faith in the assessments of people I respect who know John Roberts far better than I ever will.

"Vanity" Plate?

Seen on a Sons of Confederate Veterans license plate today:

CNFDUP

Confederate Dupe?

Reliving Past Lives

One of the great things that I got to do before I was a "recovering lawyer" was argue a case in the United States Supreme Court. It was just over 15 years ago, and, frankly, it had receded to a warm but distinctly hazy memory.

And, then today I discover that my argument is now available in a Podcast for all to download.

Of course, the reality is that few of those who download the Podcast are likely to hear me while they're fast forwarding to get to the argument by the lawyer everyone wants to know more about today, John Roberts.

Roberts and I happened to be arguing the same side of a case dealing with a very interesting (to lawyers) and intellectually challenging, albeit arcane, question of statutory interpretation back then. The outcome we wanted was for the Supremes to agree that Virginia hospitals could not sue the state in federal court demanding higher Medicaid reimbursement rates. We lost 5-4.

Here's what one commentator says in an analysis of "Roberts problematic record on disability rights" about the ominous implications of Roberts' brief and argument that day:

"In Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), Roberts filed a brief in the Supreme Court on behalf of the United States, as deputy Solicitor General, arguing that Medicaid rights were not privately enforceable. Fortunately, the Supreme Court rejected this argument, and the Wilder decision has been the basis for most cases in which courts have permitted Medicaid recipients to enforce their rights. This victory has been severely eroded by the Supreme Court’s subsequent ruling in Gonzaga, in which Roberts argued to limit private enforcement of statutes."

Since I was lead counsel and he was just counsel for a friend of the court, I guess that must mean I have a "problematic record on disability rights," too, even though the case had nothing to do directly with the rights of the disabled.

This seems a bit at odds with my self-perception, however. I have a brother who is an autistic savant, and I've been advocating for disability rights since I was a teenager. My mother was a leader in Virginia's right to education movement back in the late 60's and early 70's. I know that she'd be surprised to learn that I have a "problematic record on disability rights."

But, I guess you have to accept that, as a lawyer, the briefs you write and the cases you argue on behalf of clients should be read by the public to define who you are and what you believe. Even where the implications of those cases beyond their specific facts are ill-defined at the time or completely unpredictable.

After all, you could always have chosen different clients or a different career path as a public servant or simply refused to argue the case assigned.

Couldn't you?