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I mentioned to a patient on Friday last that I had run into Gov. Brown on Wednesday night (as I posted on the 4th). He was in to see me again on Monday and he brought a clipping from Sunday's local paper, the Press Democrat, which read as follows:

"JERRY BROWN, a longtime admirer of the lower Russian River, stopped in Forestville on the Fourth.
A local gay man spotted him, approached and thanked the governor for fighting Proposition 8.
“You're welcome,” Brown replied with a smile."


Imagine my surprise. To my knowledge, there were only 4 people who had witnessed the interchange; myself, the governor, his companion and their driver. I did mention it to a group of my friends and I did post about it here. Somehow, I doubt the local paper is mining my Livejournal for content. I'm not sure who told the PD, but it pleases me that they did.
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This is taken verbatim from the Huffington Post

I just walked out of oral arguments at the U.S. Supreme Court and waded through a huge crowd of supporters shouting, "Equal rights under the law!" It was a whirlwind hearing, and all three lawyers faced tough questions from the justices. Here's my initial take on the justices' questions and what they might mean.

Standing

The biggest takeaway is that there was a serious focus on issues of standing and jurisdiction during today's oral arguments. Charles Cooper, representing the proponents of California's Prop 8, got in a few words before Chief Justice John Roberts steered him toward addressing whether the proponents have standing to defend Prop 8. The chief justice did the same to Prop 8 opponents Ted Olson (who said, gamely, "I was trying to avoid that") and Solicitor General Donald Verrilli Jr.

There was substantial concern among the justices regarding how to avoid a situation where an initiative such as Prop 8 could be nullified by an administration that does not agree with the law. Cooper seemed to open the door to a very new, broad right to standing: When asked by Justice Elena Kagan if a state could assign any citizen to defend its laws, Cooper responded, "It very well might."

Olson repeatedly assured the court that a state could appoint an "officer" that would defend the law, specifically pointing to the fact that that individual would understand and be obliged to keep in mind the financial burden faced by the state. Justice Antonin Scalia was skeptical, asking whether that person would be appointed by the same administration that chose not to defend the law, but Olson reassured him that many administrations have done so in the past, even for laws that they did not agree with.

Olson, picking up on a line of thought that Chief Justice Roberts had presented to Cooper, argued that adopting the Prop 8 proponents' argument on standing would essentially allow states to dictate Article III standing; that is, they could say that any individual could represent the interests of the state even without a personalized injury. This would basically negate the whole point of Article III standing, which establishes a certain set of norms and guidelines under which cases can be brought to the federal courts.

Several times Justice Sonia Sotomayor stepped in and said something to the effect of, "Here's what all these questions are getting at, and here's the fundamental issue you need to address." On the standing question Sotomayor asked Olson point-blank who ensures that a law is defended if a state's executive decides that it won't do so. Olson stuck to his guns, saying that the proponents of a ballot measure cannot possibly fully understand a state's interests in a specific law, and that there would instead need to be some kind of appointment process where an administration that had chosen not to defend a law would delegate that task to a specific governmental individual.

During his time for argument, Solicitor General Verrilli underscored the fact that the United States had not addressed the issue of standing in its briefs and said that the federal government had "no formal position" on the issue. Nonetheless, he said that the government leans towards the plaintiffs' arguments and believes that the proponents of Prop 8 lack the particularized injury to qualify for Article III standing.

Merits: The Arguments for Prop 8

Cooper had two central points. In the first he put significant emphasis on the fact that there is an "earnest debate" over marriage equality happening across the country. Early on, Cooper asked rhetorically whether the Supreme Court should stop that debate, saying that it could only do so it if found that Prop 8 was entirely based on animus.

Cooper's second point was his usual "responsible procreation" argument, of course. Same-sex couples, Cooper contends, are not "similarly situated" (a central component to equal protection consideration) to opposite-sex couples, because only opposite-sex couples can procreate naturally. Justice Kagan pointed out that Cooper had made an argument for not including same-sex couples in the institution of marriage (because marriages between same-sex couples do not explicitly further the state's interest in responsible procreation) but asked whether he could justify a law that excludes them from the institution.

Kagan told Cooper that she couldn't find in his legal briefs any specific harms that would result from allowing same-sex couples to marry. Cooper said that this notion of specific harms is not the central legal issue in the case, circling back to his earlier argument that restricting marriage to opposite-sex couples is justifiable because it furthers a state's interest in responsible procreation.

Justice Scalia addressed gay adoption, saying that allowing marriage equality would require allowing same-sex couples to adopt. Because some states don't allow that, he said, could Cooper address any harms arising from gay adoption? If so, he implied, Prop 8 could be rationally defended. Cooper demurred. Justice Stephen Breyer then jumped in and zeroed in on California, asking how allowing marriage for gay couples in a state with same-sex adoption would affect straight couples in any way that allowing sterile couples to marry would. Justice Kagan picked up on this, asking whether a restriction on marriage based on age -- say, a prohibition on marriage for couples over 55 -- would be OK. Cooper said that marriage would still channel such couples' sexual activity in such a way that would encourage fidelity and responsible procreation. In response to this, Justice Ruth Bader Ginsberg pointed out that the Supreme Court has recognized a right to marry even for prison inmates with no possibility of procreating.

As always, Justice Kennedy is almost certainly going to be the swing vote; none of the other conservative justices appeared anywhere close to a ruling that would declare Prop 8 unconstitutional. Kennedy's questions on the merits were pointed and probed both sides. At one point Kennedy pointed out that the sociological evidence about families headed by same-sex couples and whether there are any effects on children is new and not conclusive, but in the very same sentence he mentioned that the case involves a specific legal injury suffered by the almost 40,000 California children living with same-sex parents.

Merits: The Arguments Against Prop 8

Addressing the merits of the case and arguing against Prop 8's constitutionality, Olson repeatedly told the court that marriage is a personal individual liberty and a fundamental right, and that procreation is not a part of that right. Prop 8, he said, excludes gay and lesbian Californians from that right.

Chief Justice Roberts jumped in early, throwing cold water on the idea that Prop 8 "excludes" gays from marriage, saying instead that marriage developed historically for reasons that gay unions do not forward (i.e., procreation).

Roberts and Olson got into a bit of a weedy debate about whether the Prop 8 case would be different if the law had been passed before the California Supreme Court extended marriage rights to same-sex couples, with Roberts saying that if the timing had been different, Olson wouldn't be arguing that Prop 8 excluded gays and lesbians from marriage. Olson reiterated his point that marriage is a fundamental right and said that while the argument in that case would be subtly different, it would still rely on the central question of whether the fundamental right to marry can be withheld.

Justice Scalia asked Olson, "When did it become unconstitutional to exclude gays from marriage?" Olson gamely responded, "When did it become unconstitutional to exclude interracial couples from marriage?" Scalia testily pressed Olson for a specific date, which Olson refused to provide.

Justice Kennedy in particular seemed very skeptical of the Ninth Circuit Court of Appeals' narrow argument striking down Prop 8 specifically in light of California's unique history of marriage equality. He characterized that decision as one that said that a state could only go all the way to full marriage equality as opposed to only going part way and providing some rights.

Once again, Sotomayor stepped in and steered the arguments back to the central question. If marriage equality is a right, she asked Olson, would any state restrictions on marriage, such as prohibitions on incestuous and plural marriages, survive? Olson had a quick answer: Polygamy is based on conduct, while sexual orientation is based on identity. Sotomayor also asked whether there is any way that the Supreme Court could limit its ruling to California. Olson said that such a ruling would be one in which the proponents were found not to have standing.

Speaking on behalf of the federal government, Solicitor General Verrilli underscored the administration's belief that Prop 8 should be considered under heightened scrutiny, a more searching form of judicial review. California's laws, he argued, blow up the proponents' claims that the state has an interest in reserving marriage for opposite-sex couples, because California affords full rights to same-sex couples.

When pressed by the justices on whether he was calling for a nationwide right to marriage equality (and when asked how a ruling could be limited just to the eight states that currently provide civil unions or domestic partnerships), Verrilli said that the administration wants to keep the door open for different cases to arise from different states.

Significantly, there was very little discussion of the proper level of scrutiny to apply to laws that classify on the basis of sexual orientation. This could mean that the justices think that the case will be decided on the basis of standing, or, more probably, that they believe that the scrutiny discussion will be fully argued tomorrow during the consideration of the constitutionality of Section 3 of the Defense of Marriage Act in the United States v. Windsor case.
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So I read this morning that amicus curiae briefs have been filed with SCOTUS, urging the overturn of section 3 of DOMA. The first was signed on to by 300 large American companies, like Apple, Google and Nike and by 15 different cities plus two counties. Boston, Baltimore, Bangor, Seattle, SF, NY and LA were among them along with Healdsburg, just 10 minutes up the road from me. There is a second brief urging DOMA's demise from 15 different states as well; it was filed by Mass and NY, with California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont and Washington, as well as the District of Columbia.

Meanwhile, Massachusetts also filed an amicus brief urging the overturn of Prop 8, which DC and 12 other states have signed onto.

I like it!
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Likely almost anyone reading this knows my husband and I are one of the 18,000+ couples that got married while it was legal here in California. Just as likely, y'all know just how emotionally devastating I found the Prop 8 vote in 2008.

This coming Saturday marks two years since Judge Vaughn Walker pronounced Prop 8 unconstitutional under the US Constitution. The 9th circuit of the Federal Court of Appeals has upheld Walker not once, but twice. The denial by the 9th circuit to hear the case on appeal en banc left the pro Prop 8 forces only one last option - an appeal to the US Supreme Court. That request finally came late this morning.

We should know by early October, whether SCOTUS decides to take the case or not. If not, Walker's decision stands. If they take it, it will probably be June of 2013 when a final ruling is rendered.



I'm actually hoping they don't take the appeal.

There will already be a large numbers of DOMA related cases landing on SCOTUS' doorstep this fall. In my mind, the DOMA appeals are more important for our community, as DOMA's overturn gets us recognition at the federal level. That'll mean Social Security survivor benefits, joint income tax, extension of spousal health insurance benefits, the right of surviving spouses to inherit a joint estate without inheritance tax levies, just to name a scant few. Today, yet another federal court, this one in Connecticut, found the section of DOMA that defines marriage unconstitutional. It's the 6th time that has happened

Given the bloody gridlock that is DC today, I believe it's the judicial branch that gives our community the best shot at assuring our civil rights. A decision on DOMA could easily be 6-3, if not 7-2 in our favor.
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Vaughn Walker, the federal judge who's hearing the Prop 8 trial here in Calif, is gay. So says the SF Chronicle in an article that appeared yesterday.

According to the paper, it was not an outting per se. While the judge's orientation was not common knowledge, he was already out. That it is now common knowledge I think is a good thing; at least now, should he decide against prop 8's legality, the pro-8 forces can't accuse him of a hidden agenda.

My husband, an attorney, doesn't think this one will ultimately wind up in front of the US Supreme Court (SCOTUS). I have to admit, he's the only one I've heard say this. In his mind, all this hinges on is animus; was the crux of prop 8 based on prejudice against a minority group? If the judicial answer is yes, then there is clear legal president to overturn the proposition. He thinks this will stand in the 9th circuit Court of Appeals, and given there is already legal president, my husband thinks SCOTUS might not accept hearing the case.

That's how my husband sees it.

I'm still sitting in semi-disbelief that Vaughn Walker is family. Despite the fact that he argued against Gay Olympics right to use the word Olympics (hence they are now the Gay Games), I think it's a good thing.
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........yes, that Jerry Brown, as in our State Attorney General.

The Courage Campaign had 40 minute statewide conference call where he talked about the Supreme Court's hearing this month on Prop 8's constitutionality. It was an interesting discussion. I'm grateful this man is on our side. If I heard him correctly, he doubts the marriages that happened will be nullified. He was less encouraging as to what the Supreme Court will do about prop 8, but as they say, the fat lady hasn't sung yet. He believes, that Vermont and New Jersey are poised to approved same-gender marriage, and likely New York will be soon to follow. After that, at some point DOMA will have to be challenged at the level of the Supreme Court, though personally I hope that will not happens with the US Supreme Court as it now stands. With Scalia, Thomas, Alito, Kennedy and Roberts, I have grave reservations how well we might fare. (Who knew we'd mourn the day Sandra Day O'Connor left the court?)

Brown is disturbed by what it would mean if they allow Prop. 8 to stand, in terms of how the initiative process could be used next to abridge rights for anyone, which is where I have been for the last month. Certainly, that was the sort of argument Ken Starr proposed. We must be very, very afraid of that man and his ilk.

The Courage Compaign has announced it will start a grassroots statewide 'dialog' starting the Saturday after the court's decision is announced, beginning in Fresno. The goal is to interact with the larger non-gay community on what marriage means to us and our families, and what it means to the community as a whole. I think they're right in this. We need to be talking not with the folks in the Bay Area and the LA basin. For most folks there, we're not 'those people' in the abstract, we're real flesh and blood. Had it been left to those areas, hands down Prop 8 would have failed. Marin went 75% against prop 8. It was 66% against here in Sonoma. It's the Central Valley, and the Sierra, the Central Coast and the Inland Empire where we're the 'other', the feared unknown. That's where we need to be seen and heard, where people need to experience us for who we are.
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I would have preferred to have been in SF today, watching the huge monitor set up near the Supreme Court Building. Not that that would affect the outcome mind you, but it might have given me some better sense of what direction the justices are headed. Last year, when they had their first session I found hope in listening to some of their pointed questions. That they found prop 22 unconstitutional last year was a surprise, though far from a complete one for me.

Being there however was not in the cards, nor was being able to watch it on TV at home. The reality of life, medical practice, and patient needs came first. I don't want to say that I deal every day in life and death issues, but in reality there are times that I do.

I have an elder in the hospital now, a patient who has what I heard called during my residency, 'the dwindles'. There are multiple medical problems in addition to advancing old age. None of these things in and of themselves would be life-threatening, but the combination of all of them have taken their toll. The patient's capacities are shutting down a bit at a time and there's a diminishing return to my interventions. Treat one problem and cause another. Medications which has been treating one condition or another well, now are making her life more difficult rather than better, from side effects not originally experienced, but which have cropped up over time. I'm seeing clearly through her care that just because I can do something, does not necessarily mean I should.

The patient's daughter is the decision-maker, with durable power of attorney for healthcare; sitting with her, discussing the pros and cons of each and every intervention is both valuable and at the same time wearing. End-of-life issues, particularly when there is no malignancy in the picture, can be difficult to recognize. When you are entering that endgame? When is hospice and comfort care the most appropriate? How do you get the patient, their family, and yourself all on the same page at the same time?

I've noted over the last several years that it's sometimes easier to recognize when interventions are not appropriate, if you're dealing with patients who are new to you, as opposed to folks you've known for a long time and are likely emotionally invested in. Numerous times, I've admitted patients for my call group colleagues, who appeared to be appropriate for hospice, and with whom the topic had not yet been broached. The discussion of hospice is rarely an easy one, often quite time-consuming, and very difficult to work in to a standard 15 minute office appointment. It's easier to get lost in the minutia, rather than step back to look at the bigger picture; it's easier to ask, "how do I...?", than "should I?" Further, thanks to countertransference, it's easy not even to recognize when the discussion needs to take place.

So now, we wait. Over the next few weeks the family and I will see just what direction this frail elder is headed in.

And within the next few months, we shall see just where our Supreme Court is headed.

Within the last several days, another issue with regard to prop eight has really begun to gnaw at me. It's a larger issue, going beyond my marriage and my community, not that those things are unimportant. They're crucial to me. However, it's really hitting home to me right now, that if my civil right as a gay man to be able to marry, something that our court found as constitutional a year ago, can be amended away by a simple majority vote, then who among us is safe?

Last year, the California Supreme Court referred to lesbians and gay men as a 'suspect class', a presumptively unconstitutional distinction made between individuals on the basis of race, national origin, alienage, or religious affiliation, in a statute, ordinance, regulation, or policy. In Loving vs. Virgina the US Supreme Court struck down the law because Virginia failed to prove a compelling State Interest in preventing interracial marriages. Our state Supreme Court ruled last year there was no compelling state interest in preventing same-gender marriages. If a simple majority vote can undo that, what social whim is next?

So now, we wait.
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Tomorrow the California Supreme Court will hear oral arguments on the constitutionality of Prop. 8. They will also rule on the legality of my marriage. (along with the 18K other same gender marriages that happened while it was legal here.)

I have this sinking feeling in the pit of my stomach, a sense of foreboding which I'm praying is just a bit of indigestion from the quesadilla I had at lunch over at the hospital cafeteria. The notion that they could nullify my marriage is something I'm having a very hard time with.

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