The Bush administration's judicial nominations
James Nimmo
EXCERPT: The Supreme Court and other federal courts exercise tremendous power in
deciding cases on such issues as the right to privacy, reproductive
freedom, religious liberty, environmental protection, consumer and worker
safety and health, and the civil rights of women, minorities, people with
disabilities, older individuals, gay and lesbian Americans, indeed, all
Americans. The Bush administration's judicial nominations could result in
a federal judiciary hostile to these concerns and dominated by a states'
rights approach to the Constitution that had been rejected on a
bipartisan basis for half a century.
=======================================================
January 6, 2003
From: Ralph G. Neas
People for the American Way
Re: The Approaching Armageddon on Judicial Nominations
Introduction: The Compelling Need for a National Debate
The next 12 to 24 months - beginning with the Senate's return to
Washington this week and President Bush's expected nominations to the
federal judiciary - could determine the law of the land and the shape of
our government for the next several decades. The judicial choices
President Bush makes, and the response of the U.S. Senate, will have an
extraordinary impact on the lives and liberties of all Americans, their
children and their grandchildren. Consider:
* By 2004, all 13 federal circuit courts of appeal could well be
controlled by Republican-appointed judges. And seven of the nine current
Supreme Court justices were appointed by Republican presidents. Rarely
if ever in our history has the entire federal judiciary been dominated by
the appointees of one political party. If the judges appointed over the
next two years are ultraconservative ideologues rather than more moderate
or conservative judges, the long-term consequences will be devastating.
*
* It is expected that President Bush will send the Senate a batch of
judicial nominations as early as January 7, the first day that the Senate
is back in session. If the rhetoric from the White House and its allies
is any indication, the President will ensure a series of contentious
confirmation battles by pushing appellate court nominees whose judicial
philosophies are in sync with the most far right members of the Supreme
Court, Justices Antonin Scalia and Clarence Thomas. The President could
choose a different course of action, one grounded in genuine bipartisan
consultation, but for the past two years the White House has defiantly
rejected that option.
*
* It has been more than eight years since the last Supreme Court vacancy,
the longest interval between vacancies in 180 years. Indeed, over the
past half century, there has been on the average one Supreme Court
nomination every two years. It is very likely that one or two vacancies
- perhaps as early as this summer - will give President Bush the chance
to put his stamp on the Supreme Court for decades to come. And it is
possible that over the next several years, we could have multiple
vacancies, comparable to the four vacancies between 1969 and 1972 and the
five vacancies between 1987 and 1994.
*
* A Supreme Court with a Scalia-Thomas majority could overturn more than
100 precedents and turn back the clock decades on civil and voting
rights, privacy and reproductive choice, religious liberty, environmental
protection, consumer and worker safety, and more. Preventing ideologues
who want to return our Constitution and country to the "states' rights"
judicial era from dominating our highest court will be a monumental
struggle over the nation's future.
January 6, 2003
From: Ralph G. Neas
People for the American Way
Re: The Approaching Armageddon on Judicial Nominations
Introduction: The Compelling Need for a National Debate
The next 12 to 24 months - beginning with the Senate's return to
Washington this week and President Bush's expected nominations to the
federal judiciary - could determine the law of the land and the shape of
our government for the next several decades. The judicial choices
President Bush makes, and the response of the U.S. Senate, will have an
extraordinary impact on the lives and liberties of all Americans, their
children and their grandchildren. Consider:
* By 2004, all 13 federal circuit courts of appeal could well be
controlled by Republican-appointed judges. And seven of the nine current
Supreme Court justices were appointed by Republican presidents. Rarely
if ever in our history has the entire federal judiciary been dominated by
the appointees of one political party. If the judges appointed over the
next two years are ultraconservative ideologues rather than more moderate
or conservative judges, the long-term consequences will be devastating.
*
* It is expected that President Bush will send the Senate a batch of
judicial nominations as early as January 7, the first day that the Senate
is back in session. If the rhetoric from the White House and its allies
is any indication, the President will ensure a series of contentious
confirmation battles by pushing appellate court nominees whose judicial
philosophies are in sync with the most far right members of the Supreme
Court, Justices Antonin Scalia and Clarence Thomas. The President could
choose a different course of action, one grounded in genuine bipartisan
consultation, but for the past two years the White House has defiantly
rejected that option.
*
* It has been more than eight years since the last Supreme Court vacancy,
the longest interval between vacancies in 180 years. Indeed, over the
past half century, there has been on the average one Supreme Court
nomination every two years. It is very likely that one or two vacancies
- perhaps as early as this summer - will give President Bush the chance
to put his stamp on the Supreme Court for decades to come. And it is
possible that over the next several years, we could have multiple
vacancies, comparable to the four vacancies between 1969 and 1972 and the
five vacancies between 1987 and 1994.
*
* A Supreme Court with a Scalia-Thomas majority could overturn more than
100 precedents and turn back the clock decades on civil and voting
rights, privacy and reproductive choice, religious liberty, environmental
protection, consumer and worker safety, and more. Preventing ideologues
who want to return our Constitution and country to the "states' rights"
judicial era from dominating our highest court will be a monumental
struggle over the nation's future.
There is an urgent need for a vigorous national debate on the
Bush-Scalia-Thomas judicial philosophy and the impact the President's
judicial nominations could have on the daily lives of every American.
What would it mean to privacy rights, civil rights, reproductive choice,
clean air and water, and religious liberty if President Bush fulfills his
promise to appoint judges like Clarence Thomas and Antonin Scalia?
Americans have a right to know what is at stake before they wake up one
morning in 2004 or in 2005 and discover that overnight they have lost
fundamental rights, liberties, and protections that they thought were
theirs forever.
It should be made clear at the outset of this year's debate that
discussing the impact of a states' rights judicial philosophy on the
enforcement of civil rights protections is not the equivalent of accusing
any individuals of racism or other animus. The issue before the Senate
is not what is any individual's heart, but rather the practical impact
of a legal and judicial philosophy that would limit the federal
government's ability to enforce civil rights laws. Whether or not judges
embrace a judicial philosophy that would restrict civil rights
enforcement is an urgent and entirely legitimate line of inquiry, and it
should not be derailed by false charges that raising the question amounts
to "playing the race card."
The Supreme Court: Looking Ahead to the Past
President Bush is likely to have the opportunity to appoint more than one
Supreme Court justice between now and the end of 2004. If Chief Justice
William Rehnquist retires this year, and President Bush nominates a
sitting justice for that position , there could be multiple confirmation
hearings this summer. If newly appointed justices are adherents of the
judicial philosophies represented by President Bush's favorite justices,
Antonin Scalia and Clarence Thomas, the result would be not only the
reversal of more than half a century of legal and social justice
accomplishments, but also a return to a situation America faced in the
first third of the 20th Century, when progressive legislation adopted by
Congress and signed by the President was repeatedly rejected on
constitutional grounds by the Supreme Court. A Court dominated by the
states' rights judicial philosophy could prevent the federal government
from taking action on a range of national issues, regardless of who is
elected to the White House or Congress.
The Supreme Court and other federal courts exercise tremendous power in
deciding cases on such issues as the right to privacy, reproductive
freedom, religious liberty, environmental protection, consumer and worker
safety and health, and the civil rights of women, minorities, people with
disabilities, older individuals, gay and lesbian Americans, indeed, all
Americans. The Bush administration's judicial nominations could result in
a federal judiciary hostile to these concerns and dominated by a states'
rights approach to the Constitution that had been rejected on a
bipartisan basis for half a century.
Because most cases before the Supreme Court that raise fundamental
constitutional questions are now decided by slim majorities, more than
100 Supreme Court precedents could be overturned with just one or two
more appointments of individuals who share the judicial philosophies of
Justices Antonin Scalia and Clarence Thomas. Beginning in 1995, a narrow
5-4 Supreme Court majority began a series of rulings that have restricted
the power of Congress to protect citizens whose rights have been abused
by state governments and others. Justices Scalia and Thomas embrace an
even more radical states' rights judicial philosophy and have advocated
overturning other key precedents that protect civil rights and liberties.
A Scalia-Thomas majority on the Supreme Court could, among other things:
* gut the Voting Rights Act and abolish affirmative action and other
remedies that undo the effects of past and present discrimination;
* eliminate a woman's constitutional right to reproductive freedom and
privacy;
* dismantle vital environmental protections for clean water and clean
air;
* tear down the wall separating church and state.
The result would be a dramatic rollback in decades of legal and social
justice gains, and a return to a constitutional framework in which
states' rights and property rights were predominant. Ironically, this
could occur even as the nation decisively rejected Trent Lott's embrace
of Strom Thurmond's earlier segregationist political views, which were
the animating force behind the states' rights movement in opposition to
federal civil rights enforcement.
For more information about the impact of a further rightward shift on the
Supreme Court, see Courting Disaster, published in 2000 by People For the
American Way Foundation, as well as 2001 and 2002 Courting Disaster
updates at www.pfaw.org/pfaw/general/default.aspx?oid=830.
The Circuit Courts of Appeal
The vast majority of federal cases never make it to the Supreme Court,
but are decided by lower federal courts. Every year these courts decide
thousands of cases that affect Americans' daily lives and kind of country
which their children and grandchildren will inherit. In 2001, for
example, the federal appellate courts decided more than 28,000 cases,
many of which were important rulings on privacy, reproductive rights,
environmental protection, and human and civil rights. The United States
Supreme Court, however, issued fewer than 100 decisions. So in more than
99 percent of the cases, the circuit courts have the final say on issues
affecting millions of Americans.
These crucial courts are on the verge of falling under the ideological
domination of the far right wing of American legal thought. As a result
an unprecedented blockade of the circuit courts led by Trent Lott, John
Ashcroft, and Orrin Hatch, 35 percent of President Clinton's appellate
court nominees were blocked from 1995-2000; 45 percent failed to receive
a vote in the Congress during which they were nominated. The impact of
this six-year Republican Senate blockade was to perpetuate a large number
of appeals court vacancies in the hopes that a Republican president could
then fill those vacancies with ultraconservative judicial ideologues.
By preventing President Clinton from filling so many appeals court seats,
Republican senators set up the current situation in which all thirteen
federal circuit courts of appeal could soon be controlled by judges
appointed by one political party. Republican-nominated judges currently
hold a majority on eight of the 13 circuit courts of appeal - three have
a majority of Democratic appointees and two are split. If President Bush
fills all the current vacancies, that number will rise to 11. And by the
end of 2004, Republican-appointed judges could make up a majority on
every one of the 13 circuit courts of appeals (see attached chart).If
President Bush and the Senate fill those vacancies with states' rights
ideologues, the consequences will be enormously damaging to our
constitutional framework and the rights and freedoms it protects.
For more information about the importance of the appellate courts see
President Bush, the Senate and the Federal Judiciary: Unprecedented
Situation Calls for Unprecedented Solution, published by People For the
American Way Foundation and available at
www.pfaw.org/pfaw/general/default.aspx?oid=628.
The Senate's Advise and Consent Role
In our system of checks and balances, the Senate has a co-equal role with
the President in appointing federal judges, since it must provide its
"advice and consent" before any nominee becomes a judge. It is
imperative that the Senate carries out this constitutional role in a
careful, thorough and diligent manner. Judicial nominees - who are
confirmed for lifetime appointments - must be subject to the highest
standard of scrutiny. The decisions of judges last long after they and
the President who appointed them have retired.
No nominee is presumptively entitled to confirmation to a lifetime
appointment to any federal court. Particularly for the courts of
appeals and the Supreme Court, a nominee bears the burden of
demonstrating that he or she meets the appropriate qualifications, which
should include a demonstrated commitment to civil rights and individual
liberties, and a clear respect for Congress' proper constitutional role
in protecting constitutional and civil rights and the health and safety
of all Americans. More than 200 law professors have written to the
Senate, setting forth these qualifications (A copy of the July 13, 2001
letter is available from People For the American Way Foundation).
Each nominee's record must be examined carefully, including unpublished
opinions and other information that may not be readily available. By its
very nature, this sometimes is a time-consuming process but one that is
essential to the Senate's obligation to evaluate the full record of a
nominee. The mere absence of disqualifying evidence in a nominee's
record should not constitute sufficient grounds for confirmation.
The Senate should reject court-packing efforts. Senators should openly
discuss the potential impact of far-right domination of the federal
courts and the importance of opposing nominees whose lifetime
appointments would threaten America's rights and liberties. More
moderate, mainstream nominees who reflect genuine bipartisan consultation
should receive priority in processing.
With the return of the Senate to Republican control, there are serious
concerns that the Senate may simply rubberstamp judicial nominees.
Senate Democrats and moderate Republicans must prevent this from
occurring. Bipartisan rules and practices that help prevent Senate
leaders from railroading nominees through the Senate, such as respecting
the "blue slip" authority of home state senators and ensuring that each
controversial nominee receives a separate hearing, should not be
improperly altered. All these safeguards are especially important with
respect to appellate court vacancies that Republican Senators blocked
from being filled in 1995-2000 for political reasons. When necessary,
senators must be willing to use the filibuster to prevent the lifetime
appointment of particularly damaging nominees. As the New York Times
wrote in a post-election editorial, Senate Democrats "should reach out to
moderate Republican senators and build a mainstream coalition. And when a
judicial nominee is unacceptable, they should not be afraid to mount a
filibuster...."
Senate Handling of President Bush's Nominees under Democratic Control
President Bush and Republican Senate leaders have falsely claimed that
the administration's judicial nominees were not treated fairly during the
time that Democrats held a majority in the Senate. In fact, Bush's
judicial nominees were confirmed at a rapid pace, and were given far
better treatment than President Clinton's nominees received at the hands
of the Republican Senate majority. The Senate's record in 2001-2002
affords no justification for a rush to rubberstamp administration
nominees this year.
The Senate under Democratic control confirmed 100 of President Bush's
judicial nominees in 17 months. The 100 confirmations represent
significantly more than the 71 judges confirmed during the first two
years of the first Bush administration and the 75 confirmed during the
first two years of Republican Senate control during the Clinton
administration. In fact, these 100 confirmations are more than the
number confirmed during any of the Republican controlled Congresses under
President Clinton, when there was an average of only 38 confirmations per
year.
In just one year, the Senate Judiciary Committee under the chairmanship
of Senator Leahy held 21 nomination hearings on 78 nominees-despite the
serious disruptions in Senate business and distractions caused by the
9/11 and anthrax attacks. Before the Senate recessed, 26 hearings were
held on
103 nominees in 2001-2002. During six years of Republican Senate
control, the Judiciary Committee averaged only about 10 hearings per a
year. During the Reagan, Bush, and Clinton presidencies, four nominees on
average were confirmed each month. By contrast, after the first 17
months of Senator Leahy's chairmanship, the average was 6 confirmations
per month.
In 2001-2002, the Senate reversed the rise in judicial vacancies caused
by the previous Republican controlled Senate. As a result of the
serious delays during the years that the Republican Senate majority
controlled the process, the total number of federal court vacancies
increased from 65 in
1995 to 111 in July 2001, an increase of more than 70 percent. Between
July 2001, when Senate Democrats resumed control, and November 21, 2002,
the number of vacancies decreased from 111 to 60. For nearly half of
these vacancies (29), the President has yet to submit a nominee.
Contradicting claims by the Bush administration and its Senate allies,
the pace of appellate court confirmations over the past year and a half
significantly exceeded prior confirmation rates. The Democratic-majority
Senate confirmed 17 of President Bush's appellate court nominations, 11
of which were confirmed during the first year of Democratic control. Two
appeals court nominees were rejected in public votes by the Judiciary
Committee after open hearings. In comparison, Republicans averaged
fewer than eight confirmations per year in the 1990s, and blocked many
nominees from ever having hearings or votes. Because of the delay and
refusal to vote on President Clinton's nominations from 1995 through
2000. the total number of vacancies on the courts of appeals more than
doubled during that period, growing from 16 to 33. Despite new
vacancies, the total number of appellate court vacancies was reduced to
25 during 2001-2002.
Troublesome Bush Administration Nominees
Many of President Bush's 2001-2002 nominees to the appellate courts,
recommended by the Federalist Society and its allies within and outside
the administration, have troubling records and could cause serious damage
to the enforcement of our constitutional rights and liberties, the
ability of the federal government to protect our air and water, and much
more.
This is particularly true of a number of the first group of appellate
court nominees Bush named in May 2001 who are being aggressively pushed
for renomination this year by right-wing senators and advocates. Yet
Newsday suggested that these initial nominees were "peppered with members
of the Federalist Society, heavy on states'-rights rhetoric, and
inhospitable to abortion rights," while a Detroit Free Press editorial
suggested that many "seem to have been selected because of their
ideology, not their judicial qualifications." (For more information on
the philosophy and extraordinary influence of the Federalist Society on
this administration and its judicial selection process, see The
Federalist Society: From Obscurity to Power, published by People For the
American Way Foundation and available at
www.pfaw.org/pfaw/general/default.aspx?oid=653.)
Two nominees, Judges Charles Pickering and Priscilla Owen, were rejected
by the Senate Judiciary Committee in 2002. Although many believe that
the Trent Lott controversy may forestall the renomination of Pickering,
whose initial nomination Lott had championed, serious civil rights and
other concerns remain with respect to many other candidates for
renomination. For example:
* Jeffrey Sutton, an officer in the Federalist Society's Separation of
Powers and Federalism practice group, was nominated to the Sixth Circuit
Court of Appeals. Sutton has been criticized for his extensive efforts as
a lawyer to severely limit federal protections against discrimination and
injury based on disability, race, age, sex, and religion. More than 70
national organizations and over 375 regional, state, and local groups
have opposed his confirmation. Sutton has vigorously advocated going
further even than the current 5-4 Supreme Court majority in restricting
Congress' authority to protect civil rights. As the Wall Street Journal
reported, Sutton was described even by one of his supporters as the
"perfect kind of poster child for what Democrats see as prototypical
George W. Bush judges."
*
* Priscilla Owen, a Federalist Society member and currently a justice on
the Texas Supreme Court, was nominated to the Fifth Circuit Court of
Appeals. Owen has been criticized as one of two judges on the "far right
wing" of the conservative Texas court, further to the right than
President Bush's own appointees to that court when he was governor. In
one decision in which she dissented, Owen called for a very narrow view
of a state law concerning the ability of minors to obtain an abortion
without parental notification. Then-Texas Supreme Court Justice Alberto
Gonzales - who is now chief White House counsel - warned that adopting
the dissenters' view would be an "unconscionable act of judicial
activism." (This was only one of 11 cases in which Gonzales criticized
or joined other justices' criticism of positions taken by Owen.) In
another dissent, Owen effectively sought to rewrite an important state
civil rights law to make it much harder for employees to prove that their
rights were violated. Owen's confirmation was rejected by the Senate
Judiciary Committee on September 5, 2002.
* Carolyn Kuhl, a Federalist Society member and currently a California
state trial court judge, was nominated to the Ninth Circuit Court of
Appeals. She has been severely criticized for her record on civil rights
and abortion. For example, while in the Justice Department under the
Reagan Administration, Kuhl urged the Supreme Court to overturn Roe v.
Wade as "flawed." According to news reports, she also reportedly played a
key role in convincing then-Attorney General William French Smith to
reverse prior policy and support the granting of tax-exempt status to Bob
Jones University despite its racially discriminatory practices. The
Supreme Court, by an 8-1 vote, later rejected the Reagan administration's
position and upheld the Internal Revenue Service's denial of tax exempt
status to Bob Jones University.
* Terrence Boyle, a former staffer to Senator Jesse Helms and a district
court judge in North Carolina, was nominated to the Fourth Circuit Court
of Appeals. A number of civil rights groups have criticized Boyle for his
right-wing judicial activism in civil rights cases. Boyle twice ruled
that congressional redistricting in North Carolina was unconstitutional
because it favored minority voters, but was reversed both times by the
Supreme Court, once in a unanimous ruling. In another case, Boyle
refused to accept a settlement of a Justice Department gender
discrimination claim against a North Carolina agency, even though the
state had agreed to the settlement. He later allowed the state to
withdraw from the settlement, a ruling reversed by the court of appeals.
* Deborah Cook, a justice on the Ohio Supreme Court, was nominated to the
Sixth Circuit Court of Appeals. One of the most frequent dissenters on
her court, Cook's judicial record has prompted strong opposition to her
confirmation from Ohio organizations concerned with protecting
individual, civil, and consumer rights. According to Ohio Citizen
Action, Cook's dissents "reveal a callousness toward the rights of
ordinary citizens which offends any reasonable sense of justice." For
example, in one case in which Cook dissented from a ruling by the Ohio
Supreme Court favorable to a disabled worker, the court majority
criticized her opinion as "confused," "lack[ing] [in] statutory support
for its position," "pure fantasy," and "entirely without merit." In
another case, Cook dissented from a ruling by the court striking down a
state law that would have made it virtually impossible for an employee to
recover damages from an employer caused by an intentional tort committed
by the employer.
* Miguel Estrada, a Federalist Society member and D.C. lawyer, was
nominated to the D.C. Circuit Court of Appeals. His confirmation has been
opposed by the Congressional Hispanic Caucus and the Puerto Rican Legal
Defense and Education Fund, and serious concerns about his nomination
have been raised by many other Latino and civil rights groups. He has
been criticized for extensive efforts to defend so-called anti-loitering
laws, which have been shown to have a disproportionately negative effect
on African-Americans and Latinos; in one case, he argued that the NAACP
did not even have standing to challenge such an ordinance. A former
supervisor in the Solicitor General's office concluded that Estrada
"lacks the judgement" and is "too much of an ideologue to be an appeals
court judge." Estrada's refusal to fully answer a number of important
questions asked by senators during his fall confirmation hearing requires
that his nomination, if resubmitted by Bush, should be returned to the
Judiciary Committee for another hearing. Renomination of these
individuals promises to create significant controversies.
Conclusion
A more energetic and substantive debate on the importance of judicial
nominations to Americans' lives must begin immediately, and must be
broader than the battle lines that are drawn on any particular
nomination. There is no doubt that other urgent policy issues are facing
the administration, Congress, and the American people - from war to the
state of the economy. But those issues must not be allowed to prevent
the necessary attention from being given to what is at stake with the
President's judicial nominations.
Americans must come to understand that struggles over judicial
nominations are not just partisan political battles. The judges who are
appointed to lifetime positions on the federal appeals courts and the
Supreme Court will answer questions that shape for decades how America
works and Americans live: Will the Supreme Court undermine the federal
government's ability to safeguard the air we breathe and the water we
drink? Will the courts abandon their role in preserving Americans' right
to privacy and strip women of the constitutional right to make their own
family planning and reproductive choices? Will Congress lose the power
to protect Americans' civil rights from abuses by state governments and
others? Will the Voting Rights Act be applied so narrowly that it fails
to protect citizens' most fundamental rights?
This is a defining moment for the meaning of the Constitution and the
direction of the nation for the first half of the 21st Century. That
fact is clearly understood by Religious Right leaders and their allies in
the White House and Congress. That is why they have focused so intently
on judicial nominations. It is time for the American people - and for
members of the Senate - to focus on the issue with the same intensity and
clarity of purpose.
For extensive information on the federal judiciary, please visit
www.pfaw.org.
Ben Betz Southern Field Coordinator People For the American Way/PFAW
Foundation ph: 1-800-326-7329 x2364 fx: 202-293-2672 bb...@pfaw.org
There is an urgent need for a vigorous national debate on the
Bush-Scalia-Thomas judicial philosophy and the impact the President's
judicial nominations could have on the daily lives of every American.
What would it mean to privacy rights, civil rights, reproductive choice,
clean air and water, and religious liberty if President Bush fulfills his
promise to appoint judges like Clarence Thomas and Antonin Scalia?
Americans have a right to know what is at stake before they wake up one
morning in 2004 or in 2005 and discover that overnight they have lost
fundamental rights, liberties, and protections that they thought were
theirs forever.
It should be made clear at the outset of this year's debate that
discussing the impact of a states' rights judicial philosophy on the
enforcement of civil rights protections is not the equivalent of accusing
any individuals of racism or other animus. The issue before the Senate
is not what is any individual's heart, but rather the practical impact
of a legal and judicial philosophy that would limit the federal
government's ability to enforce civil rights laws. Whether or not judges
embrace a judicial philosophy that would restrict civil rights
enforcement is an urgent and entirely legitimate line of inquiry, and it
should not be derailed by false charges that raising the question amounts
to "playing the race card."
The Supreme Court: Looking Ahead to the Past
President Bush is likely to have the opportunity to appoint more than one
Supreme Court justice between now and the end of 2004. If Chief Justice
William Rehnquist retires this year, and President Bush nominates a
sitting justice for that position , there could be multiple confirmation
hearings this summer. If newly appointed justices are adherents of the
judicial philosophies represented by President Bush's favorite justices,
Antonin Scalia and Clarence Thomas, the result would be not only the
reversal of more than half a century of legal and social justice
accomplishments, but also a return to a situation America faced in the
first third of the 20th Century, when progressive legislation adopted by
Congress and signed by the President was repeatedly rejected on
constitutional grounds by the Supreme Court. A Court dominated by the
states' rights judicial philosophy could prevent the federal government
from taking action on a range of national issues, regardless of who is
elected to the White House or Congress.
The Supreme Court and other federal courts exercise tremendous power in
deciding cases on such issues as the right to privacy, reproductive
freedom, religious liberty, environmental protection, consumer and worker
safety and health, and the civil rights of women, minorities, people with
disabilities, older individuals, gay and lesbian Americans, indeed, all
Americans. The Bush administration's judicial nominations could result in
a federal judiciary hostile to these concerns and dominated by a states'
rights approach to the Constitution that had been rejected on a
bipartisan basis for half a century.
Because most cases before the Supreme Court that raise fundamental
constitutional questions are now decided by slim majorities, more than
100 Supreme Court precedents could be overturned with just one or two
more appointments of individuals who share the judicial philosophies of
Justices Antonin Scalia and Clarence Thomas. Beginning in 1995, a narrow
5-4 Supreme Court majority began a series of rulings that have restricted
the power of Congress to protect citizens whose rights have been abused
by state governments and others. Justices Scalia and Thomas embrace an
even more radical states' rights judicial philosophy and have advocated
overturning other key precedents that protect civil rights and liberties.
A Scalia-Thomas majority on the Supreme Court could, among other things:
* gut the Voting Rights Act and abolish affirmative action and other
remedies that undo the effects of past and present discrimination;
* eliminate a woman's constitutional right to reproductive freedom and
privacy;
* dismantle vital environmental protections for clean water and clean
air;
* tear down the wall separating church and state.
The result would be a dramatic rollback in decades of legal and social
justice gains, and a return to a constitutional framework in which
states' rights and property rights were predominant. Ironically, this
could occur even as the nation decisively rejected Trent Lott's embrace
of Strom Thurmond's earlier segregationist political views, which were
the animating force behind the states' rights movement in opposition to
federal civil rights enforcement.
For more information about the impact of a further rightward shift on the
Supreme Court, see Courting Disaster, published in 2000 by People For the
American Way Foundation, as well as 2001 and 2002 Courting Disaster
updates at www.pfaw.org/pfaw/general/default.aspx?oid=830.
The Circuit Courts of Appeal
The vast majority of federal cases never make it to the Supreme Court,
but are decided by lower federal courts. Every year these courts decide
thousands of cases that affect Americans' daily lives and kind of country
which their children and grandchildren will inherit. In 2001, for
example, the federal appellate courts decided more than 28,000 cases,
many of which were important rulings on privacy, reproductive rights,
environmental protection, and human and civil rights. The United States
Supreme Court, however, issued fewer than 100 decisions. So in more than
99 percent of the cases, the circuit courts have the final say on issues
affecting millions of Americans.
These crucial courts are on the verge of falling under the ideological
domination of the far right wing of American legal thought. As a result
an unprecedented blockade of the circuit courts led by Trent Lott, John
Ashcroft, and Orrin Hatch, 35 percent of President Clinton's appellate
court nominees were blocked from 1995-2000; 45 percent failed to receive
a vote in the Congress during which they were nominated. The impact of
this six-year Republican Senate blockade was to perpetuate a large number
of appeals court vacancies in the hopes that a Republican president could
then fill those vacancies with ultraconservative judicial ideologues.
By preventing President Clinton from filling so many appeals court seats,
Republican senators set up the current situation in which all thirteen
federal circuit courts of appeal could soon be controlled by judges
appointed by one political party. Republican-nominated judges currently
hold a majority on eight of the 13 circuit courts of appeal - three have
a majority of Democratic appointees and two are split. If President Bush
fills all the current vacancies, that number will rise to 11. And by the
end of 2004, Republican-appointed judges could make up a majority on
every one of the 13 circuit courts of appeals (see attached chart).If
President Bush and the Senate fill those vacancies with states' rights
ideologues, the consequences will be enormously damaging to our
constitutional framework and the rights and freedoms it protects.
For more information about the importance of the appellate courts see
President Bush, the Senate and the Federal Judiciary: Unprecedented
Situation Calls for Unprecedented Solution, published by People For the
American Way Foundation and available at
www.pfaw.org/pfaw/general/default.aspx?oid=628.
The Senate's Advise and Consent Role
In our system of checks and balances, the Senate has a co-equal role with
the President in appointing federal judges, since it must provide its
"advice and consent" before any nominee becomes a judge. It is
imperative that the Senate carries out this constitutional role in a
careful, thorough and diligent manner. Judicial nominees - who are
confirmed for lifetime appointments - must be subject to the highest
standard of scrutiny. The decisions of judges last long after they and
the President who appointed them have retired.
No nominee is presumptively entitled to confirmation to a lifetime
appointment to any federal court. Particularly for the courts of
appeals and the Supreme Court, a nominee bears the burden of
demonstrating that he or she meets the appropriate qualifications, which
should include a demonstrated commitment to civil rights and individual
liberties, and a clear respect for Congress' proper constitutional role
in protecting constitutional and civil rights and the health and safety
of all Americans. More than 200 law professors have written to the
Senate, setting forth these qualifications (A copy of the July 13, 2001
letter is available from People For the American Way Foundation).
Each nominee's record must be examined carefully, including unpublished
opinions and other information that may not be readily available. By its
very nature, this sometimes is a time-consuming process but one that is
essential to the Senate's obligation to evaluate the full record of a
nominee. The mere absence of disqualifying evidence in a nominee's
record should not constitute sufficient grounds for confirmation.
The Senate should reject court-packing efforts. Senators should openly
discuss the potential impact of far-right domination of the federal
courts and the importance of opposing nominees whose lifetime
appointments would threaten America's rights and liberties. More
moderate, mainstream nominees who reflect genuine bipartisan consultation
should receive priority in processing.
With the return of the Senate to Republican control, there are serious
concerns that the Senate may simply rubberstamp judicial nominees.
Senate Democrats and moderate Republicans must prevent this from
occurring. Bipartisan rules and practices that help prevent Senate
leaders from railroading nominees through the Senate, such as respecting
the "blue slip" authority of home state senators and ensuring that each
controversial nominee receives a separate hearing, should not be
improperly altered. All these safeguards are especially important with
respect to appellate court vacancies that Republican Senators blocked
from being filled in 1995-2000 for political reasons. When necessary,
senators must be willing to use the filibuster to prevent the lifetime
appointment of particularly damaging nominees. As the New York Times
wrote in a post-election editorial, Senate Democrats "should reach out to
moderate Republican senators and build a mainstream coalition. And when a
judicial nominee is unacceptable, they should not be afraid to mount a
filibuster...."
Senate Handling of President Bush's Nominees under Democratic Control
President Bush and Republican Senate leaders have falsely claimed that
the administration's judicial nominees were not treated fairly during the
time that Democrats held a majority in the Senate. In fact, Bush's
judicial nominees were confirmed at a rapid pace, and were given far
better treatment than President Clinton's nominees received at the hands
of the Republican Senate majority. The Senate's record in 2001-2002
affords no justification for a rush to rubberstamp administration
nominees this year.
The Senate under Democratic control confirmed 100 of President Bush's
judicial nominees in 17 months. The 100 confirmations represent
significantly more than the 71 judges confirmed during the first two
years of the first Bush administration and the 75 confirmed during the
first two years of Republican Senate control during the Clinton
administration. In fact, these 100 confirmations are more than the
number confirmed during any of the Republican controlled Congresses under
President Clinton, when there was an average of only 38 confirmations per
year.
In just one year, the Senate Judiciary Committee under the chairmanship
of Senator Leahy held 21 nomination hearings on 78 nominees-despite the
serious disruptions in Senate business and distractions caused by the
9/11 and anthrax attacks. Before the Senate recessed, 26 hearings were
held on
103 nominees in 2001-2002. During six years of Republican Senate
control, the Judiciary Committee averaged only about 10 hearings per a
year. During the Reagan, Bush, and Clinton presidencies, four nominees on
average were confirmed each month. By contrast, after the first 17
months of Senator Leahy's chairmanship, the average was 6 confirmations
per month.
In 2001-2002, the Senate reversed the rise in judicial vacancies caused
by the previous Republican controlled Senate. As a result of the
serious delays during the years that the Republican Senate majority
controlled the process, the total number of federal court vacancies
increased from 65 in
1995 to 111 in July 2001, an increase of more than 70 percent. Between
July 2001, when Senate Democrats resumed control, and November 21, 2002,
the number of vacancies decreased from 111 to 60. For nearly half of
these vacancies (29), the President has yet to submit a nominee.
Contradicting claims by the Bush administration and its Senate allies,
the pace of appellate court confirmations over the past year and a half
significantly exceeded prior confirmation rates. The Democratic-majority
Senate confirmed 17 of President Bush's appellate court nominations, 11
of which were confirmed during the first year of Democratic control. Two
appeals court nominees were rejected in public votes by the Judiciary
Committee after open hearings. In comparison, Republicans averaged
fewer than eight confirmations per year in the 1990s, and blocked many
nominees from ever having hearings or votes. Because of the delay and
refusal to vote on President Clinton's nominations from 1995 through
2000. the total number of vacancies on the courts of appeals more than
doubled during that period, growing from 16 to 33. Despite new
vacancies, the total number of appellate court vacancies was reduced to
25 during 2001-2002.
Troublesome Bush Administration Nominees
Many of President Bush's 2001-2002 nominees to the appellate courts,
recommended by the Federalist Society and its allies within and outside
the administration, have troubling records and could cause serious damage
to the enforcement of our constitutional rights and liberties, the
ability of the federal government to protect our air and water, and much
more.
This is particularly true of a number of the first group of appellate
court nominees Bush named in May 2001 who are being aggressively pushed
for renomination this year by right-wing senators and advocates. Yet
Newsday suggested that these initial nominees were "peppered with members
of the Federalist Society, heavy on states'-rights rhetoric, and
inhospitable to abortion rights," while a Detroit Free Press editorial
suggested that many "seem to have been selected because of their
ideology, not their judicial qualifications." (For more information on
the philosophy and extraordinary influence of the Federalist Society on
this administration and its judicial selection process, see The
Federalist Society: From Obscurity to Power, published by People For the
American Way Foundation and available at
www.pfaw.org/pfaw/general/default.aspx?oid=653.)
Two nominees, Judges Charles Pickering and Priscilla Owen, were rejected
by the Senate Judiciary Committee in 2002. Although many believe that
the Trent Lott controversy may forestall the renomination of Pickering,
whose initial nomination Lott had championed, serious civil rights and
other concerns remain with respect to many other candidates for
renomination. For example:
* Jeffrey Sutton, an officer in the Federalist Society's Separation of
Powers and Federalism practice group, was nominated to the Sixth Circuit
Court of Appeals. Sutton has been criticized for his extensive efforts as
a lawyer to severely limit federal protections against discrimination and
injury based on disability, race, age, sex, and religion. More than 70
national organizations and over 375 regional, state, and local groups
have opposed his confirmation. Sutton has vigorously advocated going
further even than the current 5-4 Supreme Court majority in restricting
Congress' authority to protect civil rights. As the Wall Street Journal
reported, Sutton was described even by one of his supporters as the
"perfect kind of poster child for what Democrats see as prototypical
George W. Bush judges."
*
* Priscilla Owen, a Federalist Society member and currently a justice on
the Texas Supreme Court, was nominated to the Fifth Circuit Court of
Appeals. Owen has been criticized as one of two judges on the "far right
wing" of the conservative Texas court, further to the right than
President Bush's own appointees to that court when he was governor. In
one decision in which she dissented, Owen called for a very narrow view
of a state law concerning the ability of minors to obtain an abortion
without parental notification. Then-Texas Supreme Court Justice Alberto
Gonzales - who is now chief White House counsel - warned that adopting
the dissenters' view would be an "unconscionable act of judicial
activism." (This was only one of 11 cases in which Gonzales criticized
or joined other justices' criticism of positions taken by Owen.) In
another dissent, Owen effectively sought to rewrite an important state
civil rights law to make it much harder for employees to prove that their
rights were violated. Owen's confirmation was rejected by the Senate
Judiciary Committee on September 5, 2002.
* Carolyn Kuhl, a Federalist Society member and currently a California
state trial court judge, was nominated to the Ninth Circuit Court of
Appeals. She has been severely criticized for her record on civil rights
and abortion. For example, while in the Justice Department under the
Reagan Administration, Kuhl urged the Supreme Court to overturn Roe v.
Wade as "flawed." According to news reports, she also reportedly played a
key role in convincing then-Attorney General William French Smith to
reverse prior policy and support the granting of tax-exempt status to Bob
Jones University despite its racially discriminatory practices. The
Supreme Court, by an 8-1 vote, later rejected the Reagan administration's
position and upheld the Internal Revenue Service's denial of tax exempt
status to Bob Jones University.
* Terrence Boyle, a former staffer to Senator Jesse Helms and a district
court judge in North Carolina, was nominated to the Fourth Circuit Court
of Appeals. A number of civil rights groups have criticized Boyle for his
right-wing judicial activism in civil rights cases. Boyle twice ruled
that congressional redistricting in North Carolina was unconstitutional
because it favored minority voters, but was reversed both times by the
Supreme Court, once in a unanimous ruling. In another case, Boyle
refused to accept a settlement of a Justice Department gender
discrimination claim against a North Carolina agency, even though the
state had agreed to the settlement. He later allowed the state to
withdraw from the settlement, a ruling reversed by the court of appeals.
* Deborah Cook, a justice on the Ohio Supreme Court, was nominated to the
Sixth Circuit Court of Appeals. One of the most frequent dissenters on
her court, Cook's judicial record has prompted strong opposition to her
confirmation from Ohio organizations concerned with protecting
individual, civil, and consumer rights. According to Ohio Citizen
Action, Cook's dissents "reveal a callousness toward the rights of
ordinary citizens which offends any reasonable sense of justice." For
example, in one case in which Cook dissented from a ruling by the Ohio
Supreme Court favorable to a disabled worker, the court majority
criticized her opinion as "confused," "lack[ing] [in] statutory support
for its position," "pure fantasy," and "entirely without merit." In
another case, Cook dissented from a ruling by the court striking down a
state law that would have made it virtually impossible for an employee to
recover damages from an employer caused by an intentional tort committed
by the employer.
* Miguel Estrada, a Federalist Society member and D.C. lawyer, was
nominated to the D.C. Circuit Court of Appeals. His confirmation has been
opposed by the Congressional Hispanic Caucus and the Puerto Rican Legal
Defense and Education Fund, and serious concerns about his nomination
have been raised by many other Latino and civil rights groups. He has
been criticized for extensive efforts to defend so-called anti-loitering
laws, which have been shown to have a disproportionately negative effect
on African-Americans and Latinos; in one case, he argued that the NAACP
did not even have standing to challenge such an ordinance. A former
supervisor in the Solicitor General's office concluded that Estrada
"lacks the judgement" and is "too much of an ideologue to be an appeals
court judge." Estrada's refusal to fully answer a number of important
questions asked by senators during his fall confirmation hearing requires
that his nomination, if resubmitted by Bush, should be returned to the
Judiciary Committee for another hearing. Renomination of these
individuals promises to create significant controversies.
Conclusion
A more energetic and substantive debate on the importance of judicial
nominations to Americans' lives must begin immediately, and must be
broader than the battle lines that are drawn on any particular
nomination. There is no doubt that other urgent policy issues are facing
the administration, Congress, and the American people - from war to the
state of the economy. But those issues must not be allowed to prevent
the necessary attention from being given to what is at stake with the
President's judicial nominations.
Americans must come to understand that struggles over judicial
nominations are not just partisan political battles. The judges who are
appointed to lifetime positions on the federal appeals courts and the
Supreme Court will answer questions that shape for decades how America
works and Americans live: Will the Supreme Court undermine the federal
government's ability to safeguard the air we breathe and the water we
drink? Will the courts abandon their role in preserving Americans' right
to privacy and strip women of the constitutional right to make their own
family planning and reproductive choices? Will Congress lose the power
to protect Americans' civil rights from abuses by state governments and
others? Will the Voting Rights Act be applied so narrowly that it fails
to protect citizens' most fundamental rights?
This is a defining moment for the meaning of the Constitution and the
direction of the nation for the first half of the 21st Century. That
fact is clearly understood by Religious Right leaders and their allies in
the White House and Congress. That is why they have focused so intently
on judicial nominations. It is time for the American people - and for
members of the Senate - to focus on the issue with the same intensity and
clarity of purpose.
For extensive information on the federal judiciary, please visit
www.pfaw.org.
Ben Betz Southern Field Coordinator People For the American Way/PFAW
Foundation ph: 1-800-326-7329 x2364 fx: 202-293-2672 bb...@pfaw.org
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D Stephen Heersink
<violad...@yahoo.com> writes:
>EXCERPT: The Supreme Court and other federal courts exercise tremendous power in
>deciding cases on such issues as the right to privacy, reproductive
>freedom, religious liberty, environmental protection, consumer and worker
>safety and health, and the civil rights of women, minorities, people with
>disabilities, older individuals, gay and lesbian Americans, indeed, all
>Americans. The Bush administration's judicial nominations could result in
>a federal judiciary hostile to these concerns and dominated by a states'
>rights approach to the Constitution that had been rejected on a
>bipartisan basis for half a century.
I think you're mistaken about the belief in States' Rights approach to
the Constitution. Our whole federal system is built upon States Rights
and Amendments IX, X, and XI all point to States' Rights. For some
reason liberals don't like the system, whereas for the same enigmatic
reasons conservatives are endeared to it. Regardless of the political
spectrums' pull towards their own agendas, States' Rights give each
State the right to set its own executive, legislative, and judiciary
preferences unless preempted by the federal system, and even then, the
federal system is limited in what it can impose on the States. (The
federal government circumvents this constitutional institution by
tying monies to federal laws, so that the States, bereft of funds, buy
into the federal programs.)
An example or two where States Rights benefit gay and lesbians is
Vermont and Hawaii. These States are either contemplating or passed
laws that allow members of the same gender to marry. Here, the States
were progressive, but it was the federal government that passed the
Defense of Marriage Act, supported by the far left and far right, and
signed by a Democrat Bill Clinton. Thus the federal laws supersede the
State initiatives, which has not been good for gays and lesbians.
Another example, California's legislature has moved toward "equal
rights" legislation in all aspects of gay and lesbian domesticity,
without calling it "marriage," because the State prohibits it by
referendum. Yet California now has one of the most progressive bodies
of law favoring gays and lesbians without the appellation of
"marriage" being used.
If there is anything to "worry" about it is not who George Bush
appoints to the federal bench or the SCOTUS. In the past, first
liberals, then conservatives, have attempted to use the courts to
circumvent our tripartite system of executive, legislative, and
judiciary, and come to rely on the judiciary alone. This worked during
the Warren Court, when judicial activism prevailed, but for the most
part the Supreme Court's sole purpose is to decide constitutional
issues. If each role of government is exercised properly, we don't
need to pick out a single governmental entity to get laws passed and
rights upheld. The Courts were convenient because they are the arbiter
of last resort, but legislative and executive branches, if they do
their jobs properly, should function in a wholly tripartite manner.
Since it has become so important to some of our readers to apply
copyright laws where they want and ignore them where they don't, did
you obtain Ben Betz Southern Field Coordinator People For the American
Way/PFAWFoundation ph: 1-800-326-7329 x2364 fx: 202-293-2672
bb...@pfaw.org for permission to reprint the entire, and I mean
entire, article? I suspect it only applies as a double standard.
Kind regards,
_____________________
D. Stephen Heersink
San Francisco
dsh...@intergate.com
--
This is message #4250.
Faren D'Abell
> I think you're mistaken about the belief in States' Rights approach to
> the Constitution. Our whole federal system is built upon States Rights
> and Amendments IX, X, and XI all point to States' Rights. For some
> reason liberals don't like the system, whereas for the same enigmatic
> reasons conservatives are endeared to it.
Keep reading the Amendments. XIII, XIV, and XV all explicitly protect
opressed citizens from unreasonable state actions.
> An example or two where States Rights benefit gay and lesbians is
> Vermont and Hawaii. These States are either contemplating or passed
> laws that allow members of the same gender to marry.
Hawaii's old news. The state supreme court was poised to strike down a ban
on gay marriages when a heavily (out-of-state) funded minority convinced
enough voters to vote for a state constitutional amendment engrain the
double standard for marriage in the state's constitution, taking it out of
the hands of the state supreme court. And our beautifully crafted U.S.
Constitution that originally considered blacks as partial humans, obviously
doesn't have explicit protections for gays and lesbians to trump the state
constitution.
> Yet California now has one of the most progressive bodies
> of law favoring gays and lesbians without the appellation of
> "marriage" being used.
Take a look at what rights are granted to couples on a federal level versus
a state level. Federally, marriage means social security benefits,
inheritance benefits, tax benefits, insurance benefits, residency and
citizenship benefits, employment benefits (peace corps assignments, etc.)...
The list goes on. Basic civil rights are guaranteed federally. When they're
not, one "rogue" state acknowledging the rights of an opressed group doesn't
go very far.
> Since it has become so important to some of our readers to apply
> copyright laws where they want and ignore them where they don't, did
> you obtain Ben Betz Southern Field Coordinator People For the American
> Way/PFAWFoundation ph: 1-800-326-7329 x2364 fx: 202-293-2672
> bb...@pfaw.org for permission to reprint the entire, and I mean
> entire, article? I suspect it only applies as a double standard.
I'm new to the group and must've missed the earlier copyright debates, but
1) the author of the article is Ralph Neas not Ben Betz; and 2) the post
looked like an email intended for distribution, not a published article. If
it's sent as an email and doesn't contain copyright or confidentiality
disclaimers, there's no issue, ESPECIALLY if it's the entire article and not
taken out of context.
Faren D'Abell
--
This is message #4251.
Mathemagician
>I think you're mistaken about the belief in States' Rights approach to
>the Constitution. Our whole federal system is built upon States Rights
>and Amendments IX, X, and XI all point to States' Rights. For some
>reason liberals don't like the system, whereas for the same enigmatic
>reasons conservatives are endeared to it.
Incorrect.
This is the typical political correctness of the Right:
When the decision is something we don't like, we call it "judicial
activism." When the decision is something we like, we call it "strict
constructionist."
Along those lines is the idea that somehow "states rights" has been
abandoned by the judiciary. This was the same argument that was brought
forward in such things as Loving vs. Virginia which struck down miscegenation.
While the Right may think that the Left has forgotten about states rights,
it seems apparent that the Right has completely forgotten about individual
rights as explicitly stated in Amendments IX and X.
And contrary to your claim, the Eleventh Amendment doesn't have to do with
states rights but rather jurisdiction:
The Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.
The reason for this amendment is to clarify the extent of Article III,
Section 2, Clause 1:
The judicial Power shall extend to all Cases, in Law and Equity, arising
under this Constitution, the Laws of the United States, and Treaties made,
or which shall be made, under their Authority; to all Cases affecting
Ambassadors, other public Ministers and Consuls; to all Cases of admiralty
and maritime Jurisdiction; to Controversies to which the United States
shall be a Party; to Controversies between two or more States; between a
State and Citizens of another State; between Citizens of different States;
between Citizens of the same State claiming Lands under Grants of different
States, and between a State, or the Citizens thereof, and foreign States,
Citizens or Subjects.
The point behind the amendment is to prevent a citizen of one State from
bringing suit against another State in federal court. It has also been
interpreted to prevent suits brought by a citizen against his own State in
federal court.
While one could claim that in a broad definition of "states rights," this
amendment has some bearing, but that definition seems to be a bit overly broad.
>Regardless of the political
>spectrums' pull towards their own agendas, States' Rights give each
>State the right to set its own executive, legislative, and judiciary
>preferences unless preempted by the federal system, and even then, the
>federal system is limited in what it can impose on the States.
Indeed.
But you seem to have forgotten that the Constitution also provides rights
to individuals. The Right tends to argue, for example, that the
Constitution doesn't explicitly state that there is a right to
abortion. And that's true, it doesn't. But the Constitution does
explicitly state that not all rights that citizens have are enumerated therein:
Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
>(The
>federal government circumvents this constitutional institution by
>tying monies to federal laws, so that the States, bereft of funds, buy
>into the federal programs.)
Incorrect. The federal government has every right to do so. The
Fourteenth Amendment makes it clear that Federal law trumps State law and
in areas where there is discrepancy, the Federal system has every right to
place conditions on use of funds provided to the States just as the State
has every right to place conditions on use of funds provided to the Citizens.
Note, for example, the marijuana possession in California is legal while it
is illegal under Federal law.
>An example or two where States Rights benefit gay and lesbians is
>Vermont and Hawaii. These States are either contemplating or passed
>laws that allow members of the same gender to marry. Here, the States
>were progressive, but it was the federal government that passed the
>Defense of Marriage Act, supported by the far left and far right, and
>signed by a Democrat Bill Clinton.
Indeed, but the violation of states rights is different from the civil
rights. That is, it is a constitutional civil right to get married as the
SCOTUS stated in Loving vs. Virginia (or are you claiming that the SCOTUS
was wrong to decide that miscegenation laws violated the
Constitution?) The problem with DOMA is that the question of managing
marriage is something that has always been considered a State's
perogative. There is no Federal license for marriage, only State licenses.
Too, DOMA violates the Full Faith and Credit clause.
But striking down DOMA will not make same-sex marriage legal. That is a
completely separate question which is clearly a Federal case: Whether or
not equal protection under the law as outlined in the Fourteenth Amendment
includes the right to marry a person regardless of sex. Marriage has
already been considered a fundamental right by the SCOTUS. So please
explain how interracial marriage makes sense by same-sex marriage doesn't.
>Thus the federal laws supersede the
>State initiatives, which has not been good for gays and lesbians.
Incorrect. DOMA does not prevent a State from legalizing same-sex
marriage. What it does is claim that the Federal government will not
recognise any such licenses and that other States can get around the Full
Faith and Credit clause.
>Another example, California's legislature has moved toward "equal
>rights" legislation in all aspects of gay and lesbian domesticity,
>without calling it "marriage," because the State prohibits it by
>referendum. Yet California now has one of the most progressive bodies
>of law favoring gays and lesbians without the appellation of
>"marriage" being used.
But it is still ineffective because most of the laws of any real effect
require the partners to be married, including all of the Federal rights
that go along with marriage. Take, for example, the huge fight that had to
take place to see if Sharon Smith had any standing at all in the Diane
Whipple case.
It is still the case that an opposite-sex couple can simply go to City
Hall, fill out a few forms, and get married quite quickly with little cost
and immediately acquire a slew of rights and benefits. Same-sex couples
have to jump through a bizillion hoops, file many different legal forms
costing a great deal of money, and then rely upon the good graces of
employers and other institutions to recognise the relationship which they
are not required to do.
>If there is anything to "worry" about it is not who George Bush
>appoints to the federal bench or the SCOTUS.
Incorrect.
The exact opposite is true. The thing everyone needs to worry about is the
composition of the Supreme Court. Rhenquist, Scalia, and Thomas have shown
themselves to be the epitome of the "judicial activist" that the Right
supposedly detests (but see above: If they like the result, it isn't
"judicial activism" but rather "strict constructionism" in the Right's PC
jargon.) Bush has said that he finds Scalia and Thomas to be the type of
judges he wishes to appoint.
Does anybody think that the SCOTUS will strike down DOMA as a violation of
states rights if the makeup looks like Rhenquist/Scalia/Thomas?
>In the past, first
>liberals, then conservatives, have attempted to use the courts to
>circumvent our tripartite system of executive, legislative, and
>judiciary, and come to rely on the judiciary alone.
Incorrect.
All politicians of all places along the spectrum have turned to the courts
for their results. The idea that this is something originated by the Left
shows a severe lack of knowledge of history.
>This worked during
>the Warren Court, when judicial activism prevailed, but for the most
>part the Supreme Court's sole purpose is to decide constitutional
>issues.
Notice the politically correct response:
When they like the result, it's "strict constructionism." When they don't
like the result, it's "judicial activism."
>If each role of government is exercised properly, we don't
>need to pick out a single governmental entity to get laws passed and
>rights upheld.
Then what is the point of the judiciary if not to check the power of the
legislature and the executive?
The executive has the right to overrule the legislature through veto. The
legislature has the right to overrule the executive through a two-thirds
majority repassage after veto.
So who gets to overrule that process? Suppose the legislature passes and
the executive signs a law that violates the Constitution? Where do we turn
to remove that law?
That's right: The Judiciary. That's what Article III says:
The judicial Power of the United States, shall be vested in one supreme
Court....
What do you think "judicial power" means?
And who overrules the Supreme Court? The people through the power of the
legislature to amend the Constitution. That's what happened in
Hawaii: The HSC came to the conclusion that the Hawaiian Constitution,
especially with its equal rights clause that specifically mentions sex,
must allow same-sex marriage. Thus, an amendment to the Hawaiian
Constitution was put in that rendered that decision moot.
>The Courts were convenient because they are the arbiter
>of last resort, but legislative and executive branches, if they do
>their jobs properly, should function in a wholly tripartite manner.
Indeed, they should.
Part of that is to be aware of what the Constitution says and not
deliberately pass unconstitutional laws such as DOMA.
How do you propose to strike down DOMA? The goodness of the hearts of
Congress and the President? Remember: Not a single Republican voted
against DOMA. We can go through all of the Democrats who also voted for it
and, indeed, a Democrat signed it into law, but if you think the Right is
going to be the saviour and say that since DOMA violates Full Faith and
Credit as well as the Ninth, Tenth, and Fourteenth Amendments, it should be
retracted, then I really want to know just who it is you think are the
majority of the Right.
>Since it has become so important to some of our readers to apply
>copyright laws where they want and ignore them where they don't,
Read: Hey! Everybody else is doing it, so I should be allowed, too!
Yeah, that makes sense. Because somebody else gets away with something
illegal, then everybody should get away with it.
You will notice, Stephen, that I only mention violations of copyright when
actually responding to the article in toto. That is, I don't respond
simply to say, "This is a violation of copyright." Not only would that not
exactly foster discussion, but also it's too late to do anything about it
as there is no way to yank back the violation.
>I suspect it only applies as a double standard.
Nope. It applies to everybody.
And that means you, too.
Think of how much better your writing will become and how much better your
reading skills will be when you have to actually distill salient points
from an article and restate them in your own words.
If all you have to say is, "This is a good article," then just say that and
get it over with.
--
Brian P. Evans | I used to work for Bill Gates...
rrh...@ix.netcom.com | ...but I got better.
--
This is message #4252.
Mathemagician
>2) the post
>looked like an email intended for distribution, not a published article. If
>it's sent as an email and doesn't contain copyright or confidentiality
>disclaimers, there's no issue, ESPECIALLY if it's the entire article and not
>taken out of context.
Incorrect.
All works are assumed to be protected by copyright unless explicitly stated
otherwise. It does not matter the means by which the content is
distributed. Unless the author explicitly states that the content is to be
distributed freely, it is not to be distributed at all without permission.
This has recently been discussed with regard to letters in the courts. If
I write a letter and give it to you, do you have the right to publish that
letter? The answer was no...the words in that letter are mine and if I
have not given you permission, you do not have the right to publish the letter.
However, the physical copy of the letter is yours since I gave it to you
and thus, you have every right to dispose of that letter as you see
fit. If you wish to place the letter in a gallery where the entire public
can see it and read my words, that is perfectly within your rights.
To copy an entire article, especially copying an entire article, is to
violate copyright. As stated in Section 107 of US Copyright Law:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for purposes
such as criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research, is not an infringement
of copyright. In determining whether the use made of a work in any
particular case is a fair use the factors to be considered shall include-
(1) the purpose and character of the use, including whether such use is of
a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair
use if such finding is made upon consideration of all the above factors.
Note section 3: The amount of the portion used is a factor in determining
if a violation has taken place. If you are doing a review of the latest
Stephen King novel, you cannot include a complete copy of the book and
claim you are simply trying to be thorough and provide complete context.
--
Brian P. Evans | I used to work for Bill Gates...
rrh...@ix.netcom.com | ...but I got better.
--
This is message #4253.
Mathemagician
D. Stephen Heersink responds to James Nimmo:
>Since it has become so important to some of our readers to apply
>copyright laws where they want and ignore them where they don't, did
>you obtain Ben Betz Southern Field Coordinator People For the American
>Way/PFAWFoundation ph: 1-800-326-7329 x2364 fx: 202-293-2672
>bb...@pfaw.org for permission to reprint the entire, and I mean
>entire, article? I suspect it only applies as a double standard.
Did you bother to look?
Here is the copyright information from the People for the American Way's
web site, which is where the article was taken from:
People For the American Way and People For the American Way Foundation
invite you to view, use, download and distribute to others, without charge,
content that appears on this web site provided that you give attribution to
People For the American Way or People For the American Way Foundation, as
appropriate, by including the following statement on any such copy: "Used
with the permission of People For the American Way [or People For the
American Way Foundation]."
http://www.pfaw.org/pfaw/general/default.aspx?oid=2815
Therefore, the problem seems to be not that Nimmo copied the article but
that he did not provide proper attribution according to the copyright
statement.
Like I said, you seem to be upset that you're getting caught. Are you
truly saying that just because other people violate copyright, you should
be able to do so, too?
--
Brian P. Evans | I used to work for Bill Gates...
rrh...@ix.netcom.com | ...but I got better.
--
This is message #4254.
Faren D'Abell
you're completely correct in discussing purpose here. My comments were made
in relation to our use here. The purpose of copying an article is for
criticism & comment. When one uses a copyrighted work for that purpose and
does NOT use the article in toto, the whole purpose of criticism and comment
is circumvented by pulling points out of context. The purpose of copyright
laws is to protect the investment of an owner. To stop persons from copying
rather than buying and thus reducing the owner's income. Copyright is not
intended to be a privacy protection. There's no effective difference between
an email you send to me being printed and posted in a gallery and that same
email being "posted" to a website or forwarded to my friends. If an explicit
release was required to use information from every email was required by us
(for criticism and comment) or for me (as a journalist) was required, I'm
sure the several hundred people who send me news releases each day would be
really pissed off to find that I don't open their emails or use any of the
information provided because they didn't provided a signed affidavit of my
ability to use such information in a place other than my personal gallery.
And the teacher exemption you've cited seems to be contradicted. Teachers
are required, if time permits, to ask for permission to copy works in toto.
That's a commercial argument, not a privacy argument.
--
This is message #4256.
D Stephen Heersink
writes:
>D Stephen Heersink wrote:
>
>> I think you're mistaken about the belief in States' Rights approach to
>> the Constitution. Our whole federal system is built upon States Rights
>> and Amendments IX, X, and XI all point to States' Rights. For some
>> reason liberals don't like the system, whereas for the same enigmatic
>> reasons conservatives are endeared to it.
>
>Keep reading the Amendments. XIII, XIV, and XV all explicitly protect
>opressed citizens from unreasonable state actions.
>
>> An example or two where States Rights benefit gay and lesbians is
>> Vermont and Hawaii. These States are either contemplating or passed
>> laws that allow members of the same gender to marry.
As I mention later in the post, if you read that far, the federal laws
trump State laws, and when constitutional issues involved State and
Federal issues, the Feds almost always win. Take, for example, the
medical cannabis referendum overwhelmingly passed by the State of
California, but nullified by the John Ashcroft's Attorney General's
office.
>Hawaii's old news. The state supreme court was poised to strike down a ban
>on gay marriages when a heavily (out-of-state) funded minority convinced
>enough voters to vote for a state constitutional amendment engrain the
>double standard for marriage in the state's constitution, taking it out of
>the hands of the state supreme court. And our beautifully crafted U.S.
>Constitution that originally considered blacks as partial humans, obviously
>doesn't have explicit protections for gays and lesbians to trump the state
>constitution.
I believe you're mistaken, The Constitution does not now, nor has it
ever "originally considered blacks as partial humans." You may be
reading your own prejudices in the document. Similarly, the Article VI
of the Amendment guarantees "equal rights" and "due process" for all
Americans and Article X prohibits slavery. I know it's commonplace to
rewrite history to fit an agenda, but the constitutional founders were
very careful to keep a collage of States unified; it took the Civil
War less than a hundred years later to fulfill what most of the
founders of that document intended.
>
>> Yet California now has one of the most progressive bodies
>> of law favoring gays and lesbians without the appellation of
>> "marriage" being used.
>
>Take a look at what rights are granted to couples on a federal level versus
>a state level. Federally, marriage means social security benefits,
>inheritance benefits, tax benefits, insurance benefits, residency and
>citizenship benefits, employment benefits (peace corps assignments, etc.)...
>The list goes on. Basic civil rights are guaranteed federally. When they're
>not, one "rogue" state acknowledging the rights of an opressed group doesn't
>go very far.
On this point we agree. But corporate America may auger changes in
this realm as well, but maybe not. Almost the entire Congress,
Democrat and Republican, voted for the Defense of Marriage Act. Yet,
most of the Fortune 500 offer "domestic partner" benefits, and even
the Roman Catholic Church in the Archdiocese of San Francisco does.
There is the durable power of attorney for health care that allows a
partner more authority and access to a beloved than any state or
federal statute would venture to allow. Yet, many of the laws you and
I seek are not going to happen when the Congress overwhelmingly
approves the Defense of Marriage Act, since most of these
"entitlement" are "marriage-centered." We aren't going to get these
benefits under the appellation of "marriage," but that only closes one
door. There are other options available. They are unlikely during the
Bush presidency, but I see him as a one-term president. And, as one
Democrat after another announces his intention to run for the office,
we should ask and remind voters of their stances on this issue.
>> Since it has become so important to some of our readers to apply
>> copyright laws where they want and ignore them where they don't, did
>> you obtain Ben Betz Southern Field Coordinator People For the American
>> Way/PFAWFoundation ph: 1-800-326-7329 x2364 fx: 202-293-2672
>> bb...@pfaw.org for permission to reprint the entire, and I mean
>> entire, article? I suspect it only applies as a double standard.
>
>I'm new to the group and must've missed the earlier copyright debates, but
>1) the author of the article is Ralph Neas not Ben Betz; and 2) the post
>looked like an email intended for distribution, not a published article. If
>it's sent as an email and doesn't contain copyright or confidentiality
>disclaimers, there's no issue, ESPECIALLY if it's the entire article and not
>taken out of context.
Actually, they were newspaper articles (one from the Chicago Tribune)
that quoted the articles in their entirety, and both were well over
the prudent standard (usually 250 words) before infringement exists.
I cite an article that was well within the company's published
copyright laws, and Mr. Klorese yells copyright infringement. Others
obviously break the copyright laws, including fair use, and not a
beep. Double standards are everywhere we turn, even among our own
kind.
Kind regards,
_____________________
D. Stephen Heersink
San Francisco
dsh...@intergate.com
--
This is message #4258.
Faren D'Abell
> From: D Stephen Heersink
> As I mention later in the post, if you read that far, the federal laws
> trump State laws, and when constitutional issues involved State and
> Federal issues, the Feds almost always win. Take, for example, the
> medical cannabis referendum overwhelmingly passed by the State of
> California, but nullified by the John Ashcroft's Attorney General's
> office.
I read your whole post. The attorney general can't nullify a law. The
Supreme Court ruled in May, 2001 that federal law superceded prop 215.
> I believe you're mistaken, The Constitution does not now, nor has it
> ever "originally considered blacks as partial humans." You may be
> reading your own prejudices in the document. Similarly, the Article VI
> of the Amendment guarantees "equal rights" and "due process" for all
> Americans and Article X prohibits slavery. I know it's commonplace to
> rewrite history to fit an agenda, but the constitutional founders were
> very careful to keep a collage of States unified;
Article 1, Section 2, Clause 3 of the U.S. Constitution
Representatives and direct Taxes shall be apportioned among the several
States which may be included within this Union, according to their
respective Numbers, which shall be determined by adding to the whole Number
of free Persons, including those bound to Service for a Term of Years, and
excluding Indians not taxed, three fifths of all other Persons.
"other persons" being slaves. The authors of the Constitution had no
interest in equality for all. Their definition of "all" was white male
landowners. Shall I quote some Thomas Jefferson?
"Deep rooted prejudices entertained by the whites; ten thousand
recollections, by the blacks, of the injuries they have sustained; new
provocations; the real distinctions which nature has made; and many other
circumstances, will divide us into parties, and produce convulsions which
will probably never end but in the extermination of the one or the other
race."
"To these objections, which are political, may be added others, which are
physical and moral. The first difference which strikes us is that of
colour. Whether the black of the negro resides in the reticular membrane
between the skin and scarf-skin, or in the scarf-skin itself; whether it
proceeds from the colour of the blood, the colour of the bile, or from that
of some other secretion, the difference is fixed in nature, and is as real
as if its seat and cause were better known to us. And is this difference of
no importance? Is it not the foundation of a greater or less share of
beauty in the two races? Are not the fine mixtures of red and white, the
expressions of every passion by greater or less suffusions of colour in the
one, preferable to that eternal monotony, which reigns in the countenances,
that immoveable veil of black which covers all the emotions of the other
race? "
"The circumstance of superior beauty, is thought worthy attention in the
propagation of our horses, dogs, and other domestic animals; why not in that
of man? ... Comparing them by their faculties of memory, reason, and
imagination, it appears to me, that in memory they are equal to the whites;
in reason much inferior, as I think one could scarcely be found capable of
tracing and comprehending the investigations of Euclid; and that in
imagination they are dull, tasteless, and anomalous."
> >The list goes on. Basic civil rights are guaranteed
> federally. When they're
> >not, one "rogue" state acknowledging the rights of an
> opressed group doesn't
> >go very far.
>
> On this point we agree. But corporate America may auger changes in
> this realm as well, but maybe not. Almost the entire Congress,
> Democrat and Republican, voted for the Defense of Marriage Act. Yet,
> most of the Fortune 500 offer "domestic partner" benefits, and even
> the Roman Catholic Church in the Archdiocese of San Francisco does.
Because the majority of Congress voted for it doesn't make it right. DODT
was a bad policy instituted by a bunch of well-meaning liberals as well.
Doesn't make it right. And according to HRC, 181 of the Fortune 500 offer
domestic partner benefits. Hardly "most."
> They are unlikely during the
> Bush presidency, but I see him as a one-term president. And, as one
> Democrat after another announces his intention to run for the office,
> we should ask and remind voters of their stances on this issue.
Unless we finish the wars before the next election (unlikely), I think Bush
will win office again. America won't unelect a president in the middle of a
war. I agree with you that the Democrats need to remind one another about
the stances of the candidates though. I'm proud to say I never voted for
Clinton and would argue that, other than visibility, he did little for the
furtherance of gay civil rights.
> Actually, they were newspaper articles (one from the Chicago Tribune)
> that quoted the articles in their entirety, and both were well over
> the prudent standard (usually 250 words) before infringement exists.
> I cite an article that was well within the company's published
> copyright laws, and Mr. Klorese yells copyright infringement. Others
> obviously break the copyright laws, including fair use, and not a
> beep. Double standards are everywhere we turn, even among our own
> kind.
Well, I'll agree with you on that one. Does seem like a double standard. In
the weeks I've been on the list I've seen plenty of forwarded emails and
articles, etc. And, as mentioned earlier, I don't see a problem with it in
the context of debate & criticism. If you're bashed for doing it because you
have an opposing viewpoint, that's plain wrong and not in the spirit of good
social debate.
--
This is message #4261.
Mathemagician
> >Keep reading the Amendments. XIII, XIV, and XV all explicitly protect
> >opressed citizens from unreasonable state actions.
>
>As I mention later in the post, if you read that far, the federal laws
>trump State laws,
Actually, that was my point to you.
>and when constitutional issues involved State and
>Federal issues, the Feds almost always win.
No, it completely depends upon jurisdiction.
Take, for example, the difference between Colorado's Amendment 2 and the
Hawaiian State Constitution's equal protection clause with regard to sex.
Colorado's Amendment 2 disenfranchised gay people specifically because they
were gay and made it illegal for them to attempt to do anything to change
it. That is, it not only struck down equal protection clauses established
by cities, but it also made it illegal for gay people to attempt to receive
redress for discrimination based upon their sexual orientation. This is a
clear violation of constitutional rights.
Hawaii's Constitution, however, contains a clause that requires equal
treatment on the basis of sex. It was this clause that was used to justify
same-sex marriage. However, this is not something that the Feds could get
involved in. There is no comment about equal rights on the basis of sex
anywhere in the Constitution, and especially nothing forbidding such a
law. Therefore, for the State of Hawaii to guarantee equal protection on
the basis of sex is well within their rights and if the Hawaii Supreme
Court were to declare that the Hawaii State Constitution requires same-sex
marriage, then there is no recourse to the Federal government as there is
no jurisdictional overlap.
>Take, for example, the
>medical cannabis referendum overwhelmingly passed by the State of
>California, but nullified by the John Ashcroft's Attorney General's
>office.
Incorrect. Or, at least, vague.
That is, California law still exists. If you possess marijuana for
"medical purposes," you will not be prosecuted under California law. If
there is going to be any prosecution, it will be under federal law, which
means that the feds have to get involved. There were various
cannabis-buying clubs scattered throughout California that were left alone
by the State. They were shut down only at the hands of the Feds.
>But corporate America may auger changes in
>this realm as well, but maybe not.
So you're saying that we need to trust upon the kindness of the corporation
to fix what the people in Washington are incapable of?
>Almost the entire Congress,
>Democrat and Republican, voted for the Defense of Marriage Act.
Indeed.
But notice that not a single Republican voted against it.
Not one.
For the current attempt to get ENDA passed, of the 45 co-sponsors of the
Senate bill, only 4 are Republican. Of the 194 co-sponsors of the House
bill, only 21 are Republican.
It would seem that Republicans are quite loathe to consider equal rights
for gays.
>There is the durable power of attorney for health care that allows a
>partner more authority and access to a beloved than any state or
>federal statute would venture to allow.
And how much does it cost to get this power of attorney? And then let's
add in the cost of creating wills, the legal expenses of having to fight
contestations of that will, inability to adopt your parner's child, etc., etc.
Marriage lets you get that done with a single piece of paper and a single
fee. You seem to think that filing a slew of paperwork and paying dozens
of fees only to have those contracts contested in court and often
overturned is somehow "equivalent."
You do understand that "separate but equal" is unconstitutional, yes?
>We aren't going to get these
>benefits under the appellation of "marriage," but that only closes one
>door. There are other options available.
"Separate but equal."
Yeah, right.
>Actually, they were newspaper articles (one from the Chicago Tribune)
>that quoted the articles in their entirety, and both were well over
>the prudent standard (usually 250 words) before infringement exists.
Incorrect.
The article which you specifically complained about was from the People for
the American Way which expressly allows free distribution when accompanied
by a specific tag. Nimmo did not include that attribution, but the
distribution in and of itself was not prohibited.
This compares to your articles that you have posted that come from sites
that specifically prohibit distribution without permission.
>I cite an article that was well within the company's published
>copyright laws, and Mr. Klorese yells copyright infringement.
Incorrect.
You're simply lying, Stephen. I referenced the copyright notice of the
company from which the article was taken. Here is what I found, for the
second time:
You violated the terms of Capitalism Magazine, Stephen. Did you actually
read the link you provided?
If you publish the content on physical paper (non-web) for educational use,
you can copy up to two web pages so long as you notify them. Since this is
neither educational use nor a physical paper reproduction, it doesn't apply.
For web-based publishing, the link says specifically that you are not
allowed to copy a single word from their site without paying a
royalty. You are allowed to link back to the article, but that's it.
The link you mentioned even has a section regarding fair use wherein it
says that you can use a single screen shot as illustration with special
permission and that you can use up to 200 words without special permission
so long as you link back to the article.
You, however, quoted the entire article, Stephen. You violated their terms
of use and have subjected this list to a possible lawsuit.
>Others
>obviously break the copyright laws, including fair use, and not a
>beep. Double standards are everywhere we turn, even among our own
>kind.
Bull puckey.
For the third time:
Did you actually read the link you provided?
Please tell me how the notice provided here:
http://www.capmag.com/company/index.asp
Allows free distribution of an article compared to the notice provided here:
http://www.pfaw.org/pfaw/general/default.aspx?oid=2815
Come on, Stephen. This should be a breeze. Take a look at the two notices
for permissions on redistribution and show me where the first says you can
copy freely and where the second says you can't.
--
Brian P. Evans | I used to work for Bill Gates...
rrh...@ix.netcom.com | ...but I got better.
--
This is message #4265.
Mathemagician
>you're completely correct in discussing purpose here. My comments were made
>in relation to our use here. The purpose of copying an article is for
>criticism & comment.
When no criticism or comment comes along with the article, it cannot be
claimed that the point behind copying the article was for "criticism and
comment."
Too, even when the point is to provide criticism and comment, you still
aren't allowed to copy the *entire*article* under some lame excuse of "I
only wanted to provide complete context."
Like I said before: If you are doing a review of the latest Stephen King
novel, you cannot include a complete copy of the book and claim you are
simply trying to be thorough and provide complete context.
>When one uses a copyrighted work for that purpose and
>does NOT use the article in toto, the whole purpose of criticism and comment
>is circumvented by pulling points out of context.
Incorrect.
That is precisely what you are *not* allowed to do. Copyright law is
extremely clear on this point. You are not allowed to reproduce an article
in toto and then claim that you are simply trying to provide complete
context as the excuse. If you wish to make sure that your audience is
familiar with the source material, you provide information as to how they
can look at the source material on their own. You do not get the right to
copy it all.
Educational institutions have a bypass as they are serving a different market.
We are not an educational institution.
>The purpose of copyright
>laws is to protect the investment of an owner.
Indeed.
And for you to copy an article entirely steals from the owner. You do
realise that this list is propagated through USENET and thus everything
that gets posted here gets broadcast to the world at large for free,
yes? Therefore, why would anybody go to the original source? Why would
they pay the owner the due he wishes for his work when they can come here
and get it for free?
It is precisely the same problem with regarding to Napster: You're
stealing from the author when you copy his work and fling it across cyberspace.
>Copyright is not
>intended to be a privacy protection.
I never said it was.
What I said was that it is a violation of copyright to take an author's
work completely and post it while lamely trying to say, "I just wanted to
provide complete context," as if that were an excuse.
If you are doing a review of the latest Stephen King novel, you cannot
include a complete copy of the book and claim you are simply trying to be
thorough and provide complete context.
>There's no effective difference between
>an email you send to me being printed and posted in a gallery and that same
>email being "posted" to a website or forwarded to my friends.
Incorrect.
There is a very well-understood difference as recognised by copyright law
for many years.
What do you think the argument against Napster was? In copyright law, I am
allowed to make a copy of anything I own for my own use. I can even make a
copy of the latest album I just got and give it to a friend of mine without
any violation of copyright.
But Napster stretched that concept well beyond the limit. I would copy my
music, put it on my machine, and complete strangers would log on and
download it. This wasn't me making a copy for a friend. This was me
distributing the content to the world at large.
If I send you an email, you can send a copy of it to a friend of yours, no
problem. But if you copy it for the world to see, you are violating my
copyright.
The law is quite clear on this.
>If an explicit
>release was required to use information from every email was required by us
>(for criticism and comment) or for me (as a journalist) was required, I'm
>sure the several hundred people who send me news releases each day would be
>really pissed off to find that I don't open their emails or use any of the
>information provided because they didn't provided a signed affidavit of my
>ability to use such information in a place other than my personal gallery.
Oh, I get it:
Because a lot of people break the law, that somehow makes it justified.
You know, there's a very simple way to transfer the information without
breaking the law:
Provide a link.
If all you have to say is, "This is an interesting article," then simply
provide a link to the original and leave it at that. And if you have more
to say, you still simply provide a link to the original and only quote just
as much as you need to make your point without copying the entire piece.
If you are doing a review of the latest Stephen King novel, you cannot
include a complete copy of the book and claim you are simply trying to be
thorough and provide complete context.
>And the teacher exemption you've cited seems to be contradicted. Teachers
>are required, if time permits, to ask for permission to copy works in toto.
>That's a commercial argument, not a privacy argument.
Incorrect.
There was a recent case while I was still an undergrad precisely regarding
this issue. Kinko's provided a service to university professors wherein
they would take the articles that the professor wished to use in class,
copy them into a single set, bind it, and sell it to the students taking
the class as the "book" for the class. You had to provide evidence that
you were taking the class in question in order to buy the collection for
that class.
Now, the concept of creating such a collection is, in itself, perfectly
legal. The professor could easily provide a list of publications, mention
the pages, articles, and chapters that are going to be used and then the
students could go to the library, copy that information, and bind it
themselves. No violation of copyright. And if the professor wanted to go
to all this trouble on his own, that is perfectly acceptable, too
But the decision in the case was that there was a violation of copyright
for Kinko's to do this.
Why? Kinko's isn't an educational institution.
--
Brian P. Evans | I used to work for Bill Gates...
rrh...@ix.netcom.com | ...but I got better.
--
This is message #4266.
Faren D'Abell
> From: Mathemagician
> >The purpose of copyright
> >laws is to protect the investment of an owner.
>
> Indeed.
>
> And for you to copy an article entirely steals from the
> owner. You do
> realise that this list is propagated through USENET and thus
> everything
> that gets posted here gets broadcast to the world at large for free,
> yes? Therefore, why would anybody go to the original source?
> Why would
> they pay the owner the due he wishes for his work when they
> can come here
> and get it for free?
I'm not talking about a 600 page Stephen King book someone rekeyed and
distributes to avoid paying the $22.95 they'd have to pay at Borders to read
the book for entertainment. I'm talking about a press release or an opinion
article that's sent to someone and then redistributed by that someone for no
financial gain. If there was no charge for the product in the first place,
how can you possibly assert that there was financial damage done to the
owner of the copyright?
> There is a very well-understood difference as recognised by
> copyright law
> for many years.
>
> What do you think the argument against Napster was? In
> copyright law, I am
> allowed to make a copy of anything I own for my own use. I
> can even make a
> copy of the latest album I just got and give it to a friend
> of mine without
> any violation of copyright.
Again, napster dealt with copyrighted materials that were not free and were
not obtainable legally in any free manner. The owner _expected_ to make
money from the distribution of their work. That's not the case when you're
talking about an article that's distributed free of charge to a mailing
list. And you're certainly NOT allowed to legally make a copy of an album
and give it to your friend. How about the old Suave commercial.. And she
told to friends... and she told two friends... Poor argument
> If I send you an email, you can send a copy of it to a friend
> of yours, no
> problem. But if you copy it for the world to see, you are
> violating my
> copyright.
Ridiculous. As you pointed out earlier in this email, you're aware that this
is being archived in usenet archives for the world to see, for free.
Additionally, courts have made the distinction between data and format. A
telephone book of phone numbers IS NOT copyrightable. The format of the data
IS copyrightable. You can't literally copy the phone book, but you can rekey
every name and phone number and you're a-okay because the information is
freely available and took no original thought to create. By posting to a
public mailing list, you're making your comments freely available. Do you
think google is paying anyone a copyright fee to archive the exact articles
people have posted to usenet groups? of course not.
> >And the teacher exemption you've cited seems to be
> contradicted. Teachers
> >are required, if time permits, to ask for permission to copy
> works in toto.
> >That's a commercial argument, not a privacy argument.
>
> Incorrect.
>
> There was a recent case while I was still an undergrad
> precisely regarding
> this issue. Kinko's provided a service to university
> professors wherein
> they would take the articles that the professor wished to use
> in class,
> copy them into a single set, bind it, and sell it to the
> students taking
> the class as the "book" for the class.
<snip>
> But the decision in the case was that there was a violation
> of copyright
> for Kinko's to do this.
>
> Why? Kinko's isn't an educational institution.
Wrong wrong wrong. As before, you've pulled points out of context to serve
your point. I'm not sure which case you're specifically referring to (the
very first case of this sort was Basic Books v. Kinkos in 1991), but there
was another more recent case in Michigan (1996)...
In Princeton Univ. Press et al vs. Michigan Document Services, heard at US
Court of Appeals for the Sixth Circuit,
"The corporate defendant, Michigan Document Services, Inc., is a commercial
copyshop that reproduced substantial segments of copyrighted works of
scholarship, bound the copies into "coursepacks," and sold the coursepacks
to students for use in fulfilling reading assignments given by professors at
the University of Michigan. The copyshop acted without permission from the
copyright holders, and the main question presented is whether the "fair use"
doctrine codified at 17 U.S.C. § 107 obviated the need to obtain such
permission."
The fourth fork of fair use is the commercial argument. The Court of
Appeals ruled:
"We agree with the district court that the defendants' COMMERCIAL (emphasis
added) exploitation of the copyrighted materials did not constitute fair
use, and we shall affirm that branch of the district court's judgment"
later continuing to describe the commercial argument...
"The burden of proof as to market effect rests with the copyright holder if
the challenged use is of a "noncommercial" nature. The alleged infringer has
the burden, on the other hand, if the challenged use is "commercial" in
nature. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 451
(1984). "
And the fair use argument also presumes that for nonprofit educational,
criticism, and debate purposes, fair use is granted if time is not
sufficient to ask for permission. Thus, if an article is printed in the
Chicago Tribune yesterday about Iraq, and I quote 50% of it in a debate on
(a more appropriate) mailing list, I'm okay because I don't have time to ask
for permission and I'm not doing it to reduce the Tribune's market by
publishing that portion of the article.
Citing this Michigan case, the University of Texas General Counsel asserts
that fair use should not be assumed after 1 semester of teaching because
after that time, a professor can reasonably have asked for permission.
Bottom line is, we're all responsible for our posts. As I'm not admitted to
any state's bar, I'm not going to try to give legal advice. You can choose
to use your legal education (in which state do you practice copyright law?)
to dissuade others from copying information that may not provide PC
arguments. And if you choose to never quote a source, that's your
prerogative. But, correct me if I'm wrong, the gaynet mailing list isn't
really the place to be having debates over current copyright law. So
this'll be my last post regarding non-gay issues here.
Thanks
--
This is message #4267.
Mathemagician
>I'm not talking about a 600 page Stephen King book someone rekeyed and
>distributes to avoid paying the $22.95 they'd have to pay at Borders to read
>the book for entertainment. I'm talking about a press release or an opinion
>article that's sent to someone and then redistributed by that someone for no
>financial gain.
In the eyes of the law, there is no difference.
It doesn't matter that you, personally, aren't getting any money out of
it. The point is that the author is trying to get money out of it and by
your reckless act, you are depriving him of his livelihood. The internet
is run by advertising. By taking the article out of the environment in
which it was placed, you deprive the advertisers of the eyeballs they paid
the web site for. Without incentives to lure the advertisers to pay for
the site, the site won't exist anymore. And if the site doesn't exist
anymore, the author no longer has the source of income from posting stuff
there.
There was a recent series of lawsuits regarding the ability of periodicals
to digitize their works. Shouldn't be a problem, right? The publishers
bought the article, they've already published it to the world, why should
there be a problem with putting it online? Simple: They didn't pay for
that right. An article published on paper is going to have a limited
audience. When you put it online, you provide access for the entire
world. Different access requires a different payment schedule.
If the author is going to write an article that has a free distribution
copyright, he is going to expect to be paid differently than if he is
writing an exclusive.
>If there was no charge for the product in the first place,
>how can you possibly assert that there was financial damage done to the
>owner of the copyright?
Advertising. Yeah, you didn't pay for that article, but somebody did. The
advertisers paid the web site which in turn paid the author. By removing
the advertisement from the equation, you make the advertiser pull out which
means the web site no longer has the funds to pay the author.
The internet is not free.
>Again, napster dealt with copyrighted materials that were not free and were
>not obtainable legally in any free manner.
And the copyright attached to the various web sites indicate that it is not
free to copy the information therein.
So what makes you think that you have the right to copy something that
clearly indicates you need to pay the author for?
>The owner _expected_ to make
>money from the distribution of their work.
Correct.
The publisher tends to own the work. They often make their money from the
advertisers who are paying to get your bright, shining eyes to be in front
of the advertisements. By removing those advertisements, you remove the
publisher's source of revenue.
>That's not the case when you're
>talking about an article that's distributed free of charge to a mailing
>list.
But the article wasn't originally distributed through the mailing list! It
was originally put on a web site with advertisements. People then copied
the text without the advertisements and distributed it through the mailing
list. That is illegal. And the people who own that copyright aren't going
to restrict themselves to the person who did the copying. They're going to
go after everybody they can, including the owner of the list that allowed
the illegal traffic to continue. I doubt that it's a significant risk
since, after all, this list is a tiny amount of bandwidth, but all it takes
is one. Compare this to CNN's message boards where they have moderators
whose job it is to pore through the posts and look for any quotation from
anything. The policy there is that you aren't even allowed to make
reasonable quotations from other sources. If you want to refer to another
text, then you have to provide a link to it.
Now, why do you think that is? Does the word "lawsuit" spring to mind?
>And you're certainly NOT allowed to legally make a copy of an album
>and give it to your friend.
Yes, you are. That's considered fair use. That was the argument Napster
tried to use: We aren't the ones involved in the copyright
infringement. It is legal for me to make a copy of my material and give it
to my friend. We at Napster cannot be held responsible for people letting
complete strangers have access to the material.
The courts didn't buy that.
>How about the old Suave commercial.. And she
>told to friends... and she told two friends... Poor argument.
At the time the original law was decided, there wasn't any consumer way to
make a perfect copy. Since the public technology was analog, each copy
would get progressively worse and worse until there would be nothing left
to copy. The world has changed with the advent of digital technology. Why
do you think there was such a huge industry outcry against digital audio
tape? It came out at the same time that the CD came into the mass
market. And yet, the recording industry got behind CDs, not
DAT. Why? Because you couldn't make a digital copy of a CD. If you were
to copy a CD, it would be converted to analog and thus start the
degradation process. But with DAT, each copy is the same as the original
with no degradation.
> > If I send you an email, you can send a copy of it to a friend
> > of yours, no
> > problem. But if you copy it for the world to see, you are
> > violating my
> > copyright.
>
>Ridiculous.
Tell it to the judge. You may not like it, but that's the law of the
land. There have been many lawsuits based upon precisely this
argument: One party sent a series of letters to a second party. The
second party collected them and published them and was sued by the estate
of the first party as violation of copyright. The words contained therein
are the property of the author and are protected by copyright. The
physical letter, however, is the property of the recipient.
The author has very strict rights including the rights of reproduction,
distribution, adaptation, performance, display, integrity, and attribution.
>As you pointed out earlier in this email, you're aware that this
>is being archived in usenet archives for the world to see, for free.
Correct. But if I were to put this article on my own personal web site and
then you were to copy my entire work and post it here without my
permission, you are violating my copyright. It doesn't matter that you
aren't doing it for money. I am the owner of the copyright. I have
complete control over distribution rights and you just distributed my work
in a medium that I didn't authorize. You at least face civil liability.
>Additionally, courts have made the distinction between data and format.
I know. That's why I made the distinction between the words on a letter
and the physical letter, itself. If I write you a physical letter, you are
free to do with that letter whatever it is that you want...except publish
the words contained in the letter.
The paper and ink are yours. The words are mine.
>A
>telephone book of phone numbers IS NOT copyrightable.
That's a completely different scenario. Copyright law prohibits the
copyrighting of standard information such as calendars, height and weight
tables, and other public information such as addresses and telephone numbers.
But my words expressing my thoughts are not public information unless I
decide to make them that way.
>The format of the data
>IS copyrightable. You can't literally copy the phone book, but you can rekey
>every name and phone number and you're a-okay because the information is
>freely available and took no original thought to create.
The question is not whether or not it took "original thought to
create." The question is whether or not the information is
public. Calendars require thought to create. Height and weight tables
require thought to create. But, they cannot be copyrighted because they
are public information.
>By posting to a
>public mailing list, you're making your comments freely available.
But you are posting *somebody*else's*words*without*his*permission* to the
public mailing list.
Do you think Chris Wolski was consulted by D. Stephen Heersink before
Wolski's words came along? Or are you saying that Heersink *is* Wolski and
thus the article Heersink posted was actually his own words?
Your following the arrow backwards. The fact that the article shows up
here doesn't mean it is public domain. If I steal your words and publish
them publically, that doesn't make it suddenly free for everyone. You
stole it from me.
>Do you
>think google is paying anyone a copyright fee to archive the exact articles
>people have posted to usenet groups? of course not.
Only because they haven't been sued yet.... Most people who post to USENET
understand that it is a global, publically-available system and thus take
that into account.
But I can tell you something: If I post something to USENET and you take
my words and claim they are your own, you will get sued and will lose. The
fact that something is publically available doesn't mean that it is public
domain.
Have you noticed that most restaurants that make the waiters sing for
people's birthdays have all stopped singing "Happy Birthday"? That's
because there's a copyright on that song and they can get busted for
singing it without paying a royalty. Take a look at movie credits these
days and look at those movies that actually use that song. You'll find a
credit for it in the list of music.
Yeah, everybody knows that song. That doesn't make it public domain.
> > Why? Kinko's isn't an educational institution.
>
>Wrong wrong wrong.
Really! You mean that Kinko's still makes these materials available?
Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991).
I suggest you look it up first.
>As before, you've pulled points out of context to serve
>your point. I'm not sure which case you're specifically referring to (the
>very first case of this sort was Basic Books v. Kinkos in 1991),
That's the one. Like I said...this was about the time I was an
undergrad. The decision was against Kinko's and they were ordered to pay
over half a million dollars in damages as well as court fees and
costs. The settlement finally went to the tune of $1.875 million.
http://www.utsystem.edu/ogc/intellectualproperty/mono1.htm
>but there
>was another more recent case in Michigan (1996)...
Princeton University Press v. Michigan Document Services, 99 F. 3d 1381
(6th Cir. 1996).
Same result: The copy center is not allowed to make copies for professors,
even though the students could do the exact same thing individually.
Both cases are briefly discussed here:
http://www.usg.edu/admin/legal/copyright/copy.html
>And the fair use argument also presumes that for nonprofit educational,
>criticism, and debate purposes, fair use is granted if time is not
>sufficient to ask for permission.
Incorrect.
From the US Copyright Office (http://www.copyright.gov/fls/fairuse.html):
"When it is impracticable to obtain permission, use of copyrighted material
should be avoided unless the doctrine of 'fair use' would clearly apply to
the situation."
In other words, you assume that you are *not* allowed to use
something. From the same source:
"The safest course is always to get permission from the copyright owner
before using copyrighted material. The Copyright Office cannot give this
permission."
>Thus, if an article is printed in the
>Chicago Tribune yesterday about Iraq, and I quote 50% of it in a debate on
>(a more appropriate) mailing list, I'm okay because I don't have time to ask
>for permission and I'm not doing it to reduce the Tribune's market by
>publishing that portion of the article.
Incorrect. In fact, pretty much everything about your example is flawed.
If an article is printed in the Chicago Tribune yesterday about Iraq, you
do not have any rights to copying it because it is clear that it is not
fair use.
Plus, there is no percentage or word count that triggers violations of
copyright. From the same source:
"The distinction between 'fair use' and infringement may be unclear and not
easily defined. There is no specific number of words, lines, or notes that
may safely be taken without permission. Acknowledging the source of the
copyrighted material does not substitute for obtaining permission."
In short, if someone where to follow your advice, he is setting himself up
to get sued.
>Bottom line is, we're all responsible for our posts.
Yep.
And Roger is responsible for this list. You really want to put him in a
position of getting sued?
>You can choose
>to use your legal education (in which state do you practice copyright law?)
>to dissuade others from copying information that may not provide PC
>arguments.
(*chuckle*)
Let's try this again:
Here is the copyright notice for the article Heersink copied:
http://www.capmag.com/company/index.asp
Here is the copyright notice for the article Nimmo copied:
http://www.pfaw.org/pfaw/general/default.aspx?oid=2815
Now tell me: Which one of the above two sources says that you aren't
allowed to copy anything without express permission and which one says that
you can send the article all over god's creation if you want so long as you
provide attribution?
Think carefully....
>And if you choose to never quote a source, that's your
>prerogative. But, correct me if I'm wrong, the gaynet mailing list isn't
>really the place to be having debates over current copyright law.
It is if it wants to remain extant. Copyright law needs to be quite clear
to the posters and the manager. Again, I highly doubt anybody is going to
be coming down on us. We're quite a tiny fraction of internet
traffic. But all it takes is one.
--
Brian P. Evans | I used to work for Bill Gates...
rrh...@ix.netcom.com | ...but I got better.
--
This is message #4268.
Bruce Garrett
In response to D. D Stephen Heersink <dsh...@intergate.com>...
>> There is the durable power of attorney for health care that allows a
>> partner more authority and access to a beloved than any state or
>> federal statute would venture to allow.
M> And how much does it cost to get this power of attorney? And then let's
M> add in the cost of creating wills, the legal expenses of having to fight
M> contestations of that will, inability to adopt your parner's child, etc.,
M> etc.
You know...over the years I have heard a lot of gay hating bigots
wave that durable power of attorney in our faces, as though its a perfectly
acceptible substitute for the right to marry. And it's not as though
they're being helpful or anything.
A friend of mine some years ago, lost his lover to an insidious
disease that required the lover to take steroids in order to keep
breathing. The steroids slowly destroyed his body, and one day he went
into the hospital to take care of a problem he had taken care of many times
before, and this time didn't come back out again. My friend, torn up by
grief, discovered in that moment, that durable power of attorney, at least
in Virginia, ends at death. He was informed by the hospital where is lover
died that his lovers remains were legally the property of his Next Of Kin.
That's next of kin as defined by a state that still has a sodomy law on its
books. That's next of kin as defined by the state that took Sharon Bottoms
flesh and blood from her, on the theory a homosexual shouldn't be allowed
to raise their own children. That's next of kin as defined by a state that
still has laws on its books forbidding restaurants and bars from serving
known homosexuals. Picture the look on my friend's face at a time like
that.
Just last year, a gay man Who Had Durable Power Of Attorney was
denied his dying lover's hospital bedside, right here in Maryland. The
hospital, Maryland Shock Trauma, simply refused to acknowledge it, later
claiming a mixup in paperwork with the hospital that transferred the
patient to them. But all during this man's desperate struggle to be with
his beloved, the hospital kept telling him that they were very sorry, but
they could not allow him in the room, because he was "not family". Later,
they changed their story. The staff they said, were just too busy to allow
the man into the room with his lover. It was only coincidence that at the
precice moment the dying man's "legal" family arrived at the hospital,
the staff suddenly had time to let them all into the room.
But by then it was too late. The man had passed into a coma. He
died shortly after.
http://www.inform.umd.edu/News/Diamondback/archives/2002/03/08/news3.html
http://www.aslaveslove.com/rose2/vol_19_news3.html
http://www.brucegarrett.com/cartoon_3_4_2002_a.htm
These "other options available" do one thing really well. They
give bigots a little cover, a little plausible deniability, a way of calmly
and reasonably assuring everyone, that all they Really want is to protect
the sanctity of traditional marriage, and not simply to stick a knife in
the gut of people they despise, for the pleasure of watching them bleed.
-Bruce Garrett
http://www.brucegarrett.com
--
This is message #4270.
D Stephen Heersink
writes as though some of us think that a Durable Power of Attorney is
sufficient to warrant the exclusion of marriage. I am NOT one of those
people, even though I strongly believe in the force of the DPA.
In California, in addition to the DPA for health care decisions,
conservatorship of the person is also granted if the person so desires
it. When time came for my beloved of eighteen years to die, his
parents wanted to take total control of the situation as if my
interests did not matter.
Well, my interests did matter, and I had BOTH the DPA for health care
decisions AND the rights of conservatorship. When things started to
become ugly, I simply referred the health care establishment to the
document, and sad to say, but rightfully done, I, not they, got my
way. I even had to give them visitation rights as they were becoming
bellicose, as we thought they might.
The funeral was done MY way, which is to say OUR way, and not my
partner's parents' way. The father tried to thwart my rights, but the
DPA prevailed. Blood may be thicker than paper, but in my case the
paper prevailed.
I don't wish such ugly conclusions on anyone, and gratefully, while my
partner and I many years earlier considered the possibilities that
became inevitabilities, we rationally came up with a document that
only had to be witnessed by two people, and the document was provided
by the State Bar Ass'n of California. The father got nowhere --
bitterly.
NONE of this is to say that DPAs are reason enough not to legalize
marriage between any two consenting adults. But marriage at this
juncture in history is still an objective to obtain, not a victory yet
won. In the meantime, lawyers and State Bar Ass'ns. can assist gays
and lesbians with powerful documents that in some ways give us the
rights of marriage. It's not a substitute, but it's a powerful
instrument until that ultimate day.
Kind regards,
_____________________
D. Stephen Heersink
San Francisco
dsh...@intergate.com
--
This is message #4273.
Mathemagician
>Well, my interests did matter, and I had BOTH the DPA for health care
>decisions AND the rights of conservatorship.
Yet another contract.
Yet another fee.
Yet another hassle.
Yet another chance for an uneducated hospital worker to ignore your rights.
Yet another attempt for bigots to make life difficult.
>When things started to
>become ugly, I simply referred the health care establishment to the
>document, and sad to say, but rightfully done, I, not they, got my
>way.
Why did things have to get ugly? Why did you have to drag out a piece of
paper proving your relationship? Why did you have to fight at all? The
family is one thing, but the health care establishment?
>NONE of this is to say that DPAs are reason enough not to legalize
>marriage between any two consenting adults.
The point is that DPAs are not even a stop-gap solution. It costs too
much, it requires too many to get everything covered, and runs the risk of
the institution not understanding the point.
Compare this to telling the doctor, "I'm his husband." Nobody questions
that and everybody knows what that means.
--
Brian P. Evans | I used to work for Bill Gates...
rrh...@ix.netcom.com | ...but I got better.
--
This is message #4274.
Warriorsmk
Your points on DPAs are well stated. We should never in times of great stress have to depend on a piece of paper or have to fight for our rights.
In Virginia I've had to go a step further and spend yet more money by having a separate statement that when I die my lover has soul custody of my body and its disposal.
When I've had my quad by-pass surgery and aneurysm repair the nurse in the family waiting area refused to tell Steve if I was alive or dead or any details of my condition during what was a 12 hour procedure.
Thank G-d that we have all gay doctors and surgeons. Steve called our internest who was thoughtful enough to come to the hospital and search out the Director who put the "idiot" in her place.
Steve during a life threatening operation should never have had to go through all those hoops!
The cost of these necessary (for us) documents is sky high and if you go to an attorney who is familiar with what is necessary and spends the time to make your documents iron clad as possible the cost increases proportionately.
Marc
WarriorsMk
-----------------------------------
Manners are Power in Reserve
________________________________________________________________
Sign Up for Juno Platinum Internet Access Today
Only $9.95 per month!
Visit www.juno.com
--
This is message #4275.
Faren D'Abell
legalizing gay marriage ("we shouldn't want to be part of that institution",
"If I wanted to get married, I'd be straight"). I've heard the arguments
from several people. 1) What arguments have you all heard from gay people
against gay marriage; and 2) Does anyone know of any organizations or gay
leaders who are on the record as anti-gay marriage?
Faren D'Abell
--
This is message #4277.
Ezekiel Krahlin
<<
When I've had my quad by-pass surgery and aneurysm repair the nurse in the family waiting area refused to tell Steve if I was alive or dead or any details of my condition during what was a 12 hour procedure.
>>
Oh, I get it: two wealthy guppies arguing over their health insurance "problems". Try living WITHOUT any insurance whatsoever (or useless policies 'cause you're not rich enough)...then get back to us. I have a hunch that by now, far MORE participants to Gaynet have LOST what remains of their tattered health insurance...thus even being able to DISCUSS the matter on your gentleman's level is a privilege exceedingly RARE.
News flash: these hospitals are more likely to let me die on a guerney, than provide emergency triage to save my life. Same goes for MOST on lousy (or no) health coverage. So perish the though of any sort of treatment for things like triple bypass...I just think it would be nice for the good doctors/nurses/aides to stop poor patients from bleeding to death, while waiting for some sort of humane treatment (if it ever comes along).
<<
Thank G-d that we have all gay doctors and surgeons.
>>
Why, I've had some gay doctors, therapists, and employers who were downright malicious in their mistreatment of me, and any other activist-type queer person. So much so, I am more on my guard with a gay practitioner, than I am with a straight one. Such lukewarm gay friends turn out to be nothing more than "friendly fire"...which is one way you can fall into enemy hands.
The danger with gay doctors is so many are real ELITISTS and stereotype us activists and poor queers as "vermin" to be mistreated at their wishes. So instead of homophobia (even when internalized), as a queer patient I've experienced medical neglect and mistreatment due to CLASS WARFARE...which cuts across all boundaries, including within our LGBT family.
The answer for me, is now: AVOID any and all medical practitioners. If they're halfway decent, they'll sock you with a big fat bill that will wipe out your entire finances and make you homeless...or they'll simply experiment upon you, or kill you (or both, in that order of course).
<<
_________
Sign Up for Juno Platinum Internet Access Today
Only $9.95 per month!
Visit www.juno.com
>>
Right, and suffer Juno's outrageous requirements to have access to your computer(s) 24/7, including when you're asleep! A MUCH BETTER ISP is this one:
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---
For a good time, browse:
http://surf.to/gaybible
--
This is message #4279.
Bruce Garrett
> Oh, I get it: two wealthy guppies arguing over their health insurance
> "problems". Try living WITHOUT any insurance whatsoever (or useless
> policies 'cause you're not rich enough)...then get back to us.
> News flash: these hospitals are more likely to let me die on a guerney,
> than provide emergency triage to save my life.
Have you considered "Open Heart Surgery For Dummies"?
-Bruce Garrett
http://www.brucegarrett.com
--
This is message #4282.
geminiwalker
that says it all in the book, "Sisters, Sexperts and
Queers". I'll be happy to dig it out if anybody is
interested.
...geminiwalker
__________________________________________________
Do you Yahoo!?
New DSL Internet Access from SBC & Yahoo!
http://sbc.yahoo.com
--
This is message #4283.
Faren D'Abell
Equality across the board can hardly be argued with. I was listening to
Bush espouse the virtues of his tax plan this morning and he discussed a few
of the benefits he's proposing for married couples (I didn't pay much
attention at that point, but the fact that he wants to give married heteros
more benefits was the salient point to me).
I'll take a look at the library and see if that book's available there. If
you have it around, let me know which essay it was that was relevant.
Thanks
Faren
> -----Original Message-----
> From: gaynet...@groups.queernet.org
> [mailto:gaynet...@groups.queernet.org]On Behalf Of geminiwalker
> Sent: Thursday, January 09, 2003 4:37 PM
> To: gay...@groups.queernet.org
> Subject: Re: [gaynet] Marriage
>
>
> I'm anti-marriage in general. There's a great essay
> that says it all in the book, "Sisters, Sexperts and
> Queers". I'll be happy to dig it out if anybody is
> interested.
>
> ...geminiwalker
>
--
This is message #4284.
D Stephen Heersink
back in the 1980s, and our next door neighbors were witnesses to the
facts. And, while I don't defend DPAs as a reason not to extend
marriage, the DPA more or less forced us to confront our deaths and to
prepare and plan for them. It was the planning and examination of what
each of us wanted that took the time. The form itself is a breeze.
In many cases, married couples have DPAs to substantiate DNR
hospitalization authorization, and in more complex cases, a written
rationale for their care if a partner is unable to express his/her own
wishes. In many cases, even a spouse cannot make decisions for the
other spouse without a DPA. Also, there will come a time when one of
the other partners will need a DPA for his or her own death. So the
claim that DPAs are a substitute for marriage simply isn't the case;
even married individuals have them.
Kind regards,
_____________________
D. Stephen Heersink
San Francisco
dsh...@intergate.com
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This is message #4285.