Life Lessons I Learned From Flying Airplanes

About 20 years ago, my wife gave me an introductory flying lesson as a birthday present. I loved the experience and was soon on my way to earning my private pilot’s license. I was fortunate to meet an exceptional flight instructor, Tony Hicks, while taking ground school through the Florida State University Flying Club. Tony, a former Navy F-14 Tomcat pilot, was a great instructor because he not only taught the mechanics of flying an airplane, but also the psychology of being a pilot. With Tony’s guidance and training I was granted my Private Pilot’s license on September 11, 1998. I enjoyed flying regularly until the events of another September 11th three years later forever changed general aviation. Although I’ve flown a few times since then, the cost of aviation, plus the loss of freedom associated with increased security, have pretty much grounded me, and many of my pilot friends. However, the lessons of aviation have stayed with me and I often think of aviation problem-solving when facing a problem or challenging situation on the ground. Here are a few of the lessons that often go through my head:

Fly the airplane – No matter what happens in the air, a pilot’s first and foremost job is always to fly the airplane. It doesn’t matter if the wing is on fire; you fly the airplane first, and then worry about the fire. In 1972 the crew of an Eastern Airlines L-1011 violated this rule with disastrous consequences when they flew their aircraft into the ground after they became focused on trouble-shooting a burned-out landing-gear indicator light.  This is true in life too.  Paying attention to our task and our mission prevents unnecessary problems and failures.  Things are going to go wrong sometimes.  Our job is to stay focused and not create disasters by neglecting the fundamentals while we try to solve what are often minor problems.

Know your Limits – Not all pilots are the same. Experience, training, and proper equipment can safely take one pilot where another would be at great risk.  Just because you have an instrument rating and spent some time in the clouds doesn’t mean that you’re ready to fly an instrument approach at an unfamiliar airport after a 3 hour flight, with 200-foot ceilings, gusting winds, rain, and ¼ mile visibility in a Cessna. However, you might be fine at your home field with 1000 ft. ceilings, 1.5 miles visibility, and light winds. It’s a pilot’s job to know his or her limits and know that those limits aren’t constant. Recent experience, proper equipment, and being healthy and rested all impact on a pilot’s limits. It’s true for life on the ground too.  Sometimes it’s better to wait until conditions have improved, or we have better prepared,  before launching a new project or trying something new. There are limits to the number, type, and severity of challenges we can all handle.

Aviate, Navigate, Communicate – This is the prioritization for pilots when things go wrong. One of the best examples of this is Captain Sullenberger and the Hudson River landing. If you listen to this recording of his communications with air traffic control, it’s clear that his focus isn’t on talking with the control tower but on flying the aircraft and navigation. The reason for this is, there’s very little an air traffic controller can do to assist in an emergency other than get other aircraft out of the way.  A pilot’s first priority remains flying the aircraft, the second job is to know where the aircraft is, and where it’s going. Once you have those down, then you worry about talking to the tower. This is true in life too, when things go wrong our first job is to maintain personal control and do our part as best we can. Next, we need to figure out where we are, and where we want to go. Lastly, we can reach out to trusted others for guidance and assistance.

Collaboration – How to Thrive When Others Are Dying

I’ve just returned from a visit to Los Angeles with my wife where we celebrated Rosh Hashanah, the Jewish New Year. During our visit we attended two different synagogues, both of which appear to be experiencing exponential growth and vibrancy at a time when studies show that overall synagogue attendance and membership are in rapid decline. Of course, it’s not just synagogues that are in crisis these days. For example, the Christian Post reports that “Methodism in the U.S. has lost membership every year since 1964”. The Presbyterian Church reports that it lost 15% of its membership between 2012 and 2014. Moreover, it’s not just religious institutions which are suffering membership losses. In his book Bowling Alone, author Robert D. Putnam examines the severe membership declines in a wide array of organizations such as political groups, civic organizations, fraternal lodges, religious groups, and service clubs. He describes this decline as a destruction of the social fabric of our society. I agree with him and I’ve been trying figure out what is driving this decline and how it can be reversed. This is issue is so important to me that I actually take notes when I visit synagogues regarding the size and composition of the people attending, the nature of the service, and other characteristics that are notable to me.

I want to tell you about these two synagogues because I believe they reveal some important truths about the changes in our world. The two synagogues I visited at first appear to be very different. The first, Beit T’Shuvah, is a synagogue led by an ex-con turned Rabbi, Mark Borovitz, and grew out of an addiction treatment center that is attached to the synagogue. It’s very focused on addiction recovery and, while the crowd is predominantly under the age of 40, there are plenty of people of all ages. The second synagogue is iKar, and it is led by a dynamic Rabbi, Sharon Brous. iKar does not own a building, but attracts hundreds of people of all ages to its services. Neither of these two synagogues are old legacy institutions. iKar was started in 2004, and Beit T’Shuvah about 25 years ago. The weekly attendance at both these institutions is in the hundreds and for holidays grows beyond a thousand.

One of the factors that I see in common between these two institutions that I believe is allowing them to thrive when their cohorts are withering and dying is that they are collaborative in nature. These are not authoritarian institutions run in a top-down model by the clergy and board of directors who insist upon complete and total control. Instead, the synagogues seem to exist for the purpose of providing a space or mechanism through which the members can create their own Jewish experiences. The clergy are facilitators of the experience rather than providers of the experience. This is very different from my experience where people attending services are passive participants whose participation is limited to responsive readings and where synagogue boards concern themselves with issues of whether or not congregants should be allowed to wear blue jeans to services on the basis of maintaining tradition and without consideration of what experience is being sought by the members.

The services I attended were very participatory, allowing member input and expression. This was especially true of Beit T’Shuvah, where members frequently got up to share their stories and give their reflections on readings. Musically, these two synagogues have moved far beyond the operatic cantorial solo and utilize music that is engaging and participatory. Although it has an excellent band, at Beit T’Shuvah members often get up to perform songs they’ve written or to perform with the band. At iKar, drumming combined with traditional lyrics provides a musical experience that draws in the audience to sing along, dance, and move expressively. At both synagogues when people are called up to help lead or give readings they are allowed an opportunity for self-expression rather than being limited to reading words on a page. The result of this is that the experience is not simply something that is scripted out by the Rabbi or Cantor, but is dynamic and is influenced by the people attending. The congregation is no longer a passive recipient, but is an engaged partner in creating the service experience.

A few years ago, I was at a legal technology conference where the keynote speaker was Don Tapscott, who spoke about the transition to a collaborative society and who wrote:

“Collaboration is important not just because it’s a better way to learn. The spirit of collaboration is penetrating every institution and all of our lives. So learning to collaborate is part of equipping yourself for effectiveness, problem solving, innovation, and life-long learning in an ever-changing networked economy.”

In my law practice I sought to become more collaborative and I found that it creates very happy clients. I now use software such as Mycaseinc and clio that allow me to share files with clients, exchange messages, and to better bring them into the decision-making process in their cases. Rather than being simply the problem-solver for my clients, I now see myself as in partnership with them, my role being a resource and advocate, as we seek to find a solution to their legal need or concern.

We live in a new era, where old models of authority and top-down structures are being rejected. Sadly, many of our social institutions have resisted the change to a more collaborative world, and they’ve been steadily paying the price as people vote “no” with their feet and head for the door. My experience with the two synagogues leads me to believe that there is a great need out there for religious and civic institutions. I believe people are craving community and connection, but I don’t think most will find it in places of arbitrary authority where they are expected to passively consume the experience. The question is, can the old institutions adapt to this change? Or will their demise be required so that new institutions can arise and meet the need?

 

Rosh Hashanah: Finding Connection To A Meaningful Life

I am presently with my wife in Los Angeles, California where we are preparing to spend our second year celebrating Rosh Hashanah at Congregation Beit T’Shuvah.  We are both looking forward to seeing a young man from Tallahassee helping to lead the services at this synagogue.  A year ago this young man was at a very low point in his life, but thanks to the kindness and generosity of Beit T’Shuvah  he is finding a new lease on life.

It is always interesting to me to see how life evolves.  What follows below is a talk I gave at the very beginning of Rosh Hashanah 2013 in Tallahassee.  In the talk I mention Beit T’Shuvah and the work they are doing.  Little did I realize that my curiosity would take me on such an incredible journey that has created many wonderful new relationships, not just for me, but for a number of people in my life.  I actually got to meet the young woman I quote in the talk and she’s an incredible person who is doing amazing work in her life.  I hope you enjoy this look back at my writing from 2 years ago.:

Rosh Hashanah Talk 2013

Last year, a few weeks after we finished the High Holy Days I gave a talk from this very bima on why I don’t like the High Holy Days and described my struggle to find meaning in the rituals and words in the High Holy Day prayer book. In a way my talk was somewhat of a challenge to our tradition and maybe even to G-d to help me find some meaning the process we’re about to go through. Let me tell that if you come into a synagogue, stand before your community, and directly challenge G-d to help you understand something, you’re probably opening yourself up to some interesting opportunities for growth.

And that’s what happened for me, and through my experience I got a new perspective on not only why we observe the High Holy Days, but also why we even come here at all.

The answer, I have learned, is actually very simple. It’s all about connection.

For me all this understanding started with an email to my Mother-in-law. You know that in any good Jewish story there has be a mother or a mother-in-law. So, I was writing my Mother-in-law an email and I was telling her a story about some challenges people close to me faced many years ago. I’d told this story many times before, but this time when I hit send, I’m felt uncomfortable about what I had written. As I thought about my discomfort I realized that while everything that I’d told my Mother in law in the email is true, I haven’t really been honest in what I shared with her because the story I told her was carefully edited to leave out any of the struggles that I encountered or any of the failures I experienced. I was quite distressed when I realized that I had written myself out of what really was an important part of my life story.

It occurs to me that one of the challenges in life, at least for me, and I suspect for many of you, is to show up and tell our stories in the most honest way possible, disclosing not just our strengths and victories, but also our struggles and failures. I’ve certainly seen this in my work as a nurse and as an attorney. People will commonly talk around and evade disclosing information that reveals their struggles and imperfections. But why is this such a challenge? Don’t we all want to be authentic honest people?

To understand this further, I looked to the work of researcher Dr. Brene Brown who studies shame and vulnerability. I’m told that Brene Brown’s TED talk on vulnerability is one of the top ten TED talks of all time and she was named one of 50 most influential women of 2009. Brene Brown says we as human-beings are hard wired for connection with other human-beings, but that shame, which is really fear of loss of connection, creates a barrier to connection, and that to fully connect we must be willing to be vulnerable and tell our stories in a wholehearted way.

She writes: “We must remember that our worthiness, that core belief that we are enough, comes only when we live inside our story. We either own our stories (even the messy ones), or we stand outside of them – denying our vulnerabilities and imperfections, orphaning the parts of us that don’t fit in with who/what we think we’re supposed to be, and hustling for other people’s approval of our worthiness”. Brown says that in seeking avoid vulnerability we numb ourselves, but we’re not just numbing shame and vulnerability, we’re also numbing joy, love, and creativity.

A few days ago we gathered for Selihot and prior to the service we watched a film called G-Dog about a Jesuit Priest name Father Greg Boyle, who I met this summer that Chautauqua Institution. I’ve learned a lot about the impact of shame and the power of overcoming shame to reach connection from Father Boyle’s work. I highly recommend his book Tatoos on the Heart. Father Boyle runs, Homeboy Industries,  the largest most successful gang intervention program in the United States. In describing how he helps turn a 70% recidivism rate into a 70% success rate that has helped decrease gang activity in Los Angeles by 50% he writes: “ You stand with the least likely to succeed until success is succeeded by something more valuable: kinship. You stand with the belligerent, the surly, and the badly behaved until bad behavior is recognized for what it is; the vocabulary of the deeply wounded and those whose burdens are more than they can bear”.   It’s about overcoming shame and developing connection.

Similar work is happening in the Jewish community with the work of Rabbi Mark Borowitz, himself a former addict, who now leads a congregation whose work is a 120 bed residential treatment facility. The name of the facility, Beit T’shuvah. The house of return. Did you know that Jewish addicts and convicts exist? At Shomrei Torah we learned this several months ago when a Jewish inmate wrote to us and requested prayer books. I am very proud to say we answered the call. Unfortunately, the stories of our fellow Jews who struggle with addiction or who have had legal troubles rarely get told in our synagogues. Sadly, even when those stories get told, we often act as if they’re anomalies rather than real problems in our community. Consider what one young woman from Beit T’shuvah wrote:

As a young “nice Jewish girl” from Calabasas, to many people I am not the usual addict. Yet, still people do not want to hear what I have to say. They head nod me off until I shut up and then they give me the “not in my house” speech. Usually goes along the lines of my child gets great grades, they are in all AP’s, they are involved in extracurricular activities, we have Shabbat every Friday, or another excuse to make me believe they are perfect. But I too had all of those traits, yet I checked into rehab at 18 years old.

We all have issues. Every family is dysfunctional in its own way. The question is when do we stop leaving the dirty laundry at home and start talking about our problems? Judaism is rich in sources of comfort and teachings about the possibilities for change. When it comes to the social ills of our own, however, we often seem to prefer denial. People are coming into treatment younger and younger and from all different types of homes. But how can we stop it? My advice is to stop living in denial. Break the taboo and start talking about personal issues and stop hiding behind a mask. Learn how to cope in a healthy way with issues rather than just pretending they don’t exist. Without learning healthy coping mechanisms we turn to escaping through drugs, alcohol, gambling, shopping, work, food, etc. Addiction does not discriminate. If kids and adults believe that this disease CAN happen in their own backyard, they will become more aware of how their actions affect their lives

Bringing our troubles into the synagogue, telling our stories, it’s really what why we’re here. Sure, there are lots of reasons why people come to a synagogue. Some of us come to socialize, some for rituals, some for a sense of ethnicity, but at the core, it’s all about connection. Jewish philosopher Martin Buber wrote: “when two people relate to each other authentically and humanly, God is the electricity that surges between them.”

Rabbi Adderett Drucker recently recommended a book to me, and I want to recommend this book to every person who wants to strengthen and grow our community. The book is called “Relational Judaism” by Ron Wolfson and the basic premise is that it doesn’t matter how beautiful your building is, how many programs you offer, how charismatic your rabbi is, or how pretty your website is. None of that matters, what does matter is whether the people who come through your doors find a truly welcoming community where they find connection and build relationships? We need to ask are people, including newcomers, sharing Shabbos dinners, dinning in Succahs together, gathering to study, and is your synagogue a place where people can show up and share their story, and be heard. Is your congregation a safe place for people to tell their story?

One of the most powerful stories in the book is about a synagogue where huge overdone parties had become the rule but as soon the Bar/Bat Mitzvah was over the families left to never be seen again. In that synagogue they brought the parents of children preparing for Bar/Bat Mitzvah’s together to share their Bar/Bat Mitzvah stories and the author writes: “We realized that they were not happy with what the expectation were, but that they felt helpless to change it. They didn’t want their child to be the only one not having dancers, the games, etc.” As the families shared their stories, the conversation moved from the subject of parties, to what kind of children did they want to raise, and what is the purpose of the Bar/Bat Mitzvah.

The result of those conversations was not only to change the way the synagogue did Bar/Bat Mitzvahs, but it also turned their previous 80% drop-out rate of post bar/bat mitzvah families into an 80% retention rate. People changed from seeing their synagogue as a place of transactions, such as bar/bat mitzvah training and celebrations, to a place where they were seen and could share stories and experiences with other people. They had become a place of connection.

As we begin our journey through the High Holy Days, we refer time and time again to repentance and t’shuva, but what is this? I used to think that T’shuva meant apology, but that’s incorrect. The word for apology is actually “ sheliot”. T’shuva means “to return”, but return to what? I think it’s a return to connection.

William Tyndale, who coined the term “Day of Attonement” in his 1530 translation of the Hebrew Bible implied that sin is a matter of estrangement, of disconnection.   Maimonides writes that Teshuva “brings close those who are far off” and Rabbi Joseph Soloveitchek in commenting on Maimonides’s teaching defines sin as that which creates distance between a person and G-d.

There’s a Hasidic teaching that says that every human-being is tied to G-d with a rope. If the rope breaks, but is later fixed with a knot, then that individual is connected ever closer to G-d than if there never were a break in the rope. Thus, errors, mistakes, and failures have the potential of drawing us ever closer to G-d.

My readings on the High Holy Days lead me to the idea that the purpose of t’shuva and repentance is much greater than what most of us consider to be “sinful acts”. I’m seeing the purpose as a return to authenticity and a promise that despite our short-comings, imperfections, and failures, we are worthy of love and connection whether it be with G-d or with our community.

In closing, as we go through the next 8 days, I invite you to look at this as a process of connection, not of self-flagellation. In just over a week we’ll fast, not to punish ourselves, but to render ourselves vulnerable, so that when stand before G-d and recite the al chet prayer ten times, not listing our sins as is commonly thought, because this actually translates as the times “we missed the mark”, we do so with a whole heart showing our true imperfect selves.  This is our opportunity to share our stories, to become more authentic, to allow ourselves to be vulnerable, and in the process transform both ourselves and our community. Let’s connect.

Labor Day – The Rest of the Story

For most of us Labor Day marks the end of summer, one last long weekend to enjoy sunshine and cookouts with friends and family. Rarely do we ask where did this holiday come from and what does it commemorate? I don’t recall the history of Labor Day being taught in school and beyond advice for avoiding sunburn at the beach it doesn’t get much press attention. I think it’s a safe bet that few of us are aware of the fascinating and complex origins of this national holiday.

Labor Day, as an American holiday, has its roots in the labor movement of the late 19th century. The years after the Civil War were a period of incredible economic expansion and industrialization in the United States. Massive waves of immigrants were landing on our shores as workers arrived to toil in factories, logging, mining, and railroads. Working conditions were often very hazardous, wages were low, the labor market corrupt, and child labor was rampant. Early labor unions were formed to try to improve the lives for workers through solidarity. Individuals who identified as members of anarchist, socialist, and even communist groups organized and led many of these early efforts.

One important event leading to the creation of Labor Day occurred on May 4, 1886 in Haymarket Square, Chicago, Illinois. The event was a worker rally organized by a group of anarchists in support of the eight-hour workday. In many ways the rally was a complete failure as many of the speakers failed to appear and the expected crowd of 20,000 was only about 2,500. It was near the end of the rally, when only about 200 people remained that more than 100 police officers armed with rifles showed up to break up the rally. An unknown person then threw a bomb at the police, who panicked and opened fire, killing some of their own. In the end seven police officers and four of the workers were dead and scores were wounded.

The government responded to this tragedy by declaring martial law throughout the entire nation and then arresting large numbers of labor leaders including the anarchist organizers of the rally. Eight organizers of the rally were charged with murder despite there being no evidence that they had anything to do with the bomb and the fact that all but two of them were not present when the bomb exploded. The two who were present were on the podium and couldn’t have thrown the bomb. The eight anarchist organizers were put on trial and all were convicted in what most workers considered to be a horribly unfair trial. It is said that the company bosses selected the names for the jury pool and the Chicago Tribune is said to have offered money to the jury if they convicted. Five of the eight convicted anarchists were executed by hanging. The surviving three fared better when they were later pardoned after a new governor, John P. Altgeld, was elected. Governor Altgeld reviewed the case, found there to be no evidence to support the convictions, and granted pardons to the survivors.

This event became known as the “Haymarket Affair” and it became a rallying point for workers who began gathering every May 1st to remember the martyrs of the Haymarket Affair. This annual event grew into what is known as either “May Day” or “International Workers Day” which is celebrated on May 1st of each year. To this day, many countries throughout the world, including all the major industrial countries except the United States, celebrate some sort of worker’s holiday on May 1st.

May1stLaborDayThe creation of the U.S. federal holiday of Labor Day occurred less than 10 years after the Haymarket affair, following yet even more workers’ deaths at the hands of the government. This time it was railroad workers who were striking against the Pullman Palace Car Company. The workers were led by Eugene Debs, a founder of the Industrial Workers of the World (Wobblies), and who would later go onto become the leading socialist figure in the United States. The Pullman Company petitioned the Courts and obtained an injunction against the strike on the basis that, because the company carried mail on its trains, the worker’s strike was causing disruption of the mail. President Grover Cleveland then sent in the U.S. Army and the U.S. Marshalls to break up the strike. The Army opened fire on the striking workers, killing 30 and wounding 57. This violent suppression of the strike created conflict between President Cleveland and the labor movement. Less than six days after the end of the Pullman Strike, President Cleveland and Congress, both seeking to find political conciliation with the labor movement, pushed through legislation creating the national Labor Day holiday. However, to ensure that the holiday did not continue to become a memorial to the martyrs of the Haymarket Affair, President Cleveland moved the holiday from May 1st to its current date in September. President Cleveland appears to have achieved his goal, because few Americans today have any knowledge of the Haymarket Affair and few have ever heard of the deaths of the workers during the Pullman Strike.

The censorship of history continues to this day. The US Department of Labor website describes the holiday as “a creation of the labor movement and is dedicated to the social and economic achievements of American workers. It constitutes of a yearly national tribute to the contributions workers have made to the strength, prosperity, and well-being of our country.” It is telling that the Department of Labor website fails to mention the government’s bloody roles in the Haymarket Affair and the Pullman strike and how those two events contributed to the creation of the holiday.

 

Is Kim Davis A Truly Willing Martyr?

I wasn’t planning to write a blog post about Kentucky Clerk of Court Kim Davis and her refusal to issue marriage licenses to same sex couples. I don’t see the situation as being especially complicated or interesting from a legal standpoint. I feel that her recent jailing was highly predictable. On the surface, this situation seems to be little more than a woman who seeks a special exemption for herself from  the  performance of her elected duties on the basis of religious belief. However,  when reading an ABC news report regarding her testimony during the contempt hearing, something jumped out at me that makes me suspect that this situation is  more complicated and I’d like to discuss what I think might be going on.

ABC news reported: “’I did a lot of vile and wicked things in my past,’ Davis said when asked about her life before becoming a Christian in 2011.” I think this is an important statement that tells us a lot about how Mrs. Davis sees herself and the role her religious identity plays in her life. Clearly, Mrs. Davis carries a great deal of shame about prior decisions in her life and she sees her religious conversion as a return to worthiness. She’s seeking redemption, a way to undo the mistakes of her past, through her willingness to be a martyr.

As Jewish person I can get my head around this idea of redemption. People who follow my religious tradition are currently in the month of Elul, which is a time of reflection in preparation for Rosh Hashanah and Yom Kippur, two holidays in which there is great focus on redemption and repentance. Judaism recognizes two forms of redemption. One form of redemption involves healing the relationship between the individual and G-d, the other form involves healing the relationship between ourselves and other people, especially those whom we may have harmed. I believe that redemption is a universal human need. We all make mistakes in our lives and sometimes we harm others as a result of our mistakes.   It is important that we find some sort of mechanism that  allows us to repair whatever damage we may have caused and to move forward without carrying endless guilt.

It appears that Mrs. Davis believes that having even the most remote connection to same sex marriages will impair her relationship with G-d, and that she most prove her love and gratitude to G-d through self-sacrifice i.e. martyrdom.  I can’t help but feel that this martyrdom is rooted in an unhealthy degree of self-righteousness that is contrary to the spiritual renewal of redemption that she seems to be seeking. During her conversations with the same sex couples to whom she’s refusing marriage licenses,  her facial expressions are, at best, condescending and dismissive of their emotional pain.

Is there evidence to suggest that she’s being manipulated? There certainly is a crowd of opportunists surrounding her, for example, politicians like Mike Huckabee, who is championing her cause as  judicial tyranny and as a war on Christians . According to CNN, Ted Cruz recently issued a written statement that this is an attempt to drive Christians from public office. I also wonder about the religious education and guidance she is receiving from the clergy and elders of her Church, who generally have no formal religious training, do not attend any seminary, and are exclusively male. Is her situation different from those who, while seeking religious purpose and redemption, are manipulated into being suicide bombers or jihadists by those seeking political and religious power and control?

Politicians have no obligation not to exploit people or their causes. Likewise there is no legal duty of loyalty, or even competency, for a clergy person. However, there are ethical obligations for lawyers, and I have to wonder what role her lawyers may be playing in promoting her martyrdom? As an elected official involved in a dispute regarding the policies and procedures in her office, one might expect that she is represented by the County Attorney or a law firm that routinely represents elected officials. This is not the case for Mrs. Davis, who is being represented by lawyers through Liberty Counsel, a group that describes its purpose on its webpage as, “to preserve religious liberty and help create and maintain a society in which everyone will have the opportunity to discover the truth that will give true freedom.” The Southern Poverty Law Center has labeled Liberty Counsel as an anti-LGBT hate group. According to the Southern Poverty Law Center, Liberty Counsel has championed causes such as removing hate crime legislation. The Liberty Counsel website contains a Marriage Solidarity Statement in which they claim “the Supreme Court has no authority to redefine marriage and thereby weaken both the family and society.”

Is there a conflict of interest between Liberty Counsel’s agenda and providing competent legal advice to their client, Mrs. Davis? That is, can Liberty Counsel competently advise  Kim Davis regarding her best interests, or is it about promoting their political agenda with her being a martyr to the cause? This important question was raised in a recent Slate article in which the columnist observes:

“Yet the Liberty Counsel didn’t mind putting their client at risk—perhaps because the idea of a middle-aged woman being hauled off to jail for purportedly following her conscience would send thousands of anti-gay Americans reaching for their pitchforks (and checkbooks).”

A lawyer’s duty paramount duty is always to the client. The question that arises in many cases, such as Mrs. Davis’ where a third party is providing funding, is who is the client? Are her lawyers working for the “ministry”, which has its own agenda, or for Mrs. Davis whose interests might align in some ways, but in other ways might be at odds with those of the ministry? Such a problem is not unique in the law, insurance defense attorneys sometimes face a similar dilemma, especially when the insurance company wishes to settle or contest a claim and the client being sued does not. However, in cases involving insurance defense lawyers there is some protection for the client in that if an insurance company refuses to settle a claim and the client is forced to trial and loses, the insurance company then has to indemnify the client for the full amount regardless of the policy limits. In Mrs. Davis’ case, the stakes are not simply monetary and it’s not Liberty Counsel who is going to jail or who will be burdened with a record of contempt, it is only Mrs. Davis. I note that while Liberty Counsel is standing in front of the national press promoting its cause of suppressing rights for gays and lesbians, no court has found merit in any of the claims it has raised so far, and their client is sitting in a jail cell.

There is another ethical obligation of an attorney to keep in mind when advising a client such as Mrs. Davis. As a lawyer I am not permitted to advise my client to disregard or violate a Court order. I can agree with my client that an order is unfair or unjust, but I cannot counsel a client to violate a judicial order. This is my obligation as an officer of the Court. I must give respect to judicial rulings, even when I don’t agree with those rulings. I am free to challenge them on appeal, but I am not free to advise my client to disobey those rulings. As an outside observer of this case I have no idea what  discussions have taken place between Mrs. Davis and her lawyers, but I’m left wondering what counsel she is actually receiving regarding complying with the Judge’s order? Is a client well served by lawyers whose focus may be their interpretation of Biblical law rather than the secular law of the Court? I think that an argument can be made that, unless you are able to encourage your client to follow the orders of the Court, you are not able to render competent legal counsel to the client.

I don’t agree with Mrs. Davis’ argument that her religious beliefs permit her to refuse to allow her office to issue marriage licenses to same sex couples. I feel that as a matter of law it fails on many levels. However, I’m really wondering whether or not her need for redemption is making her susceptible to the manipulation of those who have surrounded her in this cause. Of course, in the end, it will be Mrs. Davis who will bear the costs.

 

5 Life Lessons I’ve Learned Practicing Law

5 Lessons I've Learned

One of my things I enjoy most about working as an attorney is that people share their stories with me. As a lawyer I hear stories about relationships, about business transactions, about careers, and just about any other aspect of life you can think of. I find these stories fascinating and I feel very honored that my clients have trusted me with information about some of the most private aspects of their lives.

I don’t know if it’s the same for all lawyers, or for lawyers who spend their days doing things other than litigation, but I feel that I’ve learned a lot about the world and life from the practice of law and the stories my clients have shared with me. The list below is some of the lessons I’ve learned that I believe have helped me to grow as a person:

1.) People are multidimensional – Whatever greatness or failure we may experience in our lives, we’re all much more than our current circumstance or single events. People sometimes make terrible mistakes and cause great harm to themselves or others, but even those of us with the worst track records have aspects that are worthy of respect and the potential for improvement. Likewise, many wildly successful people who do great things in the world also struggle with great imperfections.

2.) You can win an argument and still lose – It is normal to experience disagreements in our relationships and it’s very tempting to do all we can to prove to others that our position is the right or correct one. We trial lawyers, who argue for a living, are very susceptible to doing this in our personal relationships. The problem is that this comes at the expense of relationships. When we seek to win an argument and insist upon proving the other person wrong, we create distance between us and other person. People generally don’t want to be in a relationship with someone who constantly tells them they’re wrong or points out their shortcomings. Granted, there are times when it’s important to speak up, especially where great harm will result. However, for minor issues, it often does far more harm than good. Remember, it’s not our job to think for or fix other people. Ultimately, in relationships, you can win all the battles, but still end up loosing the war.

3.) Disrespect creates deep wounds – Believe it or not, most people come to see me because they feel they’ve been treated disrespectfully. Rarely do I ever have someone come into my office and tell me that a creditor violated the truth in lending act or engaged in an unfair and deceptive trade practice. Instead, prospective clients tell me stories of disrespect and share with me their resulting feelings of indignity. Just as the schoolyard bullies and cruel cliques of childhood inflict emotional trauma on their victims that often lasts well into adulthood, the grown-up bullies we encounter often leave severe emotional wounds behind that can take years for people to recover from, if ever. For me, this has motivated me to make an extra effort to try to ensure that the people I come into contact with, even if we are in a dispute, are shown the respect and dignity that I believe all people are entitled to.

4.) Comparing ourselves to others is foolish and toxic – The truth is, in most cases, we don’t really know much about the intimate lives of other people. The family that often appears to be doing financially well and achieving great success may well be on the brink of total collapse. Trying to keep up with our image of other people’s lives can bankrupt us monetarily and emotionally. I remember one lesson about litigating cases that I learned from an experienced trial lawyer when I was just starting out. She told me, don’t worry about what the other side is or isn’t doing during a trial, focus on what you need to do for your client, if you continuously respond to what they do, you’ll never get around to putting on your client’s case. I found this was great advice both in and out of the courtroom. I try to keep my focus on my own work, my life, and the things that I can control. I remind myself frequently, what others are doing is rarely any of my business or concern. It’s much better to create and tell our own story than to try to duplicate the life of another.

5.) Beware of righteous anger – We live in a world where other people sometimes cause us harm either intentionally or unintentionally. Sometimes we are left with wounds and hurts from the actions of others and anger is a very understandable and natural response. It’s very tempting to want to inflict upon the other person the same or great harm and suffering, believing that this will resolve our anger. However, I have rarely seen where punishing the other person does much to resolve anger or hurts. Righteous anger can impair our ability think rationally and result in our harming ourselves and others. I recall an instance when I was representing clients in delinquency court where a man who was being victimized by teenagers stealing his mail from his mailbox came into Court seeking restitution for having purchased a firearm and asking for payment for the hours he sat in the window of his home with the weapon watching the mailbox with the intention of shooting the children who were stealing his mail. Granted, the teenagers were causing him significant harm through what they saw as a prank, but his desire to shoot them was completely out of proportion. Fortunately, he never got the opportunity to use his gun and to suffer the regret and severe legal consequences that I strongly suspect would have occurred. It can be very difficult to let go of hurt and anger, but it’s absolutely necessary in order to live the best possible life going forward.

Read more5 Life Lessons I’ve Learned Practicing Law

Ashely Madison: Are Journalists Trafficking in Stolen Property?

The news media has been abuzz recently with stories about the hacker data theft from, Ashley Madison, a website, that focuses on personal ads for married people in search of partners for affairs. Hackers stole the membership list of the website, then threatened to publish the membership list if the owners didn’t shut down the website. When the owners refused to take down the site, the hackers then published the membership list on rouge server sites. Many of the news stories and blog posts regarding this theft and attempted extortion directed readers to the actual data so they could search the stolen data for member email addresses and other identifying information. This raised several questions for me regarding the legality and potential liability of the news media for their part in the dissemination of the stolen data.

Many of the Facebook and blog posts about the publication of the Ashley Madison data celebrate the hacking of the site, extortion of the company, and the publication of the membership list. The attitude is that members of the site are all dishonest cheaters who deserve to have their privacy invaded and to be held up to public scorn and ridicule. I think this analysis is simplistic at best and dangerous at its worst. Consider the possible outcome of a jealous husband, or wife, becoming enraged at the now public exposure of their spouse’s infidelity then resorts an “honor” killing of the other spouse. It’s not such an improbable outcome given the fact that, according to the New York State Office for the Prevention of Domestic Violence, 1/3 of all homicides of female victims are committed by the woman’s intimate partner.

Beyond the fact that disclosure of the data may create a physical danger, I believe that, when a journalist or blogger links to the stolen data, the journalist is then engaged in the act of trafficking in stolen property. The data that was stolen was the customer list of the corporation that owns the website. Customer lists have value to businesses, are considered trade secrets, and as such are considered company property.

In the State of Florida, as in most, if not all, states, it is a crime for a person to: “appropriate a trade secret to his or her own use or the use of another” and a trade secret includes in its definition a “list of customers” Fla. Stat. § 812.081. Additionally, it is also a crime for a person to traffic in stolen property. Trafficking in stolen property means to “sell, transfer, distribute, dispense, or otherwise dispose of property”.

Therefore, I believe a strong argument can be made that journalists, who link to the stolen data in their articles, knowing that their readers will then access the data, and who the journalist has often encouraged to search the data, have engaged in the trafficking of stolen property.

However, many times journalists rely upon leaks of confidential information as sources for their stories and that many of these stories are often of great national importance such as the pentagon papers, Watergate, and the recent Snowden disclosure of domestic spying.  Historically, the Courts have protected the use of these materials in cases such as the New York Times vs. Sullivan in which the Court declined to prohibit the New York Times from publishing a story about the leaked pentagon papers disclosing confidential information about the war in Vietnam. However, I think there are important differences in those cases from the Ashley Morgan hack.

First, the disclosures involved in the prior cases all involved disclosure of information describing the content contained the documents. The cases did not involve the full publication of the papers. In NYT vs. Sullivan the story was the summation of thousands of pages of documents, but not the documents themselves. In other words, the focus of the reporting was the story contained within the documents, not the actual documents themselves.

Secondly, the disclosure, through the publishing of the link, of a customer list containing the names of otherwise unknown private citizens who, whether one approves or not, were engaged in perfectly lawful private behavior is tabloid journalism at it’s best. Is the data being disclosed to inform or is it simply titillating gossip? Is there an important first amendment right at issue here, or is this merely an invasion into the private lives of private people for no legitimate journalistic purpose? Does the public have a right or a need to know who may have accessed the website?  Does applying the first amendment freedom of the press right in this case and other similar circumstances create a chill over the larger population’s exercising it’s right to free speech, right of association, privacy, and liberty rights?

The case for trafficking in stolen property by journalists in the Ashley Madison case revisits an unresolved issue in the recent case involving free-lance journalist Barrett Brown. Mr. Brown was recently sentenced to 63 months in federal prison following his arrest on charges or trafficking in stolen property after he posted a link to a stolen document in a chat room. Many saw the trafficking charge as an unconstitutional infringement upon the 1st Amendment right of free speech and a strong legal defense was planned. However, that charge never went to trial when Mr. Brown pled guilty to other charges such as threatening FBI agents and the government dropped the trafficking charge.

As of today, the legality of journalists sharing links to stolen data remains unresolved in the law. I believe that journalists have a protected right to comment on stolen data that is brought to them, they can describe the contents and speculate regarding the impact upon public policy or other matters of larger public concern. However, I don’t think the law protects a journalist who transfers the data itself to third parties.   I think that it’s hard to argue that transfer of private data either directly or by way of an Internet link is a form of speech. However, I expect that the law will have to closely examine this issue and that we’ll see more of this in the future.

 

 

 

Advice To The New Law Student

Advice for the new law student
City University School of Law
City University School of Law

I’ve never had children, so I don’t know what it’s like to experience the emotions of a parent.   The closest I’ve come to being a parent is my relationships with my nieces and nephews. If being a parent is anywhere nearly as cool as being “Uncle David” it has to be awesome.

This week I’m very proud and excited that my nephew is following in my footsteps and will be starting as a 1st year law student at my alma mater, City University of New York School of Law. This got me thinking about what I’ve learned in my journey from being the child of divorced parents who didn’t have college educations to being a lawyer. I thought about what advice I can offer my nephew as he takes his journey and this list is what I’ve come up with:

 

 

Relax. Despite all you’ll hear about how difficult and stressful law school is, it’s really not that bad. When studying law, read the cases as stories and then think about what the moral story is. Don’t try to memorize, try to understand. In law school what you are really studying are the sacred values of our society. It’s much easier and more interesting to study and remember stories than to try to memorize rules and holdings.

Be Diligent. Go to class every day, handwrite your notes on paper, go home and rewrite them, and then later type them into your computer to make an outline in which you brief every case. Study your outline for the final exam. If at all possible, don’t take a computer to class and turn your phone off. They are very likely to distract you.

Strive for Integrity. One of a lawyer’s most valuable assets is his or her reputation for integrity. Start building yours now. Hold yourself to a very high standard of honesty and trustworthiness. People will notice and your fellow law students will remember.

Be Creative. Law is a creative endeavor; make time to develop yourself as a creative thinker. As a law student I was amazed at how much pastel painting opened my mind to think about the law from new perspectives. To this day, when confronted by a vexing legal problem I will sometimes put down the law books and pick up a musical instrument, write or read a poem, or listen to good music.

Open yourself to Weird. Sometimes the weirdest most unorthodox law professors teach you truths about the law that you won’t find in textbooks.

Be Civil. The image of the jerk lawyer is popular entertainment, but is a recipe for disaster in real life. Remember, every dog has his day. The lawyer you insulted, embarrassed, or humiliated today may be the lawyer you need a favor from tomorrow. Civility is much more than being polite to opposing counsel and their clients; it’s treating others as you want them to treat you regardless of how badly they may be behaving. Also, it’s absolutely necessary for your own mental health and effectiveness as a lawyer. Start practicing it now with your fellow students and professors.

Think before you act. When you’re about to do something that you’re not sure of, ask yourself: If I had to explain this on my bar application, what would I say?

Plan your career early. Law is a competitive business; start planning your career now. Most of us don’t graduate into $120k per year jobs with large law firms. Make an effort to network with the legal community outside the law school. Clinics and internships are a great way to start. This will help you identify what areas of law interest you and will provide you with contacts for things like client referrals and job opportunities.

Keep monkeys off your back. No legal career has ever been helped by alcohol or recreational drug use.   According to the ABA, lawyers suffer from addiction at twice the rate of other professions and that most addicted lawyers start as addicted law students.   Practice good mental hygiene and stay true to your own values.   Get help if needed.

Keep things in perspective. There is a difference between striving for excellence and being a perfectionist. Perfectionism will paralyze you and keep you from learning. You will make mistakes and occasionally fail despite your best efforts. The professor, or later the judge or jury, will not always agree with you. Accept it and move on.

Make Time Take Care of Yourself. Eating a healthy diet and getting regular exercise will help you perform better as a student. Don’t forget, there is a world outside the law school and you’re living in one of the world’s great cities. Go explore. You will cherish the memories.

Enjoy the journey. Don’t miss the experience of law school by only focusing on the life that may follow it. In law school you will the opportunity to explore history, examine our societal values, develop your writing and persuasive skills, and create many new relationships. Be grateful for the experience while it happens. Remember, my 3rd year clinic partner never got to practice law because, despite being young and living a healthy lifestyle, she died unexpectedly while waiting for her bar exam results.  No one guarantees us tomorrow, we must be grateful for today.

Scalia and Thomas Dissents – What about Dignity? Part 3 of 3

In this final installment of my examination of the U.S. Supreme Court decision regarding same sex marriage in Obergefell vs. Hodges I examine the dissents of Justice Thomas and Justice Scalia.

Justice Scalia concurs with the dissent of Justice Roberts, but felt that it was necessary for him to write separately “to call attention to this Court’s threat to American democracy.”

Justice Scalia is quite famous for his scorching and snarky dissents in which he often resorts to ridicule of the other justices and their reasoning. In this dissent he doesn’t disappoint us in the least.   His opening is similar to Justice Roberts’ dissent in that he tries to create distance between his “personal feelings” regarding same-sex marriage and his opposition to finding a right to marriage for same sex couples. Justice Scalia writes:

“The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes…it is not of special importance to me what the law says about marriage.”

In other words, like Justice Roberts, he’s trying to insulate himself from being judged homophobic by history. Having assured everyone that he doesn’t hate gay people, Justice Scalia then becomes quite melodramatic in his dissent. He basically accuses his fellow justices of destroying American democracy and taking over the other branches of government.

“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

In classic Scalia fashion he accuses his fellow justices of “robbing the people of the freedom to govern themselves”. His argument throughout his dissent is really two-fold: 1.) This is a political question with no civil right involved.  2.) Marriage is a matter for the States and does not involve a constitutionally protected liberty interest.

It is interesting to note that although Justice Scalia criticizes the majority for failing to present a more developed legal argument, his dissent contains only the most minimal citation to judicial precedent. He repeatedly returns to the fact that only nine Supreme Court justices get to decide the case. However, he doesn’t acknowledge the dozens of District Court and Appellate Judges who, during the decisions giving rise to the present case, repeatedly reached the same outcome as the majority in this case. Indeed, only a small number of Judges have found that same sex marriage is not a Constitutionally protected right.

One very interesting portion of his argument arises during his criticism of his colleagues and the institution in which they serve.  Justice Scalia brings up an interesting, and I think important, observation regarding the lack of diversity in today’s Supreme Court.  “The Court,” he writes:

“consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”

Actually, Justice Scalia is somewhat misleading in this statement.  His colleague and friend, Justice Ginsberg is a graduate of Columbia Law School, although she did study at Harvard before transferring to Columbia.  In many ways, this is a somewhat odd attack on what many feel is the most diverse Court in our history. Consider that 3 out of the 4 women who have ever served on the Court are currently serving. There is a Black male justice, of which there has only been one other. As far as we know, there are no homosexual Justices (Although it does appear that the only person nominated from my hometown of Tallahassee, George Harold Carswell, may  be the only non-heterosexual ever nominated). We have the first and only Hispanic Justice. He is correct that the Court lacks religious diversity. All current justices are either Catholic or Jewish, although historically 91 of the 112 Justices who have served on the Court come from a Protestant background. The average age of our current justices is approximately 70 years old. The lack of diversity in legal education is also concerning.

This commentary on diversity becomes more intriguing because later in the dissent Justice Scalia cites to the wisdom of a group of historic Judges who are hardly a diverse group at all:

“Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly”

Judge Race Religion
Thomas Cooley White Protestant
John Marshall Harlan White Protestant
Oliver Wendell Holmes, Jr. White Unitarian
Learned Hand White Protestant turned agnostic
Louis Brandeis White Jewish
William Howard Taft White Unitarian
Benjamin Cardozo White Jewish
Hugo Black White Protestant
Felix Frankfurther White Jewish
Robert Jackson White Protestant
Henry Friendly White Unknown

In many ways that’s the irony of Justice Scalia’s dissent. He utilizes diversity as a weapon to criticize, but he’s not at all bothered by the lack of historic diversity in our legal system to whose precedents he believes we should rigidly adhere. He doesn’t seem to see diversity as something that is protected by the Constitution. Yet there is an uncomfortable truth to Justice Scalia’s argument that the Constitution doesn’t create rights to promote fairness and justice for a diverse society. Our founding fathers and ancestors did not see justice and fairness in ways that we do in modern times. Consider for instance that State laws prohibiting contraception for married couples were lawful until 1965. It wasn’t until 1981 that we got a woman on the US Supreme Court. Our nation didn’t even prohibit segregated schools until 1954. As recently as 1986 the Supreme Court upheld laws criminalizing gay sex. I can’t help but wonder if Justice Scalia thinks we should be bound to the past until such time as the electoral process provides an opportunity to vote for change?

Justice Scalia’s dissent argues this limitation of Constitutional protection by claiming that the Court should refrain from looking to the spirit, the intent, and the promise of the Constitution. The focus should remain only on the text. Justices should not read into the text any rights that are not explicitly stated. He believes that it is through constitutional amendment and not judicial interpretation based upon experience that change should occur. While I do not think this perspective is without merit, I don’t believe that for many oppressed and minority groups his perspective offers a realistic hope of justice and freedom from oppression by the majority group. Other than women’s suffrage and abolishing slavery, our nation has never once amended the Constitution to create a new right or to offer any group protection from any form of oppression.

Lastly, to conclude this blog post, we turn to the dissent of Justice Thomas who begins his dissent by rejecting the majority’s concept of liberty. He writes:

“The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.”

Justice Thomas utilizes a definition of liberty that was written in 1769 in an analysis of the laws of England, the very nation we broke away from in pursuit of freedom:

“the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.”

He then conducts an analysis of liberty, as it was understood under the British Magna Carta. His reasoning for doing this is his belief that this was the understanding of liberty possessed by the framers of the Constitution. He spends a great deal of time in his exploration of “liberty” and seems willing to expand it to include freedom from government action. However, he claims that even with this expanded definition he still rejects the right of same sex marriage because he sees the right of marriage, along with the governmental benefits, to be about an entitlement to governmental benefits.

Justice Thomas points out that the petitioners are free to have whatever form of religious marriage they wish, but that in his view the case is about their seeking governmental recognition of their marriage and the governmental benefits that flow from that recognition. These may be valid points, but Justice Thomas doesn’t in any way address, other than by virtue of tradition, why the government can restrict its recognition of marriage to only one man and one woman. I’m left wondering, under Justice Thomas’ perspective, when can the government create benefits that are entitled to some people and not others? Could we create a benefit that is arbitrarily for men only, for people of color only, only for Catholics, etc.? If my understanding of Justice Thomas is correct, then he believes such would be allowed.

The final issue that comes up in Justice Thomas’ dissent is without a doubt the most bizarre piece of judicial writing that I have ever read. Honestly, I was shocked when I read it and it still seems like something you’d read in the Onion rather than a US Supreme Court opinion.

Justice Thomas begins discussing “dignity” and states that the US Constitution does not protect it. He claims that because dignity is innate to all human beings it cannot be impacted, positively or negatively by governmental action. He writes:

“Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.”

I’m at a complete loss as to what to say about this other than it’s got to be one of the most ridiculous and callous statements ever written by a Supreme Court Justice. In my opinion, the right to vote, due process, freedom of speech, and protection against unlawful searches and seizures are all rooted in a fundamental respect for the dignity of human beings. To view our Constitution as providing nothing more than a framework for the function of government to me is to strip it of articulation of our values. This ultimately denigrates the very nature of the document and the nation that looks to it for direction. I’m simply appalled.

In closing, this decision and the dissents, apart from their important impact upon American life, reflect many of the challenges and conflicting perspectives we face as our nation moves into the 21st century. In some ways, and it’s strange for me to admit this, Justice Scalia may have some valid points when he argues that rather than looking to our Courts to create new rights, we should be amending the Constitution. Consider that ours is the oldest Constitution is use in the world today and we’ve rarely amended it. With the exception of women’s suffrage and the abolishing of slavery, we’ve not amended it to create any new civil rights or end oppression in over 200 years.   We are utilizing a document that pre-dates the industrial revolution, any form of electronics, and mechanized transportation to run what is perhaps the most complex civilization in the history of the world. The question that will remain after this case is to what degree do we reinterpret and extrapolate to find meaning and direction, and at what point do we simply say that it’s time to amend or rewrite? My thought is that not do either of these things will allow us turn a blind eye to injustice and inequality as these concepts emerge in the modern world.

The Roberts Dissent – The Sky Is Falling! Part 2 of 3

In this posting I explore Justice Roberts’ dissent in the same sex marriage decision, Obergefell v. Hodges. I will deal with the dissents of Justice Scalia and Justice Thomas in a third and last installment of posts on this decision. I want to deal with Justice Roberts individually because I find his dissent to be more interesting and much more reasoned than the dissents of Scalia and Thomas.

The opening of Justice Roberts’ dissent is quite characteristic of the tone and balance that I feel he uses throughout the entire dissent. The dissent opens with the following:

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal.”

It is an opening paragraph that when I read it seemed to me to be an attempt to create a distance between homophobia and his argument that there is no Constitutional right to same sex marriage. The message seems to be that, while allowing same sex marriage may seem to be the right thing to do, what is right is not appropriate for the Court to consider. He immediately dismisses the arguments of fairness by stating:

“Whether same-sex marriage is a good idea should be of no concern to us.”

He returns to this concept of judicial restraint several times in the opinion with statements such as:

“It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.

Justice Roberts argues that establishing the definition of marriage is an issue relegated to the States that should be resolved through the ballot and legislative process. While he concedes that the historical precedents of the Court view marriage as a fundamental right, he would have the scope of that right be decided at the state level. What he doesn’t do though, which is considered by the majority opinion, is consider the Constitutional ramifications of allowing marriage to be defined at the State level. He doesn’t seem to be bothered by a result where marriages are recognized in one state, but not another. Although he returns to the argument time and time again in his long and largely repetitive dissent, he never addresses how under his paradigm one reconciles the fundamental inequality that arises. Roberts either does not seem to notice, or is not bothered by, an outcome where for opposite sex couples, marriage is a fundamental right protected by the Constitution that is beyond the reach of voters or the legislature. Whereas for same sex couples marriage would only exist as a matter of statutory law, subject to changes by the voters and legislature, and without Constitutional protection.

Justice Roberts conducts an analysis of marriage and its historical roots. In my opinion this is probably the weakest part of his dissent. His examination of marriage is incredibly limited in scope. Regarding the reason for marriage’s existence he writes:

“It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.”

Justice Roberts never explores the idea of marriage beyond what he claims is its biological roots.   He claims that this is the “singular understanding of marriage” throughout American history. He spends quite a bit of time over several pages making the argument that marriage is tied to procreation. He concludes this discussion of traditional marriage by conceding that the majority is correct that marriage has changed over time, but limits this concession by stating that the “core meaning” has not changed.

He never addresses the fact that we don’t limit marriage to only those who can procreate, or that recognition of marriage carries with it many benefits and privileges not associated with procreating such as who would be appointed as a natural guardian of an incapacitated spouse, intestate property distribution, etc. His writing completely ignores the reality that many couples marry with no intention of ever having children and that there is no less protection given to childless marriages.

When Justice Roberts addresses the Equal Protection and Due Process protections that underlie the majority decision he begins by again returning to the judicial restraint argument:

“Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.”

It is from this point that his dissent starts to get a little weird. He looks to the Dred Scott decision as a justification for severely limited substantive due process (Equal Protection and Due Process Clauses) in which the Supreme Court struck down the Congressionally enacted Missouri Compromise on the basis that it resulted in a slaveholder loosing his property interest in a slave when they crossed into a non-slave state. He then basically claims that it was the Dred Scott decision that led to the Civil War and that the reasoning behind majority decision is analogous to Dred Scott.

Here’s what’s weird about this. The Due Process and Equal Protection clauses contained in 14th Amendment that were relied upon by the majority in deciding the issue of same sex marriage are post-Civil war amendments. They did not exist in the Constitution when Dred Scott was decided. He declares that  Dred Scott that was overruled by the Civil War, which is an argument that I’ve never heard anyone make in any context.

He accuses the majority of readopting the due process analysis long disfavored from the Lochner opinion, which involved the Court investigating whether or not a particular law was justified where a liberty interest is involved. In other words, the Supreme Court was acting to review the wisdom of a law rather than the Constitutionality of a law. All of this is argued in support of the overall theme of his dissent in which is he sees the decision as judicial activism.

“The doctrine that . . . due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely,” we later explained, “has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.”

One challenge that Justice Roberts faces in justifying his dissent is that the majority decision points to the numerous prior decisions holding that marriage is a fundamental right that cannot be restricted by the State without justification. Justice Roberts, in what appears to me to be a weak argument, tries to get around this by stating that none of those cases involved a change in the “core definition” of marriage.

In many ways, his entire argument comes to down to whether or not the state laws in question are viewed as a “definition” of marriage or a “restriction” on marriage. Justice Roberts appears to be with the majority when it comes to recognizing that the states face a high burden when justifying a restriction on the right of marriage. However, he believes that they’re free to do as they see fit when it comes to the “definition” of marriage. This is clearly articulated when, in distinguishing the right to marry cases, he writes:

“In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here.”

Numerous times returns to beating the long dead horse of Lochner in what is a lot of repetitive language covering arguments made earlier in the dissent. However, when he finally tires of arguing Lochner, he actually moves into what I think is the most interesting part of his dissent in which he asks the question:

“One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. “

In this portion of the dissent, I think he’s actually onto something. He points out that there is a strong historical basis for plural marriage and that the reasoning adopted by the majority could equally apply to a person seeking plural marriage. I suspect that he’s asking this question for the purpose of raising fears of the majority decision, but I do think it’s an accurate insight into the potential impact of the holding. Interestingly, he does leave himself an exit strategy should the issue of plural marriage come before the Court by stating: “there may well be relevant differences that compel different legal analysis.”

Justice Roberts closes the decision with several pages of what can best be described as “the sky is falling” rhetoric.   He claims that today’s decision will undermine the respect for, and authority of, the Court.   He even does so far as to claim that the petitioners in the case have actually lost in the long run:

“however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.”

After accusing the majority of sullying the names of people opposed to same sex marriages, Justice Roberts closes with what I feel comes across as a very sarcastic ending:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. “

I’m honestly disappointed that he decided to end with such a spiteful statement. Although I’m not persuaded by his arguments, he raises what I feel are some interesting questions and concerns. However, I find the issues he raises lose their dignity when coupled with his closing. Is Justice Roberts a sore loser, or someone who truly sees the role of the Court as so limited that it must ignore emerging concepts of justice at the expense of honoring tradition? I don’t know. Numerous times in the decision he explains that the outcome is not of concern to the Court because that is a policy consideration for the legislature. While I respect the idea of judicial restraint, I’m not convinced that our founders envisioned our Judicial branch to be little more than a potted plant that is intellectually impotent in the face of injustice. It is the refusal of the Court to act in the face of injustice through decisions such as Dred Scott, Plessy (upholding separate but equal), and Korematsu (upholding internment of Americans of Japanese descent) that have brought shame upon the Court. I do think Justice Roberts’ concerns about short-circuiting the democratic process are of legitimate concern whenever a case such as this is before the Court.  However, I don’t feel that he’s even begun to adequately distinguish a law that “defines” marriage as only applying to certain people from a  law that “restricts” marriage in a way that violates the Constitution.  I suspect, that if this could have been done, this case would have been decided differently.