Oh court drama's...I love to hate them. I never was one to have patience for Matlock or Law and Order type T.V. shows. It's doubly frustrating then, to have to wait on the courts to decide on our civil rights. It is an exercise in patience to watch them debate the merits of our lives in terms of ice cold facts and legal precedence...and then put off a decision till next year because they can't answer a procedural question. Yet, as the race for the Republican nomination is illustrating, there is no quarter given us from elected officials...our fates, it seems, depend on the courts.
Currently, there are several legal challenges to DOMA painstakingly climbing the legal ladder to the Supreme Court. If any of them make it that far, we will then be at the mercy of the residing justices. A great deal of speculation has been made concerning their individual opinions based off their personal views and the niggling detail of whether gays are considered a "suspect class". That simple designation would elevate issues like DOMA or an inclusive ENDA from the realm of partisan political whims to legally acknowledged civil rights necessities So far...efforts to add sexual and gender identity to the other protected classes of gender, race, and religion have failed.
And then came "The case of the lesbian juror"....An odd name to be sure and the case itself seems to leave more questions than answers. however, if the story is worth it's salt, it could have extremely far reaching implications on our designation as a "suspect class" and lend tremendous gravitas to our strivings for full legal equality. Who is this mystery juror and how could her story impact the greater struggle for gay rights?...Read on to find out...
There has been some discussion this weekend about an L.A. Times article about an out-of-left-field court case that could give a potentially huge boost to gay rights. The case...which began with the dismissing of a lesbian juror from an assault case in which, Daniel Osazuwa, a gay Nigerian man was charged with assaulting a prison guard.The story of the dismissed jurist, who's name is not given, has completely eclipsed the case for which she was dismissed, as the prosecution claims to have removed her after she volunteered that she could be biased on the basis that she had Nigerian friends. Osazuwa's Defense claims otherwise however, and contends that the juror was removed on the basis that both the juror and their client were gay. Osazuwa's lawyers are appealing the case to The Ninth Circuit Court of Appeals on the grounds that the legal council should be barred from dismissing potential jurors on the basis of sexual orientation.
A couple of glaring questions stand out however. First, Why is the name of the mystery juror not given? Presumably it would not alter Osazuwa's case any being that she has been removed from the trial. Second, how in the heck was her sexual orientation discovered? The only possible reason this would have happened is if she volunteered the information herself...possibly if she was asked if she shared any traits with the defendant that could lead her to hold a bias. But if that's the case...how did Osazuwa's sexual orientation come up? Perhaps a clue comes from the article itself (emphasis mine):
Osazuwa's defense during the trial was that he was just giving a guard a hug, a salutary gesture in his African homeland, and that the homophobic guard overreacted, lunging away and falling to the floor with Osazuwa on top of him.
Whether or not this statement is true is not important to the effect this defense could have on gay rights. whether or not this was a "hug" or an attack is a matter for the judge and jury to decide. The implications for gay rights if the defenses tactic of using this juror to advance their appeal is the real concern...And I have a few questions...
Typically, in the scant few jury trials I have been considered for, little to none of the details of the case are given to the jurors before they are selected. Yet perhaps they were asked in the selection process if they would have any problems hearing a case that involved homosexual persons and under those circumstances our mystery juror volunteered her sexual identity of her own accord. However it happened, the utter lack of specific information given makes the mystery juror look more like a fictitious invention than a real person.
But...If it's true...
Than there is a chance...as the times article details...that a positive ruling could add weight to the argument that sexual identity would become an officially recognized "suspect class". That would add incredible weight to all our efforts for legal equality, from the fight for marriage equality...especially in repealing DOMA...to providing for workplace protections, fair and equal immigration practices, and a host of other legal protections that currently depend on the whims of individual politicians acceptance of LGBT people and the bones they wish to throw us....(*cough*...Obama...*cough*)
The lack of the designation of being a suspect class has held up so much legislation and been the source of many unfavorable legal rulings. As long as people are able to justify to themselves that homosexuality is a set of behaviors that one chooses...and not an immutable, inborn characteristic, then they are free to continue to kick our legislation down the field for any reason that suites them...or...at worst, paint us as an attack on the American way of life. You and I may not give a dam what others think of us, but when it comes to securing legal protections that simple term "suspect class" means that it doesn't mean jack what Michelle Bachman or Mitt Romny thinks about same-sex marriage or how many documents they sign for NOM. The have to honor the law and flush their rough drafts for federal constitutional marriage bans down the toilet.
So...as we are already looking to the courts to fulfill the American promise detailed in our constitution, might it be the case of the mystery lesbian juror that ultimately serves as the key to victory and fell the giant of institutionalized homophobia? If so, it would truly come from an unexpected source and effect everything we are fighting for. However, until we hear more...I will keep holding my breath for the California Supreme Court ruling regarding standing in the Prop 8 Trial...then it's either celebrate the return of marriage equality to California, or head back into the Ninth circuit again for another round of waiting. .....If only there was a case that would solve everything...
Until next time dear readers....
What you describe is the reverse of the situation in Europe. European courts - both national and international - have failed to protect gay rights far too often to be considered allies.
ReplyDeleteEvery European country that has gay marriage or an equivalent won them through their national legislature. The same is true of employment, goods and services and other discrimination protections, most of which were gained through the European Parliament (so to all those gays who say the EU's good for nothing, the EU is the ONLY reason gays have those protections in countries like Latvia, Lithuania and Poland). About the only areas of gay rights where Europe lags behind the USA is adoption rights, and there's a definite east/west divide there; again, it's entirely down to the legislatures.
This does mean that gay rights are largely down to the whims of politicians and electorates, however. Denmark was the first country to recognised gay relationships, but right-wing governments have prevented progress ever since. The Czech Republic is by far the most liberal of the former Eastern bloc states, yet the current president, Vaclav Klaus, has been an indefatigable opponent to gay rights. The UK has had similar problems with both Tony Blair (who was responsible for us getting civil partnerships rather than full equality) and David Cameron (whose senior advisors include some of the most vile homophobes in British polics outside the BNP & DUP).
Always love to hear your input Tavdy :) As an outside observer to your political system(which I still find a little byzantine) The fact that you have so many more parties competing for office seems to breed the kind of politician that actually cares more about doing a good job for his/her constituents. I chalk that up to there same concept that capitolism relys on...many competitors yield a better market.
ReplyDeleteMy opinion of the U.S. issue is that the two parties have grown to be too similar to each other and too isolated from the people they serve. Washington is an ivory tower that most politicians only leave when they are forced to. In the end it means they could give a rats butt about the common person.
Bryan
It's not really Byzantine, it's just different from the American system, and for purely historical reasons.
ReplyDeleteWith the exception of Texas and Vermont (formerly independent countries) and the original 13, every single US state was formed from territory already part of the USA in a process of colonisation, so (with the possible exception of Utah) American states are not generally divided up on an ethnic or cultural basis. Cultural divisions exist within the states, and even then they're rarely geographically defined. The only notable exception to this is the Cajuns.
In Europe the opposite is true: thanks to the 3000+ years of history, cultural divisions mostly exist between states or between constituent countries within states, resulting in a much wider array of political systems that pre-exist the EU to deal with specific local realities. Banning federal systems would cause the break up of Spain and the UK and (in a worst-case scenario) civil war in Belgium. Requiring a parliamentary system of government would be similarly destabilising to France.
This flexibility is not without it's problems, of course. The new Hungarian constitution is one; another is the UK's unelected upper house; a third the ban on constitutional monarchs from calling elections when parliaments act against the interests of the nation (something which could have prevented the Iraq War). But since the last major European war ended with over 70 million dead or missing, and the one before that 40 million, it's better than the alternative.
Re. the gridlock in Washington: IMO the biggest problem with the US system isn't that the two-party system isolates politicians from the electorate, it's that the first-past-the-post system does.
In general, FPTP encourages two-party systems because third parties rarely have a chance of winning a politically significant number of seats. (The UK is an exception, but there are historical and political reasons for this.) The result is a system where political parties don't need to win outright majorities; instead they need to win a majority of voters in a majority of seats, and any votes the winning party gains in seats they don't win are wasted. This means the absolute minimum vote share a political party needs to win a majority in a a two-party FPTP election is disturbingly small - about 26%. This is why the moderate wing of the Republican party is politically weak despite being far closer to mainstream American opinion than the rest of the party: it is strongest in socially-liberal areas dominated by the Democratic party.
Electoral systems that include proportionality force parties to fight for every single vote, irrespective of where in the country the voter is, making them more responsive to the electorate and preventing the election of governments elected by a minority of voters. Over time this weakens extremists, like the Religious Right and Tea Party in the USA, or the BNP and English Democrats in Britain, because the most successful parties tend to be politically moderate.
I've recently became more involved in struggles gay people have in my country, Russia, and I'm just horrified at what I've discovered. Basically, there is no freedom of speech over here. In order to speak your mind you have to get a permit from local authorities who never grant one for any political opposition or the gays. In April the European Court of Human Rights handed down the final decision saying bans of gay pride events are illegal, advised the government to stop that practice and pay the 30000 euros fine. That decision of the higher court did not stop the government from banning gay pride in Moscow in May of this year, and every participant was arrested, including Dan Choi, they all spent some time in prison. Where is the freedom of speech and association? This is disturbing on so many levels, and it is not just about the gays, it's about anyone's right to express yourself to your government. Without gay prides we are not goin to achieve any freedoms, gain any rights or protections. Without freedom of speech we are not going to get our message out there not for people who have no opinion on gay rights and need us to show the light, nor for gay people out there who have no support networks and who think they are damaged and not worthy of life itself. This is scary.
ReplyDelete