The only thing worse than campaign ads from Tennessee

Locally, we're sick to death of the ads from the Corker-Ford race, since we're not in Tennessee, just near it.

What bothers me more, however, are the funeral home ads on cable. There are only two funeral homes in Abingdon, everyone knows all they need to know about them, yet they persist in advertising all the time.

Balderdash

The Commonwealth Coalition is invoking Jefferson's Virginia Bill of Rights in their upcoming TV ads against the same-sex marriage amendment, in which a narrator says: "The Virginia Bill of Rights, Jefferson's model for the Declaration of Independence. Ballot Question One would destroy it."

The bill of rights says, among other things:

"2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

3. That government is, or ought to be, instituted for the common benefit, protection, and security, of the people, nation, or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the publick weal."

These provisions seem to support the idea that the majority should amend the constitution when they see that the government is inadequate, which is what the proponents of the amendment seek to do.

The public relations campaign against the same-sex marriage amendment has been, in my opinion, wrong-headed from the beginning. They should have said "oppose this because it is wrong and hurtful," instead of this legalistic nonsense, which is unconvincing largely because it is so transparently bogus.

I can understand why they did not try to sell my take on the amendment, that it is unnecessary to amend the Constitution because the legislative ban will never be overruled.

The last thing, however, that same-sex marriage supporters want anyone, let alone any judge, to consider is history, as evidenced by the discourse between the majority and the dissenter in the recent Marriage Cases decision in California. If history counts, a ban on same-sex marriage will always pass constitutional muster.

Chief Justice Roberts to appear at South Carolina law schools

SC Appellate Law Blog notes that Chief Justice John Roberts will make a doubleheader in South Carolina at the USC and Charleston law schools on October 20.

LeClair Ryan opens New York office

So it says here. That firm seems to grow like kudzu.

The state of the same-sex marriage amendments

Via How Appealing, this New York Times story on the status of the same-sex marriage referenda around the nation takes the position that proponents have lost some of their energy, but concludes with the note from one conservative that "the low-key tenor of the same-sex marriage debate could change in a thunderclap if a court decision that appears to undermine traditional marriage boundaries is handed down before the election. The New Jersey Supreme Court has a case pending and could issue a decision before Election Day."

Bashman also links to this article in USAToday, which is almost identical, to the point of fishiness.

The consensus in both articles is that the bans will pass everywhere this year, including Tennessee and Virginia.

A better idea - don't elect judges

Election Law blog notes here that Judge Karen Caldwell has enjoined enforcement of Kentucky laws limiting the speech of candidates for judgeships.

Hokies break bad in Boston

Watching Virginia Tech last night reminded me of a few other games I've seen where they just had a meltdown, including the West Virginia game three years ago, the game of the famous "helmet slap."

Thirty years ago today, Judge Williams was sworn in

And, by the way, here is what Senator Allen and Senator Warner said on the floor of the Senate in their tribute to Judge Williams and here is what The Virginia Bar Association's chairman of the board wrote in his letter to Judge Williams.

The judge has been a VBA member since 1948.

Shacking up still illegal in the Commonwealth?

The Washington Times has this report on the states which still have laws prohibiting cohabitation.

I have to laugh when I read about unmarried couples worried that the same-sex marriage amendment will affect their rights. They haven't got many here in the Commonwealth, where cohabitation is still illegal, under Va. Code 18.2-345. until the next case when a court gets the chance to sink its teeth into the statute, as was done in the Martin case.

What happens to some prosecutors when the Reds miss the play-offs

In Cincinnati, they're charging the prosecutor for walking about the government building at night in a state of being unclothed.

How they're getting by over in Wise, I could not say.

The legal arguments offered on the marriage amendment - lame and lamer

I read today's bogus column in the Roanoke paper about the hypothetical effects of the same-sex marriage amendment on opposite-sex unmarried couples.

I don't believe a word of it. In fact, I think it is dishonest propaganda. What exactly are the benefits of marriage that unmarried people get now and are afraid of losing? There are none. What defines the benefits of marriage is that unmarried people don't get them.

I don't see why the people arguing for and against this amendment have to resort to unspeakably lame legal arguments, as if voters have any way of sorting them out. Quoting Professor A.E. Dick Howard is not the answer.

In my view, the amendment is most likely of no legal consequence. It will not decrease the likelihood that some judge somewhere will find protection for same-sex marriage in the federal constitution. It does not alter the public policy of the Commonwealth. It does not threaten the established rights of unmarried people.

NY Times reports on JMU's slashing sports to achieve Title IX compliance

The NY Times reports here ("At James Madison, Title IX Is Satisfied, but the Students Are Not," October 5) on the reaction to the announcement that JMU was "eliminating men’s cross country and track, along with eight other, mostly men’s, sports to comply with Title IX, the federal gender-equity law."

Students sue to keep guys out of Randolph-Macon

On Friday, the Lynchburg paper reported here that a group of students has sued to stop Randolph-Macon Women's College from admitting male students before the plaintiffs graduate. The article quotes their lawyer as saying: "They’re just asking for what the school promised them, nothing more."

The California appeals court decision rejecting same-sex marriage

Here is the Marriage Cases decision from the intermediate appeals court in California.

The dissent quotes heavily from Justice Carrico's opinion in the Loving case, making the point that the majority's reliance on history is no more valid than what Justice Carrico wrote, which was overturned by the U.S. Supreme Court.

Worth reading is the concurring opinion, which says in part:

"I also write separately to identify a major difficulty with all attempts at reasoned dialogue about this subject. There is a legitimate and meaningful disagreement in this country, and in many places around the world today, about what marriage is and should be. Over the last 30 years we have seen a gradual reconfiguration of family; merging models of family exist alongside traditional models. We have also witnessed an expansion of personal freedom to express who one really is that is desirable if each person is to become who he or she was created to be. The roots of the disagreement over what marriage should be necessarily intertwine cultural, societal, and religious ideas. There is a great tendency, out of zeal to eliminate genuine inequities, to be swayed emotionally and to overreach in applying legal principles. My colleague has done so in his dissent. Justice Kline writes passionately of the “profound nature of the liberty interest” at stake (dis. opn., post at p. 47) and of “autonomy privacy,” (dis. opn., post at pp. 9, 22) but does not cite a single case where the asserted liberty or privacy interest has been identified as he would have us recognize. Most of the cases he relies upon are cases where the rights at issue have been discussed in the context of marriage as it has been understood historically, or in situations that criminalize acts of sexual intimacy. In the end the dissent advocates, from cases that do not lead inexorably to such a result, the existence of a fundamental right to participate in an institution that as historically defined excludes such individuals."

Give him six

Pirated from the James River football website, here is my wife's sister's son Matt running for a touchdown in a JV game against Matoaca.

Still no reinstatement in the W.D. Va. Sarbanes-Oxley employment case

In the latest opinion in Welch v. Cardinal Bankshares, Judge Conrad found yet again that the District Court has no jurisdiction to order the reinstatement of the plaintiff, until the Department of Labor issues a final order.

Who says those who can't do, blog?

Howard Bashman of How Appealing was the winning lawyer in this Sixth Circuit case.

The Bristol lawyer who argued the motion that was the subject of this report and recommendation by Magistrate Judge Sargent read the opinion yesterday on his birthday.

Private Property Rights Implementation Act of 2006

Not long ago the Fourth Circuit had that funky Charlottesville case, where the majority of the panel bought in the plaintiff's argument that the taking of her land was also a Fifth Amendment seizure. One reason for the plaintiff to make this argument, I thought, is that litigating a taking is difficult.

I've just now learned from this post that the House of Representatives has passed a bill that would make it easier for property owners to sue in federal court when government takes their property. I'm not sure whether this is a good thing, but it surely is interesting, although it may never pass the Senate. Some federal judges are probably opposed to it, not looking forward to a mess of cases claiming that the highway department exceeded its right-of-way by six inches.

The law professor blogger census

Here is a list of 309 law professors with blogs - including Ninomania, of Professor David Wagner at Regent, Richmond's Professor Spencer's federal procedure blog, and a reference that William & Mary's Professor Oman is one of the brains behind Concurring Opinions.

List of lawsuits against bloggers

This list of lawsuits against bloggers includes one from the W.D. Va., but does not mention the travails of Black Velvet Bruce Li.