Forty Years After Stonewall

The Stonewall Riots (over the shutdown of a gay bar in New York City), forty years ago this Sunday, marked the beginning of the modern gay rights movement, and the Colorado Democratic Party's gay, lesbian and transsexual interest section (like that of many Democratic Party entities with the same purpose) bears its name, the "Stonewall Democrats."

Growing up in small town Ohio in the 1970s and 1980s, even though it was a college town, this was just background noise to me. I don't remember being really aware of the gay rights movement until I went to an even smaller college town in Ohio (Oberlin) after graduating from high school and encountered people who were out as gays and lesbians for the first time (transgender was part of the acronym commonly used on campus at the time but that concept was not something I had encountered personally, or a possibility that part of my consciousness or that I understood, until later). The notion that someone might take a term like "dyke" or "fag" and embrace it, was a revelation. I knew what the terms meant literally, in high school, but not in a way that had any really context or meaning to them.

More than anything else, the gay rights movement owes its success to that same thing that opened my mind, exposure. The "present company excluded" concept is more than a rule of etiquette. Your brain simply can't help treating people you know differently. Theoretical knowledge is all fine and good, but your gut works on the particularistic experiences you've had in real life. One of the most visible early gay rights groups, ACT-UP, didn't make a lot of friends with its militant and often law breaking tactics, but it made you pay attention and acknowledge that gay rights and AIDS were serious issues at all, and just as important, that gay and lesbian people really existed, and were not just some theoretical construct invented by philosophers (well actually, some queer studies scholars still do say that gender is just a theoretical construct, but that's another story).

Still, the biggest impact didn't come from anything flashy or carefully planned. It came from ordinary but brave people living daily, ordinary lives and choosing to embrace their identity instead of hiding it, even though this involved risks of serious harm to their personal safety and reputation. I learned about what "gay" and "lesbian" meant while serving in student government doing things like brokering disputes over office space between the gay and lesbian student group, the Evangelical Christian group, the sex co-op (it provided contraception, counseling, practical sex tips and other information from a basically pro-sex perspective) and the seven Republicans on campus (some of whom I was also on a debate team and bipartisan student publication with). And then there was the drag ball, one of the highlights of the annual campus social calendar. And then there was walking across campus to dinner or a class or a dorm and seeing people of the same sex embracing like all the other lovers on campus and getting used to it (much more easily than I did to the sweet but very loud young woman in a passionate heterosexual relationship down the hall from me in my second year on campus).

At the time, in the Midwest, there weren't a lot of gay role models and there were no guarantees that there wouldn't be serious backlash. People then (and now) have been attacked, killed and ruined socially and professionally by coming out as homosexual or transgender. Many graduate school bound fellow students who were not only out, but incorporated their sexual orientation into their scholarship, had to gamble that they would be embraced rather than shunned by academics who got their PhDs when "Stonewall" was a descriptive non-proper noun and "gay" meant carefree and happy. The science bound future graduate students on campus often didn't have to be quite so obvious in their application materials, but also faced a group of prospective advisers and colleagues with a lot less predisposition to be welcoming as a matter of principle.

In the fact, most people were not punished for their openness while I was in college in our insular community, although not every place else at the time in the outside world was so welcoming. It was a good time to be out, although we didn't know that then. The safe bet at the time for those who didn't know any better was that this coming out was just a localized, temporary fad that would soon go the way of barbershop quartets, flappers, disco and bell bottom jeans.

I know that I was not so brave or self-assured at that point in my life. I spent all three of my years as a residential undergraduate living a lie (not a terribly uncomfortable one to be sure) as a parishioner of the local Episcopal Church and member of the Christ Church's quite active college student's group (even serving as a Sunday school teacher my last year there), despite having quite definitively ceased to believe in God while I was still in high school. The conclusion on religion only became only more firm as I studied church history and science in the classroom, but I wasn't about to let anyone know that in public. I could easily have simply been negligent regarding church attendance and not been noticed at all (which is what I did in law school), but I erred on the side of caution and habit and self-doubt. Maybe I'd change my mind in a different denomination than the Evangelical Lutheran Church in America that I grew up in (and was confirmed in while I was in high school at a time when I didn't believe). I wasn't ready to face my social fears, even after I eventually figured myself out.

The risks haven't ended. The U.S. military, even in the Obama administration, is still drumming people out of the service for their sexual orientation. Public attitudes have changed, with a lot of that change hitting the average person on the street only in the past few years as the gay marriage issue has influenced people's thinking. Laws have changed. Any backlash will have to contend with a nation of Generation X and Generation Y and Millennials for whom homosexuality isn't something to be afraid of. But, transgender acceptance is still probably at least as far from reality now than acceptance of gays and lesbians was then, and the possibility that we may be at the tolerant side of a social pendulum swing is real. In Europe, Jews sometimes lived in peace for decades in an area, only to face a pogrom that left some dead and most of the rest of the community exiled. (In 1543, Martin Luther wrote On the Jews and Their Lies, which urged people to conduct pogroms; modern Lutherans do their best to ignore these teachings, generally with great success.)

My neighborhood and its immediate neighbors have now sent at least two openly gay legislators and at least one openly lesbian legislator to the state legislature (I beg forgiveness if I've missed someone), and I count many Stonewall Dems (and a few of their Republican and unaffiliated counterparts) among my friends, colleagues and clients (about 30% of my estate planning clients are gay, lesbian or transgender). Even though I'm aware intellectually that two steps forward can be followed by one step back, I don't subconsciously believe it. A belief that you are right about something, reinforced by personal experience, creates a sense of inevitability.

When Time magazine reported on the Stonewall riots in 1969, gay rights must have surely seemed like a misguided, absurd lost cause to almost everyone. But protesters picketed, made seemingly impossible demands (many still unsatisfied), and demanded that politicians take sides anyway. A sexual revolution was underway, but it would take most intellectuals a couple of decades to come to the conclusion that the sexual revolution and other cultural upheavals of the 1960s (much of which actually spilled over into the 1970s), had as much to do with identity as they did with sex. A counter-revolution of fundamentalist Christian morality, sexually transmitted disease fears driven by AIDS and increased pre-marital sex, a distaste of young marriage and pregnancy driven by increased economic opportunities for women, and increased concerns about acquaintance rape and sexual harassment in an increasingly gender mixed world would start to take hold in the 1980s, taking the shine off the "sex" part of the sexual revolution. But, the gay rights movement did not retreat. It would take another decade still for people to discover the the ironic fact that the anti-gay policies of the U.S. military, which by bureaucratic happenstance dumped many people discharged for being gay in San Francisco, played a pivotal role in creating a queer community with more critical mass than anyplace since early 20th century Berlin. Gay marriage, which seemed like a pipe dream a decade ago, is now reality for tens of thousands of couples in many states, including the bulk of the Northeast. Popular culture portrayals of gays and lesbians have gone from being remarkable and groundbreaking to almost cliche, if they aren't talking about something more than mere sexual orientation.

Another reason for hope is that progress for gay rights hasn't been confined to the United States, which is actually something of a laggard in the developed world on gay rights issues. In the countries that are the usual suspects in the developed world, not just in Europe, but in Japan as well, attitudes are changing.

Progress has not been universal. In Iran and Iraq dozens of gays are executed or subjected to governmentally tolerated extrajudicial killings every year. Africa is as awash with anti-gay hate as any rabidly conservative evangelical Christian congregation in the American deep South. But, no struggle for toleration and acceptance is ever really won everywhere and forever. There are places on this Earth where they still burn witches in the 21st century too. There are still American elected officials who use the Internet to proclaim that Galileo was mistaken when he proclaimed that the Earth revolves around the Sun. The Church of Latter Day Saints of Jesus Christ spent last fall pouring money and its doctrinal clout into opposing gay marriage in California and was starting to turn the Boy Scouts of America into a publicly anti-gay organization just around the time I became an Eagle Scout. Life is struggle and the struggle over gay rights is not over. But, gay and transgender rights (and acceptance) are making progress as we start to understand better who we are in a more inclusive way.

In the meantime, viva la revolucion!

Wrongful Convictions Can Be Devistating

Why is it so important that society get criminal conviction decisions right and stamp out police misconduct that can produce them? Because the harmful impact of a wrongful conviction for a seriouus crime can be immense.

George Rodriguez, 48, gained his freedom in 2004 after DNA tests discredited the findings of the troubled Houston Police Department crime lab on his case. By that time, he had served nearly two decades in prison. His father had died. His daughters faced abuse from men their mother lived with.

Another day in Texas, where juries convict defendants easily, but also met out huge civil damages awards, on a regular basis.

June Wet In Colorado

Denver, Colorado entered June a little below the average for annual rainfall to date. We are now already more than two inches ahead of the year to date average (about a third more than normal) and are far above average for June. It is raining again today, so the last few days of June promise to provide even more moisture. If I recall correctly, snow packs also got to slightly more than their annual averages before the season was out in the South Platte River Valley, and close in most other river basins in the state.

It is peak rose season now, with rose bushes in full bloom all over the city. I'm envious has I have made several sincere attempts to make roses grow at my house, always to abject failure despite soil amendments, rose food, diligent watering and everything else I could think of to do. Thankfully, my many Wash Park neighbors are better gardeners than I am.

Impeachment

Impeachment and expulsion are rarely exercised powers of Congress.

Impeachment

Wikipedia notes that the U.S. House of Representatives has voted to impeach someone just eighteen times in U.S. History. Just seven of those cases (all judges) produced removal based upon a U.S. Senate trial, although five other of the impeached individuals were removed from office after the impeachment by other means (including on Secretary of War who resigned, and not including President Nixon who resigned under threat of impeachment).

In forty-four other cases, impeachment was attempted, but failed to receive a sufficient vote in the U.S. House or were rendered moot before a vote was held, most concern Presidential actions, although Treasury Secretary Andrew Mellon, Supreme Court Justice Abe Fortas and President Richard Nixon all resigned in response to the threat of impeachment hearings.

Fourteen of those cases where an impeached was voted in favor of by the U.S. House involved judges. In four of those cases the judge was acquitted in a trial before the U.S. Senate, three resigned, and seven were removed after U.S. Senate trials. One of the removed judges was later elected to the U.S. House of Representatives.

Two impeachments of U.S. Presidents each produced acquittals after U.S. Senate trials. A U.S. Secretary of War resigned and then was acquitted. A case against a U.S. Senator was dismissed when the U.S. Senate expelled him (which is now seen at the proper process as opposed to impeachment for legislative elected officials).

The impeachment power extends to all federal employees and officers (with the exception of elected legislators), but no one whose position is not subject to U.S. Senate confirmation, other than two U.S. Presidents, have ever been impeached, and no one not subject to U.S. Senate confirmation has ever been removed from office via impeachment.

Expulsion from Congress

Another rarely used Congressional power is the power of a House of Congress to expel its own members. Seventeen members have been expelled (reversed in two cases posthumously) for supporting the Confederacy in the civil war. One was expelled from the Senate for treason in 1797 (he was elected to state office a year later and died of natural causes two years after that). Two were expelled from the House for bribery (among other concerns), both of whom ultimately also endured criminal convictions.

Fourteen Senators were expelled for supporting the Confederacy (in one case a decision posthumously reversed), and one was expel for treason in connection a British and Indian supported insurgency in Spanish Florida in 1797. Sixteen more failed attempts were made to expel U.S. Senators. One Senator's term expired and another Senator died before the process was complete, five resigned, and nine Senators were not expelled because the measure did not receive sufficient support in the Senate (one of the nine resigned shortly after winning the Senate vote). Nine more Senators have been censured (and only one of them won re-election).

Five members of the U.S. House have been expelled, three for supporting the Confederacy (one of which was posthumously reversed) and two for corruption (one was criminally convicted after being expelled for the same acts, the other was criminal convicted before being expelled). At least six members of the U.S. House have resigned under threat of expulsion. At least nine more attempts were made to expel members of the U.S. House were made but not completed (one resigned shortly after the unsuccessful vote, one's term expired before proceedings were complete, one died before proceedings were complete and six were exonerated). At least seven members of the U.S. House have been censured, two of whom then resigned from office.

State and Local Cases

At the state level, at least twelve Governors have faced impeachments by state legislative bodies, with two acquitted, one "suspended from office" without a trial of the impeachment, and the others removed. Another Governor avoided an impeachment by just a single vote in a state house. Some lesser state officials have also been impeached. Many states permit judges to be removed from office by means in addition to or other than impeachment.

One of the first cases I worked on, when I was still a summer associate not yet admitted to the bar, was an effort to expel a member of a city council (it failed).

Executive Branch Lobbying Ethics

Professional efforts to influence the legislative and judicial branches of government are heavily regulated and have a body of case law clarifying what constitutes a conflict of interest. Efforts to lobby the executive branch, in contrast, are less regulated and can create subtle conflicts of interest "when: (i) a lawyer properly may, and was retained by the client to, influence an agency decision maker; and (ii) there is a significant risk that allocating influence on behalf of one client is reasonably certain to inhibit substantially the lawyer’s ability to influence the same decision maker on behalf of another client."

Some first rate thinking about these ethical issues can be found in a new article on the subject by Heidi Reamer Anderson called "Allocating Influence." I also like the historical frame that Anderson puts on the issue:

Influence peddlers, influence seekers, and government officials have a long and fascinating history. Centuries ago, those in need of government action greatly appreciated the value of 'an audience with the king' and paid handsomely for such access, to the benefit of both the influence peddler and the influence seeker. Twenty-first century influence peddlers offer influence seekers a similar service, but often do so subject to restrictions not faced by their medieval predecessors.

While we think of ourselves as a democracy and a republic, which we are because we rely on elections as ultimate arbiters of key decisions and lack a hereditary monarch, the government of the United States is just a shadow's breadth away from being a constitutional monarchy or oligarchy. Our federal judges serve for life (Judge Samuel Kent had been convicted of a felony, was serving his sentence, had been impeached in the House of Representatives and was facing an imminent impeachment trial in the U.S. Senate before his written resignation finally removed him from office this week), it isn't unheard of for U.S. Senators, members of the U.S. House of Representatives to spend multiple decades in office, and a large share of Presidents leverage their incumbency into a second four year term of office. Between biannual elections, those in power have an virtually uncontestable right to govern as they collectively see fit.

Elections, and the threat of elections do matter, those in power have had the grace to provide for public input, and the right to offer public input is constitutionally protected. But, our history as a modified monarchy explains a lot of American public law, the nature of judicial authority, and more.

Aurora Police Retaliate Against Cop Suing Lawyer

The lawyer representing the family of a man shot by Aurora police last month says police have retaliated against him by towing his legally parked vehicle from in front of his office Monday morning.

Lawyer Derek Cole said he was on the phone with Police Chief Dan Oates on Monday morning, talking about setting up a meeting with his clients when Oates asked for, among other things, his work and home addresses.

By the time Cole got off the phone and made it back to his office, his Volvo had been towed by police for improper registration. Records showed his registration had expired, even though he had current tags...

Cole is the attorney for the family of Darius Murray, who was shot by police May 9.

Police at first reported that Murray, 19, accidently shot himself in the head, after officers investigating a car burglary shot him in the leg and shoulder. They later changed the story, saying an officer fired the shot to his head after Murray fired at them first.

Aurora police spokesman Bob Friel said the call and the towing were not related and there was no retaliation by the chief or the department.

"There is no connection between the car and the call," Friel said. "As to the reason why we towed it, it was in violation of the law."

After further investigation, police determined the registration record was not accurate and Cole's registration was, indeed, current.

From here.

I'll state the obvious. The cops are lying in the underlying case and they are also lying about not having the car towed. This case doesn't pass the plausible deniability test. At the very least, towing a car for bad registration when it has valid stickers on the plate is both reckless and inexplicable. Crime is not so low in Aurora at the moment that people are randoming trawling the vehicle registration records to look for unregistered vehicles to tow. This doesn't happen, ever. It certainly doesn't happen by accident to someone currently bringing a suit against Aurora cops for wrongful use of force while he is on the phone with the police chief providing contact and location information.

Aurora Police Chief Dan Oates, or someone who was in contact with him, committed a serious crime. A civil excessive use of force case is now a criminal conspiracy to obstruct justice case as well. Two people have recently been sentenced to death in Arapahoe County for interfering with pending court cases. It is not appropriate for the authorities to simply blow off this incident. The public integrity section of the FBI, the Aurora Police Department's Internal Affairs unit, the Colorado Attorney General, the judge in the civil case, and the Aurora City Council are all in a position to take action here.

Even if Oates didn't personally order this done, he should be fired for failing to maintain discipline in the Aurora police force.

Friday Quotes On Optimism and Pessimism

I must study Politicks and War that my sons may have liberty to study Mathematicks and Philosophy. My sons ought to study Mathematicks and Philosophy, Geography, natural History, Naval Architecture, navigation, Commerce and Agriculture, in order to give their Children a right to study Painting, Poetry, Musick, Architecture, Statuary, Tapestry and Porcelaine.

-- John Adams, 1780 letter to his wife Abigail.

If you are up to your neck in crap, don't let your head hang.

- German proverb

Oh No! Mom's on a diet . . . we're all gonna die!

-- Refrigerator Magnet, Unknown Author.