So I'm a little late to this party....

The California same-sex marriage decision is fascinating on a number of fronts, but the one that stands out the most for me is that the Court held that it didn't matter whether you call it marriage, domestic partnership, or civil union, as long as the name applies to all persons across the board. The Court gave the Legislature permission to get out of the business of marriage altogether; the Legislature could abolish the legal status called "marriage" and replace it with a system called "domestic partnership" for all persons, leaving "marriage" to religious institutions alone.

In this sense, it is similar to the French marriage laws - - religious marriages are not legally recognized, as the couple must also have a civil ceremony to make the marriage legal. Furthermore, this case arose within the background of California's domestic partnership law, which (legislatively) bestowed upon same-sex couples all the rights and responsibilities of marriage, a la civil unions. What mattered for the Court was calling the system for same-sex couples by a different name was inherently discriminatory - - in other words, the term "marriage" itself bestows a legitimacy upon the relationship that the term "domestic partnership" does not.

Words really matter, after all.

Whether any state follows this is hard to say. California treats sexual orientation as a suspect classification for the purposes of its state equal protection clause. I would imagine that most other states do not treat sexual orientation the same way - - that suspect class status was the key here. If other states do not treat sexual orientation the same way, then the argument that the terms matter fall apart. It wouldn't work here in Pennsylvania, for example, where us LGBTs are routinely discriminated against.

I am still waiting for some state to step up and find that their marriage laws violate the Federal constitution, which would guaran-damn-tee that SCOTUS gets involved. I just hope it happens after President Obama gets to replace Scalia and Thomas.

News & Updates

I have registered my own domain - www.attorneycharlesthomas.com - with the hopes of getting a real practice up and running in the foreseeable future. In the meantime, I am trying to figure out how sync up all my services over there.

Some people never learn...

Remember the DC administrative law judge who claimed $54 million in damages over a missing pair of pants? He's at it again, although this time he is only after $1 million and his job back.

Inside the mind of a juror

Trial attorneys often wonder what goes on inside the jury room. Here's a very detailed look thanks to a juror in the Uma Thurman stalking case who also happens to be a reporter for the Wall Street Journal.

How did this slip through?

Not being a patent attorney, I don't pay much attention to patent law. There are occasionally stupid patent decisions that get my ire up, but by and and large the ins and outs of patent procedure, but apparently two-thirds of the patent judges were unconstitutionally appointed. DoJ hasn't even denied it, and constitutional lawyers are all in agreement that it's not even close.

This could REALLY muck things up for the patent bar, which (unsurprisingly) didn't notice the error because patent attorneys are generally not accustomed to thinking about things constitutionally. Imagine all the patent hearings and appeals that must be redone, that are invalidated, all those millions once again at stake.

The dark side of DNA

The Times has an excellent article on "surreptitious sampling," the police practice of collecting DNA samples from suspects without their knowledge (and without a warrant). In a typical case, the cops follow a suspect who may happen to be smoking a cigarette or drinking a soda. The cigarette butt or soda can collects trace amounts of saliva, which contains the suspect's DNA. The suspect throws the butt on the ground (with his DNA on it), the cops pick it up, and then they have a sample.

Prosecutors love the practice, defense attorneys hate it. I don't know how I feel, to be honest. The ordinary rule is that if a person throws something away, they lose any expectation of privacy they may have in the item- no probable cause. The ordinary rule, however, was for objects. In these cases, what the cops want is the traces of DNA left on the object, something that the suspects may not have even realized they were leaving behind. I honestly don't know what to make of this right now, but I am damn intrigued.

A return to blawgging

I haven't been posting lately. By lately, I mean in the past 10 months. I am not really at liberty to discuss it, but I had to focus on other things. My situation is stabilizing, and I really miss writing about the law. So I am back.