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MC&A Newsletter
Volume XXIII  :: February 2012 

 

Mdiwin Charles

 

In The Spotlight

The Verdict is Out - Ban on Gay Marriage Unconstitutional

handsOn February 7, 2012, the Ninth Circuit Court of Appeals in San Francisco ruled that California's law banning gay marriage, known as Proposition 8 ("Prop 8"), was unconstitutional. The decision upholds Judge Vaughn Walker of San Francisco's District Court August 2010 ruling that the law violates the 5th and 14th Amendments of the Constitution because it discriminates against gays on the basis of sexual orientation and gender. California voters passed Prop 8 in November 2008 to prevent gay homosexual couples from being able to marry. Always at the forefront of legal issues, MC&A brought you news of Prop 8 in our August 2010 newsletter.

 

The Ninth Circuit decision, written by Judge Stephen Reinhardt, was narrow in scope. It says that Prop 8 violates California's guarantee of equality under the 14th Amendment. Justice Reinhardt wrote in the opinion:

  

For now, it suffices to conclude that the people of California may not, consistent with the federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of the right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.

 

Reinhardt's opinion continued by stating that Prop 8 had no rational basis for denying homosexuals the right to marry, as it did not affect homosexual couple's abilities to be parents, nor how children in California are raised. In other words, because California's domestic partnership laws already bestow upon homosexual couples the same rights as heterosexual couples, Prop 8 was in effect taking away the term "marriage" from a relationship that still had all the rights and responsibilities of a marriage. According to Reinhardt, the law did nothing more than outline disapproval for gays and lesbians.

 

Justice Randy Smith, who wrote an opinion concurring in part and dissenting in part, wrote that he was not convinced that Prop 8 lacked a rational relationship to a legitimate state interest regarding raising children.

 

The Alliance Defense Fund, a supporter of Prop 8, was disappointed with the court's ruling and hopes that the Supreme Court will take the case and overturn the 9th Circuit's decision. "No court should undercut the democratic process by taking the power to preserve marriage out of the hands of the people," the group said. Andy Pugno, who is general counsel for the ProtectMarriage.com coalition, the official proponent of Prop 8, plans to appeal the ruling immediately.

 

It is unknown whether the Supreme Court will take the case, but legal scholars believe that the opinion was written in a narrow way to protect the ruling from being overturned. Under the 14th Amendment, states must provide equal protection of their laws - a state law that treats a group of people disparately can be unconstitutional - which is what the 9th Circuit determined regarding Prop 8. Loyola Marymount University professor Evan Gerstmann stated that "[t]he court focused on specific facts in California," which makes the decision inapplicable in other states.

 

Sources: "Appeals court rejects California's Proposition 8," by CNN Wire Staff, Feb. 7, 2012, www.cnn.com; "Court Rejects State Ban on Gay Marriage," by Geoffrey A. Fowler & Jess Bravin, Feb. 8, 2012, The Wall Street Journal

  

Washington Man Kills Self and Children - Could the Courts Have Prevented It?

powelKidsOn February 5, 2012, Josh Powell killed himself and his two young sons by igniting his house on fire during a supervised visit.  A social worker brought the two boys, ages 5 and 7, to Powell's house for their scheduled visitation.  The boys rushed inside and Powell immediately slammed the door shut and locked it.  He than hatched the boys and lit the house on fire.  It appears that the police department had information about Powell that, if brought to the court's attention, would likely have prevented this tragedy from occurring.

 

Powell was a person of interest for the disappearance of his wife, Susan Powell, in 2009.  A month after Susan's disappearance, he and his two boys moved to Pyuallup, Washington to live with Powell's father, Steve.  The state took custody of Powell's sons when police found child pornography belonging to Steve during a search of his home and computers for evidence in Susan's disappearance.  The boys were turned over to Susan's parents, with Powell having supervised visitation with the boys twice a week at his home.

 

Powell attempted numerous times to regain custody of his sons.  The court ordered a psychological evaluation, but the assigned psychologist waited to finalize the report in hopes that he would have the opportunity to review materials that Utah police found on Powell's computer.  The materials did not, however, arrive in time for the custody hearing.  When they did arrive, the psychologist viewed them and provided an addendum to his report recommending that Powell undergo a psychosexual evaluation.

 

The Sheriff's office had a viewing of the materials and in attendance were assistant attorney general John Long and a Child Protective Services social worker.  Powell's attorney was not in attendance due to miscommunication about the viewing.  Two days after the viewing, a Judge heard Powell's arguments for regaining custody of his children.  Long opposed Powell's request because the police in Utah had obtained "concerning" photographs from Powell's computer. The photos were not, however, provided to the court.  The Judge denied Powell's request and ordered Powell to undergo the psychosexual exam.  In the meantime, Powell could see his children for supervised visitation at his home.
 

Lawmakers are concerned that the state failed to properly act upon the information revealed in the images found on Powell's computer.  Senator Pam Roach said, "[i]t appears DSHS was forewarned about information regarding Joshua Powell and the treatment of his boys . . . DSHS needs to come clean with what they knew.  Having information pertinent to the welfare of the Powell children, and not acting on it, may have actually contributed to their deaths."

 

Steve Downing, attorney for Susan Powell's parents, believes that Powell decided to kill his children because they were on the verge of implicating Powell in Susan's disappearance.  Downing said the boys were old enough to verbalize what happened to their mother.  "The oldest boy had said that they went camping and that mommy was in the trunk.  Mom and dad got out of the car and mom got lost."  Now, the truth will likely be buried with the Powell family.

 

Sources:  "Powell had 'incestuous' images on his computer, police say," by Associated Press, Feb. 10, 2012, www.foxnews.com; "Wash. Lawmaker questions whether child services ignored warnings before Powell boys' deaths," by Ben Winslow, Feb. 9, 2012, www.fox13now.com; "Josh Powell, Children Dead After Murder-Suicide," by Caitlin Bronson, Feb. 6, 2012, www.thirdage.com
 

 

 

Obama's Contraception Mandate Aborted

Due to pressure from religious groups, President Obama has modified his contraception mandate. Earlier this month, Obama instituted a new rule requiring employers to provide health insurance coverage for birth control to employees. Religious institutions were outraged by the mandate and claimed that it violated their First Amendment right to religious freedom because it required them to pay for and provide birth control - something that the Catholic faith does not support. To quell the religious outcry, on February 10, 2012, President Obama announced that he was amending the mandate. This compromise provides Catholic institutions an out. Obama stated, "if a woman's employer is a charity or a hospital that has a religious objection to providing contraceptive services as part of their health plan, the insurance company - not the hospital, not the charity - will be required to reach out and offer the woman contraceptive care free of charge without co-pays and without hassles."

 

Sources: "So the White House Didn't Cave on Birth Control, Right?," by Andrew Rosenthal, Feb. 10, 2012, www.nytimes.com; "Why the White House Botched Contraception," by Chris Stirewalt, Feb. 13, 2012, www.foxnews.com

MC&A is firmly committed to our valued clientele.  We provide services in the areas of litigation, criminal law, and general corporate and business law.

For more information about how we can be of service to you, call us at 212.551.3617 or send an email to info@charleslawfirm.com.

Midwin Charles & Associates LLC
230 Park Avenue, Suite 1000
New York, New York 10169
212.551.3617
www.charleslawfirm.com

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