2d Circuit Court of Appeals holds the Defense of Marriage Act unconstitutional.

This comes in addition to a similar decision from the First Circuit last May.

The case was bought by a woman whose wife — wife, under New York law — had died. The surviving spouse wants to qualify for a deduction in federal estate tax law. Having the marriage unrecognized under DOMA cost this poor woman — who'd been with her partner for 44 years — $363,053 extra dollars in taxes.

Judge Dennis Jacobs, who wrote the majority opinion, said the federal law was “not related to an important government interest,” concluding that “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”

ADDED: Here's the opinion (PDF). The language quoted above signaled that the court decided to heighten the level of scrutiny to what's called the "intermediate" level (below "strict" scrutiny and above "minimal" scrutiny), and in fact that is what I'm seeing in the text. The court recognizes that The Supreme Court has never explicitly raised the level of scrutiny. It was cryptic in Lawrence v. Texas, and it's nice to see the 2d Circuit openly take on the subject of whether to heighten scrutiny, instead of the usual bumbling along at the minimal scrutiny level:

1. Has this group "been historically 'subjected to discrimination'"? A "yes" here supports heightened scrutiny.

Perhaps the most telling proof of animus and discrimination against homosexuals in this country is that, for many years and in many states, homosexual conduct was criminal. These laws had the imprimatur of the Supreme Court...

2. Does this group have have "a defining characteristic" that "frequently bears [a] relation to ability to perform or contribute to society"? This is a reason not to heighten scrutiny (and it explains why there is no heightened scrutiny for the mentally disabled and for the old).

The aversion homosexuals experience has nothing to do with aptitude or performance.

3. "Is there obvious, immutable, or distinguishing characteristics that define them as a discrete group?" "Yes" here favors heightened scrutiny.

We conclude that homosexuality is a sufficiently discernible characteristic to define a discrete minority class.... [Defendants] argue that sexual orientation is not necessarily fixed, suggesting that it may change over time, range along a continuum, and overlap (for bisexuals). But the test is broader: whether there are “obvious, immutable, or distinguishing characteristics that define . . . a discrete group.”... What seems to matter is whether the characteristic of the class calls down discrimination when it is manifest....  "[T]he Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.”

4. Is the group “a minority or politically powerless"?

The question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination. When the Supreme Court ruled that sex-based classifications were subject to heightened scrutiny in 1973, the Court acknowledged that women had already achieved major political victories... The Court was persuaded nevertheless that women still lacked adequate political power, in part because they were “vastly underrepresented in this Nation’s decisionmaking councils,”  including the presidency, the Supreme Court, and the legislature.... [I]t is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private--which, for our purposes, amounts to much the same thing. Moreover, the same considerations can be expected to suppress some degree of political activity by inhibiting the kind of open association that advances political agendas....

Analysis of these four factors supports our conclusion that homosexuals compose a class that is subject to heightened scrutiny. We further conclude that the class is quasi-suspect (rather than suspect) based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi-suspect. While homosexuals have been the target of significant and long-standing discrimination in public and private spheres, this mistreatment “is not sufficient to require ‘our most exacting scrutiny.’”

"Like-A-Hug is a wearable social media vest that allows for hugs to be given via Facebook, bringing us closer despite physical distance."

"The vest inflates when friends 'Like' a photo, video, or status update on the wearer's wall, thereby allowing us to feel the warmth, encouragement, support, or love that we feel when we receive hugs. Hugs can also be sent back to the original sender by squeezing the vest and deflating it."

Ha ha.

Via Jezebel via New York Magazine, both of which seem to assume it's a real device intended seriously. I say seem because I acknowledge the possibility that Jezebel and New York Magazine have a drier sense of humor than does Melissa Kit Chow. Judging from the clunky sarcasm Jezebel and New York openly aim at Chow, I'd say the possibility that there's an underlayer of subtle humor is low.

Gov. Cuomo wants to permit fracking, but only in a few counties along the Pennsylvania border...

... and only where the local populace supports the activity.

He's trying to balance between the people who worry about contaminating the groundwater (and cutting down trees) and those who fear the state will be left behind as other states tap the Marcellus Shale.

The Marcellus Shale is a rock formation that stretches from the Appalachian Mountains into the central and western parts of New York. State regulators believe that by limiting drilling to areas where the Marcellus Shale is at least 2,000 feet deep, risks of contaminating the water supply with toxic chemicals will be reduced. Regulators would require drillers to maintain a 1,000-foot buffer between water sources and the top of the shale formation.

"Ridiculous NY-09 spin: 'It’s a very difficult district for Democrats.'"

Ed Morrissey laughs.

Just how big is the NY-09 result?

"As the 51st governor of New York from 1975 through 1982, [Hugh] Carey led a small group of public servants who vanquished the fiscal crisis..."

"... that threatened New York City and the state — the direst emergency a governor had faced since the Depression — by taking on powers over the city’s finances that no governor had wielded before and none has wielded since. A liberal Democrat, Mr. Carey reversed the upward spiral of borrowing, spending and entitlement under his predecessor, Nelson A. Rockefeller, a Republican who had presided in an era of limitless government promise."

He was 92. It's good to remember what happened in the 1970s, what he "vanquished," and how some people back then imagined "limitless government promise."

Hugh Carey was born in 1919. ("He fought with the 104th Division in France, Belgium, the Netherlands and Germany, helping to capture Cologne and liberate prisoners at a concentration camp at Nordhausen.") He had 13 children. Nelson Rockefeller, by the way, was born a mere 11 years earlier, and he's been dead since 1979.

Gay marriage in New York State is "a BFD because a Republican-led State Senate passed this law."

Writes Andrew Sullivan:

Going outside traditional Democratic party lobbies to appeal to those on the other side who are open to our arguments was essential.... Governor Cuomo, by all accounts was magnificent at the politics and Mayor Bloomberg and critical Republicans and Democrats and all factions and groups in the gay movement - even HRC! - pulled together. That the most passionate opponent was a Democrat and the most powerful were Republicans helps scramble the attempt by the Christianist right to coopt conservatism for their reactionary theology.

It's a BFD because it also insists on maximal religious liberty for those who conscientiously oppose marriage equality. A gay rights movement that seeks to restrict any religious freedom is not worthy of the name. And it makes me glad that we largely avoided anything that looks like that strategy, and that last-minute negotiations were flexible enough to strengthen the protections for religious groups, churches, mosques, synagogues and the like. The gay rights movement is about expanding the boundaries of human freedom - and that must include religious freedom if it is to mean anything....

I don't know the details about the religious freedom protection in the bill, but I agree with Sullivan that's extremely important. I put up a quick post last night when the NY vote came in, and I read the comments this morning and saw a lot of fretting about government interference with religion. (For example, what happened to Catholic Charities in Massachusetts.)

NY passes same-sex marriage law.

The vote was 33-to-29, with 4 Republican state senators joining the 29 Democrats.

Good.

Governor Cuomo: "I wanted to go first because I wanted to make the point that I am not just asking other people to do it."

"We are going to be having conversations with labor unions about just this topic, about wages, etc."

He's taking a 5% cut on his salary (which was $179,000).

Good time to go against unions — after all the bad feeling about the snow plowing.

"Any father who would take his children to such things is not really thinking of the fatherly perspective and is more interested in politics."

Said Paladino about Cuomo. Cuomo found that "reckless" and "divisive.”

"I'm not talking to them. They sent me a message. They sent that budget that was out of balance."

NY Governor David Paterson is about to veto 6,900 bills.

ADDED: A song for the occasion:

The official portrait of Jerry Brown (from his old governor days).

Interesting, no? I ran across that at Wikipedia as I was looking up some things this morning. I wasn't checking up on his new campaign for governor. I was trying to remember what had happened in the 1992 Democratic primaries. We'd been talking about Bill and Hillary Clinton. (Would we be better off now if Hillary were President?) And I remembered that back in 1992, early on in the primary season when there were a lot of candidates, my shorthand reason for rejecting Bill Clinton was: He's a Republican. Then I was trying to remember who I voted for in the Wisconsin primary, which I knew was late, after many of those candidates had dropped out. Who was the last man standing in the 1992 Democratic primaries challenging Bill Clinton? It was Jerry Brown. Did you remember that?

As the press now focused on the primaries in New York and Wisconsin, which were both to be held on the same day, Brown, who had taken the lead in polls in both states, made a serious gaffe: he announced to an audience of various leaders of New York City's Jewish community that, if nominated, he would consider the Reverend Jesse Jackson as a vice-presidential candidate. Jackson, who had made a pair of anti-Semitic comments about Jews in general and New York City's Jews in particular while running for president in 1984, was still a widely hated figure in that community and Brown's polling numbers suffered. On April 7, he lost narrowly to Bill Clinton in Wisconsin (37–34), and dramatically in New York (41–26).

Here's a New York Times report, from just before the primary:

Mr. Clinton yesterday appeared to be straddling the divisions between the two groups [blacks and Jews], at once putting an advertisement on black radio stations touting his civil rights record and accusing Mr. Brown of pandering to blacks by saying he would choose the Rev. Jesse Jackson as his running mate.

"I think that we should not play politics with the Vice Presidency, even though it can be a vote-getter," Mr. Clinton said....

At a meeting with a Jewish group on Thursday, Mr. Brown was repeatedly asked how he could expect to win the Jewish vote after embracing Mr. Jackson, who referred to New York City as "Hymietown" in the 1984 Presidential campaign.

For his part, Mr. Brown has tried to appeal to appeal to black and Jewish voters alike with a television advertisement that criticizes Mr. Clinton for playing golf at an all-white country club. Yesterday, Mr. Clinton attacked Mr. Brown for the commercial, which he said distorted his record on civil rights.

"Let me tell you something," Mr. Clinton said. "A few years ago Jerry Brown said the real solution to racial problems was for the white boys to teach black boys how to read and for black boys to teach white boys how to fight. Now, I could have run an ad on that and made him look like a bigot."

Ha ha. I could have run an ad on that and made him look like a bigot. He just said it and got it quoted as if he were refraining from using it. Hilarious. I cannot remember if, in the end, I voted for Clinton or Brown. Probably Brown. What an amazing career that man has had. Astounding that after all these years, he's worked his way back to the California governorship.

And, for an unusual guy, an unusual official portrait, by Don Barchardy.

"An investigation of a sitting governor of New York is a complex, weighty matter indeed."

Says NY Attorney General Andrew Cuomo, appointing, as independent counsel, the estimable Judith Kaye.

The NYT big story about New York Governor David Paterson — focusing on his "closest confidant" David Johnson — is pretty much of a fizzle.

But what's the big deal here? He rose quickly, there are 2 felony drug arrests that date back to his teen years, and there were 3 "altercations with women, two of which led to calls to the police." And:

Some heads of significant government agencies have said they feel they have to go through Mr. Johnson, often known as D. J., to get to the governor. And several current and former administration officials said that Mr. Johnson’s dressing down of the governor’s Washington office in September contributed to the departure of several seasoned people from the office.

“I started getting messages from D. J. telling me to call certain players in my industry,” said one former official, who spoke on the condition of anonymity to avoid antagonizing the governor.

Mr. Johnson, the official said, started to manage administration press conferences, dictating the order and seating of speakers and calling agencies to request they draft statements on particular issues.

“We were all quite surprised about D. J. taking more of a policy role,” another former official said. “It seemed like it was a long way to come in a short period of time for a guy who had been the governor’s wing man.”

Is this the big exposé we've been hearing about? Saturn Smith says:

See, this piece was supposed to be a whopper... It was supposed, over the past two weeks, to be The Story that was going to force New York's inefficient, disorganized governor into becoming the second governor in a row to resign....

... I'm kind of hard pressed to do much more than give a cheer for a guy who has risen from being twice arrested for drug crimes as a teenager in in early-90s Spanish Harlem to being the closest aide of New York's governor....

So then, the big deal here must be the behavior towards women. And yes, it might be appalling. You can kind of sense that the New York Times wanted to just write, THIS IS APPALLING. Unfortunately, they were unable to do so....

The Times is trying to show a pattern of behavior without anything to go on but the word of one witness against the word of several others....

There's an extended section in the middle that is comprised almost completely of strange, neutral quotes about Johnson and how he's recently been seen to take over -- ably -- management of many political and even policy-oriented tasks. No one is quoted saying anything blatantly negative about Johnson's influence in the entire 2,175 word piece....

The piece then charges forward with some stunningly sour-grapes sounding quote...

Was there more to this story that wasn't fit to print?

An inconceivably bad monument.

We are entering Empire State Plaza, that heinous monument to government waste and stupidity:



Just around that corner is the expensive toilet displayed in the previous post. But continue on a few steps, and you will arrive at something beyond comprehension. This is what the state of New York has in its capital as a memorial to the victims of the 9/11 attacks:



I hate to shock you over this, but I must insist that you take a few steps back and gaze with horror at the larger view:

The atrocity that is Empire State Plaza.

You're walking in a neighborhood of 19th century townhouses...



... and you run smack into this:



New York spent $2 billion to demolish 98 acres of 19th century buildings, displacing 9,000 human beings, in order to build a sickeningly ugly collection of government buildings. Is there a worse architectural crime in the history of the world? I'm sure there must be, but...

... it destroyed a neighborhood, isolated downtown from Center Square and created a stark mall that is lightly used and segregated from city life....

Pure evil.



There's whimsy...



... leaden government whimsy.

Look into the sunset...



... and weep.

"Don't look too closely... or you'll see the swastikas...."

Reading this comment from Scott (in the previous post)...

I haven't been through Albany in years. But I do recall that the NY State Education Building is this gigantic federalist pound cake of a building that takes up the entire block and comes right up to the sidewalks. The scale is just so wrong. It's a frightening building....

... made me want to post the little video I took while walking by that building yesterday. The post title is part of the video dialogue:

Beautiful Albany.

My favorite building in Albany is City Hall, also pictured in the previous post:



In front is a statue of Philip Schuyler, a Revolutionary War general, born in Albany:



Also lovely is the building that houses the New York Court of Appeals (the highest court in the state of New York). The Court of Appeals Hall has a fabulous rotunda:



The mural inside the dome is called "Romance of the Skies." It was painted by Eugene F. Savage:



A very new age vibe. With painted sparkles that remind me of a 5-year-old girl's princess fantasy. Visionary, painted in 1959. What it has to do with law, I'm not too sure. Is law some sort of astrology? But what else to paint in a dome in a government building? You can't depict a God anyone believes in, so why not some Greek/Roman gods?

Near the Court of Appeals Hall, is St. Mary's Church:



Nearby, is Academy Park, which has a cool sculpture of Lewis A. Swyer, who seems to want company:



In the background, you can see the New York State Capitol. All I want to say about that building in this post is that I love the magnificent equestrian statue of the Civil War general Philip Henry Sheridan that guards one side of the Capitol:



I won't go on to the New York State Capitol in this post. An overdone horror, it is only beautiful relative to the unbelievable atrocity that is the Empire State Plaza. It will take separate posts to attend to these complicated architectural matters. This post is called "Beautiful Albany," and I will end it here.

"We’re not in the postracial period," says NY governor David Paterson.

"My feeling is it’s being orchestrated, it’s a game, and people who pay attention know that."

"It" = the opposition to his running for (can't call it re-)election as NY governor. Why, if he was never chosen for governor in the first place, does he assume he should be more popular? And, of course, he can't possibly think that this complaint will increase his popularit. Is he giving up?

You judge the new Tina Fey skit spoofing Sarah Palin.

I clicked it off at 1:29 even though I wanted to blog about it. I thought it was too dumb and boring to watch. Waiting all those long seconds with Amy Poehler nodding while the audience got and whooped about an old joke. Presumably, the writers load up the front end of a sketch with some of the good stuff, but all they had was old crap about out-of-towners coming to New York.

You know, Palin-haters, New York's electoral votes will go to Obama. It's people in other states who will decide this thing. Portraying non-New Yorkers as rubes is not only a weak comedy idea. It's a weak political idea. And tip to you comedy writers who imagine yourselves at all sophisticated: If you have a Bush = pubic hair joke, you don't have a final draft.

But, as I said, I clicked off at 1:29. So form your own opinion.

Judges in shorts.

There are a lot of problems with the 1,250 town and village courts in New York, according to a new report, but some things are truly alarming:

Some of the more serious problems uncovered in the report include a duplication of town courts in some areas and a severe shortage in other areas; justices who hand down sentences with seeming disregard for the law; and inadequate courtroom facilities.

The report referred to one judge who threatened a litigant for not adhering to a court order, writing to him on court stationery, “Remember, I know where you live.” The report also described one courtroom that was no more than a small, poorly ventilated room attached to the town garage. Judges told the commission that the room got so hot in the summer that they had to wear shorts while hearing cases.

ADDED: Here's email from Dan Majchrzak of Rochester, NY:

I am a NY attorney, former ADA and currently a law clerk for a State Supreme Court Justice. I can tell you as a former ADA, when I worked in town and village courts, some of the justices were indeed laypersons, but their results and decisions were almost always where the ball would fall if a lawyer-judge were presiding. Being the prosecutor in a small village court with a lay judge, I had a real interest in ensuring that the record was correct and that the judge made the right call--win or lose for me. These judges were always thorough and fair and in many instances, put far more thought into an issue than many lawyer judges would have. I suspect that this report is a call for a full employment act for the bar. The current system has been in place for over 100 years and the results are fair. As far as lay judge misconduct, there is an equal amount of misconduct reported on lawyer judges across the state which is the subject of judicial misconduct reports. So, just thought I'd give you an added perspective on this.