Mormons say that marriage is "1-man and 1-woman"

You may have heard that last week the US courts struck-down a part of Utah's state constitution, which prohibits gay-marriage, on the grounds that it was violated civil rights. There was a similar ruling in New Mexico a few days earlier.

What happened?

It all goes back to earlier this year when the US Supreme Court (USSC) scrapped part of the US federal government's 1996 Defense of Marriage Act (DOMA). The USSC could have thrown it out on the basis that it went against the 10th Amendment, which reserves certain powers, such as marriage, to the States themselves. It did not do this; instead held that it violated the 5th Amendment of the US Constitution on due process.  This meant that the USSC's ruling could be cited in opposition to bans within the states themselves.

The Utah ruling is a fun and easy read: effectively Utah was claiming "The public have said 'Homos, eww!'"; "It's tradition"; and "Gays can marry people of the opposite sex" (no, really, the Judge refers to this argument made by them in his ruling!). Shockingly, the Judge held that these are not valid reasons to ban gay couples from marriage.

Based on the USSC's ruling, the gay-marriage-ban part of Utah's constitution was also held to violate the 5th Amendment, and because the US Constitution overrides conflicting State constitutions, that specific part of Utah's constitution is unenforceable.

Had the USSC ruled instead that DOMA went against the 10th Amendment, there is a good chance that Utah's ban would still be in place, on a states'-rights basis.

What happens next?

Utah has said that it will appeal, because it wants to protect "traditional marriage", i.e. 1-man & 1-woman only. For a state run by the Mormons that's an odd position to take...

In the meantime, Utah is trying to get a stay of the original ruling. They forgot to get a stay at the time of the original hearing, and so the Judge's ruling went into immediate effect. As a result, lots of gay couples within Utah are now getting hitched.

Utah now has to try and convince the courts that a stay is required. At first they went to the original judge, but he turned them down; they went to the 10th Circuit (the appeal court), who at first told them to do their job properly, because they had not done a formal application. Once a proper application had been submitted, the appeal court also rejected a stay. They are now trying to get a stay from the USSC, who it seems will operate under the same rules that apply in the appeal court.

However, as someone pointed out on Fark, I do not think that they will be able to get one.

In order to obtain an injunction, under r. 8.1 of the 10th Circuit Court, as well giving supporting statutes and caselaw, Utah has to show that:

• There is a good chance that their appeal will succeed;
• Utah desperately needs a stay; 
• The gay couples won't be negatively impacted by a stay; and
• There is a pressing public need for a stay

Given that they simply want to stop gay couples from marrying, it's very unlikely that the courts will allow this, never mind the impact on the couples. The appeal court basically said as much in its rejection.

What is the likely outcome?

What is worth keeping note of, is the fact that the appeal court has said that it is perfectly happy to hear an appeal of the ruling, and it will schedule one for some point next year. In the meantime, and unless the USSC grants a stay, gay couples can get married within Utah.

If the appeal court overturns the original ruling, which their rejection of the stay suggests is unlikely, then Utah will once again ban gay couples from being married.  However, as in California while Prop 8 was working its way through the courts, it is very unlikely they they will "unmarry" any couples that have got hitched in the meantime.

Should they uphold the original ruling, then that effectively kills-off similar laws in the other states that the appeal court covers, such as Wyoming; Kansas and Oklahoma.  Similarly, should either side appeal to the USSC, which then upholds the original decision, that's the end of gay-marriage bans in the US.

As above, DOMA was thrown-out on discrimination grounds. Therefore, the appeal court will almost certainly feel bound by the USSC's ruling, like the original judge. As a result, the USSC will have to go back on its original position, and so hold that gay-marriage bans don't violate the 5th Amendment, and, frankly, it would need a fucking good reason to do so. This is why it won't happen.

Summary

Overall, that's basically the end of Utah's gay-marriage ban, and possibly those in other areas covered by the appeal court.

In addition, given the Judge's reasoning, his judgment is likely to be cited in gay-marriage cases in other US states, even where the appeal court doesn't have jurisdiction.

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Gay marriage and transsexuals

Hello! I'm back!

I've not been up to anything interesting since my last post, other than moving house - I'm now a Dalston Hipster - and asking my girlfriend to marry me on her 30th birthday while we were in Paris (romantic, aren't I?).

Anyway, you've probably heard that the Marriage (Same-Sex Couples) Bill was passed and received Royal assent.  This is a good thing.  As Jack of Kent points out, it's not correct to say that gay marriage is now legal in England & Wales, but that's simply because the Act is not in force, and it probably won't be until some time next year.

Unfortunately, it appears that the Act discriminates against transsexuals: if you want to have a sex-change, but your husband/wife opposes it, they can force you to divorce them or get an annulment. This has been labelled a "Spousal Veto". (Thanks to Left Outside for the link).

This is clearly a bad thing.

However, I don't think that it will have any real impact, because there seems to be 4 possible situations:

1. You want a sex-change. Partner says "No". You decide not to have one
2. You want a sex-change. Partner says "No". You decide to have one
3. You want a sex-change. Partner says "Yes". You decide to have one
4. You want a sex-change. Partner says "Yes". You decide not to have one

In the first, third and fourth situations, the law is not relevant.  In the second situation, clearly your partner doesn't want to be with you, and so an annulment/divorce would be likely to happen no matter what.

I guess there's also a possibility of the law itself being challenged on human rights grounds (most likely Art. 12 and Art. 14, and possibly Art. 8 and Art. 10), but I don't think that there could be any situations in which challenges could be raised, other than those relating to annulments, to which #2 would still apply.

So it seems that either the Act will no impact on transsexuals, or will be helpful.

Of course, it would have been preferable had the law been drafted in a way so that the issue didn't arrive...

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The "Common Sense of the Jury"...

You're probably aware that the ex-wife of ex-Lib Dem Minister Chris Huhne is on trial for allegedly helping him get out of a speeding ban.

Huhne has pleaded guilty to the charge. Ms Pryce has accepted that she took the point, but is basing her defence on the rare "martial coercion", i.e. she was forced to do it by her husband.

After being out for 14 hours, the jury have been discharged after being unable to reach even a 10-2 verdict.

Before that happened, they provided a list of questions to the Judge.  I don't have a problem with Juries asking question of the case, and it happens regularly, but in this case there has been massive problems.

The BBC have the questions and his responses, which can be summarised as:

1. It's a term in plain English
2. [He must have been lost for words, given the question]
3. [Sensible question]
4. See #1
5. WTF?! You can't simply make stuff up!
6. There's an presumption of innocence, not guilt. The Prosecution have to convince you, not the Defendant
7. See #6
8. See #5
9. Do you actually know what the job of a Jury is?
10. That's completely irrelevant

So that's 1 sensible question out of 10. Oh dear!

From reading the Judge's responses, he must have been thinking to himself "Do these people know anything?!". After all, he is quoted as saying they showed a "fundamental deficit in understanding" of what they were supposed to do.

I guess this shows the basic flaw in jury trials: they're based on an assumption that the ordinary member of the public is reasonably intelligent. Clearly this assumption was invalid to at least some of the people that had been chosen to serve.

Of course, this makes you wonder if other juries have had similar questions, and if so, how have they decided that issue.

I still think that Jury trials are a good thing to have, even if it is for little else than for having the ability to pretty much turn around and say "I don't care if he would be guilty, this is complete bollocks".

There will be a re-trial starting next Monday.  Hopefully the next lot will do a better job. Tweet

Training for the future

Over the past few weeks the government has made some big announcements on spending on public infrastructure.

They've published their plans for a second high-speed train line that will run from London up to Birmingham after which it splits to go to Manchester or Leeds. This will be called "High-Speed 2" (HS2).

As far as I can tell, it is needed because the trains out of London Euston, up to Birmingham and the north-west, will be full in about 20 years' time. Euston currently has lots of long-distance trains (Virgin Trains); lots of local trains (London Overground) and lots of trains-that-are-not-quite-local-but-not-quite-long-distance (London Midland). The train line itself also has lots of freight trains. In about 20 years' time there won't be enough space for all of them, and the idea is to build a separate train line for the Virgin Trains, which will create more space for the other lot.  It'll also make my journeys back home to Lancashire much quicker.

It seems to be one of those all-too-rare occasions where plans for being made for the future, and also a good idea.

Separately there appear to be formal plans for a "Crossrail 2". Yes, that thing that's currently ripping up numerous bits of central London is likely to gain a younger brother or sister.

The basic plan is for a tunnel from outside Wimbledon that will lead to London Victoria; Tottenham Court Road; Euston-King's Cross-St. Pancras; and Angel then up through north-east London in two directions.

Apparently it will solve a lot of transport issues in London and the south-east: it'll remove lots of local trains from Waterloo, creating room for longer-distance ones; and will help the Victoria and Piccadilly lines, as well as creating space on the trains in north London. It'll also make massive reductions in travel times across London.

TfL have previously said that it should be built with HS2, but now it seems that it is essential to build it, otherwise Euston won't cope with the amount of extra people that HS2 will bring in.

As an alternative, TfL propose starting it at Wimbledon and only having the trains go in one direction after Angel.

Hopefully it will be built - I currently live in one of the areas that would stand to benefit from it, and given that I struggle to squeeze on my train in the morning I fully support the plans - and there's a good chance given that both TfL and Network Rail both support it. The only down side is that it is unlikely to do so for about 20 years, i.e. when the HS2 Manchester and Leeds bits open... Tweet

Nothing but Job-Killing Regulations and Red Tape!

Just over a year ago I did a post on how the UK's economy was being strangled to death by "job-killing regulations and red tape", and how the Tories were justified in their plans to reduce claims for unfair dismissal. Or, much more accurately, how such claims are a complete load of rubbish.

The sources have since published updated versions of their reports, and I thought it'd be a good idea to do a follow-up post.

In 2011, we had the following:

• World Bank "Ease of Doing Business" - #4;
• Heritage Foundation "Index of Economic Freedom" - #16;
• Fraser Institute "Economic Freedom of the World" - #8;
• World Economic Forum "Global Competitiveness Report" - #10;
• World Economic Forum "Global Enabling Trade Report" - #17.

Overall, between these 5 reports of differing political leanings, the UK ranked #11.

In 2013, these have changed to:

• World Bank "Ease of Doing Business" - #7;
• Heritage Foundation "Index of Economic Freedom" - #14;
• Fraser Institute "Economic Freedom of the World" - #12;
• World Economic Forum "Global Competitiveness Report" - #8;
• World Economic Forum "Global Enabling Trade Report" (2012) - #11

Overall, these 5 reports suggest that the UK ranks #10 in how easy it is to run a business.

Once again, we can clearly see that the UK is not a bureaucracy-ridden hell-hole as some may claim...

So, how does the government respond to this clearly appalling situation? Well, it seems that they are trying to scrap s. 47 Health and Safety at Work etc. Act 1974 which would make it more difficult to sue your employers for breaches of health and safety laws.

Given what the reports say, I'd thought I should give the government some free advice: there's better ways to help the struggling UK economy; your plans appear to be simply an excuse to push through ideas that will do little other than screw people. 

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D-Notice Album of the Year Award 2012

Ever since I started this blog I've done an almost-annual round-up of the CDs that I've purchased over that year.

For the past two years the round-up has been a bit lacking due to a combination of apathy and lack of time. In fact it seems that I didn't do one at all for 2011!

It's unlikely that I'll do one for 2012 either, but instead will link to my Spotify playlist that contains tracks from those CDs and my random tracks of 2012 one. I'll also link to my 2011 CD playlist and the 2011 random tracks one given that they don't seem to have put on here.

Will I do one for 2013? Who knows? At the very least you'll get two Spotify playlists out of it: my 2013 CDs and the year's random tracks that I've enjoyed.

You should also check out my Soundcloud feed for other stuff that I've liked. In fact that's probably a better option because I seem to be updating that much more frequently that the random tracks one on Spotify.

As for the coveted "D-Notice Album of the Year Award for 2012", that goes to Grimes - Visions for her weird electro-Kate Bush album. Its the one I've listened to the most and it remains as enjoyable as the first time it put it on.

The Award for 2011 goes to Anna Calvi for her self-titled album, with the usual disqualifications for Radiohead and the Fiery Furnaces' Eleanor Freidberger on grounds of personal bias.

The 2010 award, which again it seems that I didn't actually hand out, goes to Yeasayer - Odd Blood.

They join such lucky recipients as Arcade Fire (2005); The Knife (2006); Von Sudenfed and Battles (2007; joint award); The Bug and Hercules & Love Affair (2008; joint award) and The Horrors (2009). Tweet

Stuck in a Rutland

There was an interesting post in the New Statesman today: that Rutland County Council are planning on suing some of its critics for libel. Apparently they're being targeted by anti-corruption campaigners. *plays tiny violin*

They have obtained legal advice saying that due to s. 1 Localism Act 2011, they now have the power to sue people for defamation.

As the piece points out, the advice, especially para. 11, seems to be wrong.

Basically it boils down to an interpretation of the phrase in s. 1(1) that councils have the "power to do anything that individuals generally may do". The solicitors say that this overrides a 1993 House of Lords case that banned local government from making defamation claims on public policy grounds. The article suggests that the legal advice has misinterpreted both the case and the Act.

The House of Lords case has a great quote:

There are, however, features of a local authority which may be regarded as distinguishing it from other types of corporation, whether trading or non-trading. The most important of these features is that it is a governmental body. Further, it is a democratically elected body, the electoral process nowadays being conducted almost exclusively on party political lines. It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech.

I'm not a libel lawyer, but - given that the advice contains basic and sloppy errors, and has a general lack of actual quotations from the House of Lords judgment, and only make very brief reference to it - it seems that they told they client what they wanted to hear.  Oddly, they also seem to suggest in para. 17 that the Council "send the heavies round"...

Para. 11 of the advice also says:

"a local authority is now dependant on its public reputation for its ability to secure external funding, to attract competitors for the provision of services, or to recruit outstanding officers"

I would advise that threatening people with libel claims who raise allegations of corruption is not a good way for a local authority to maintain its reputation...  Also, the Lords judgment does actually refer to this situation, and so clearly has taken it into account.

Anyway, the Council had a public meeting tonight at which they apparently voted in favour of libel proceedings but deferred a vote on whether to actually issue them. They also seems to have voted to indemnify the councillors in any proceedings for harassment.

I guess we'll have to wait and see what happens next...

As an separate issue, we have Eric "Slendertone" Pickles for such sloppy drafting of the Act that Rutland base their stance on.

UPDATE: Rutland have put out a statement on the vote. They confirm they'll be making harassment claims and that the council will indemnify its councillors' costs, but deferred a vote on the libel claim. Tweet