Oklahomo!

Last Christmas, I wrote a piece about Utah's gay marriage ban being struck-out as it was discriminatory.

I said that they would not be able to get a stay on the ruling. I was wrong, but the ruling was upheld on appeal.  However, earlier this week the US Supreme Court (USSC) rejected Utah's application for a further appeal.  As a result, Utah's gay marriage ban is dead and buried.

At the same time, it also threw out similar appeals by Oklahoma (which is also affected by the Utah ruling), Virginia and Wisconsin.

Based on how appeals work in the US, the USSC's actions (or rather its lack of action) has a much bigger impact than to simply kill off those States' bans: the appeals were from various regional courts, which also cover other neighbouring states, such as Colorado and North Carolina, whose bans have also now been overturned. Its ruling has also lead to another regional court scrapping similar bans in Nevada and Idaho.

Given the regional courts' jurisdiction, it is pretty certain that bans in states such as Montana, Arizona and Wyoming will also fall, whether by a further court ruling, or by the States themselves deciding it would be pointless to try and defend them.

The main issue now is what impact the USSC's ruling with have on other regional courts that aren't directly bound by their decision.  States whose bans are currently being challenged in these other courts include Michigan and Texas, both of which were overturned in separate regional courts, but those rulings are stayed pending an appeal.

Given the USSC's rejection of an appeal request, those courts - and the States - have two choices:

1. Take a hint that the USSC is no longer interested in letting States stop gay couples from getting hitched.  This would also impact the other States which the regional courts cover, such as Louisiana (Texas) or Tennessee (Michigan); or
2. Come up with some sort of reasoning to try and justify the ban.  Given that it would conflict with the other regional rulings, this would almost certainly be appealed to the USSC, and would be heard.  As the USSC has effectively said it is happy for the bans to be scrapped - if it was unhappy it would have allowed at least one State to be heard - it is likely that it would rule against the States.  This would automatically have the same impact of Loving v Virginia (which scrapped all US anti-miscegenation laws), and, depending upon how such a ruling would be phrased, may also lead to further laws against gay people generally being kicked-out, on anti-discrimination grounds.

The States could also decide to simply concede its case.  This would not have any direct impact on other States whose bans are still in effect, but would probably give them a massive hint.

It'll be interesting to see what will happen.  I think that the courts will follow the USSC, instead of dragging out the process any longer.

PS. Forgot to say: I've found Utah's position all along to be hilarious - it's a State run by Mormons, but they want the courts to rule that "Marriage is 'One man, one woman'". Given their history, it shows a complete lack of self-awareness, or simply bad faith and dishonesty...

Update: Alaska's ban has gone too. Tweet

Devolution in your Head

You've probably have heard that Scotland has decided to keep under the heel of the Sassenachs.

A few weeks before the vote one YouGov poll showed a majority for a "Yes to independence" vote.  This was one of only two polls that showed such a result.

This led to panic measures in the government. One of which was to make a "vow" that if Scotland was to vote "No" the Scottish Parliament would get a lot more power.

Unexpectedly, the result has led to calls for other changes in how laws are made, mainly over the minor impact that Scottish MPs have over laws in England (the votes from MPs in Wales and Norn Iron are apparently irrelevant...).

Some people - mainly Tories from the south and/or UKIP-types - are saying that we should now have "English Vote for English Laws"* (the acronym is, appropriately enough, EVEL), and that it should simply be based upon the number of MPs in Westminster from England. Coincidently enough, this would lead to a Tory majority, at least until next Spring.

Labour have said they'll hold a "constitutional convention" in which ideas can be submitted.

The Tories aren't suggesting that there should be a separate election nor that it should be based on anything remotely like a voting system that actually reflects the share of the vote. Again, and I'm sure that this is a complete coincidence, this would lead to a Tory majority until at least next Spring.

Given the importance and clear long-lasting effect that such a change would have on England, I think Labour's idea of a thought out way forward is much better than the Tories knee-jerk one.

Aside from the fact that it seems to be simply little more than an attempt by the Tories to entrench their power - and completely ignoring the fact that Parliament is effectively an "English Parliament": out of 650 MPs, England has 533 (82%), and so removing Scottish MPs wouldn't make a real difference - it doesn't actually deal with the main issue: that the government is too centralised and remote from the general public.

A much better idea would be to give powers similar to the Scottish Parliament - or even the Welsh Assembly - to English local government, either based on current boundaries or on a more regional basis. A good place to start would be the current boundaries that are used for EU elections: North-West/Yorkshire/London etc, albeit with splitting the "South-East" one into a "South Coast" and "Thames Valley" one. We have one in London, which works pretty well, but has little power.  There are other possible ways as this piece by George Potter shows.  City regions would also be an idea, as would a "quasi-federal UK".

Hopefully there will some sensible proposals that aren't simply used for short-term narrow political reasons in Westminster, and will benefit England as a whole.

* The Torygraph says that it would also include the Budget, which I think says a lot about the plans

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#Russia and #Ukraine: an allegory

There’s a married couple who had been together a long time.

The husband has never treated the wife very well, but she had always remained with him. Her friends had similar issues with their friends. Oddly enough, their husbands were friends of the wife's husband, and he had a reputation for beating them up for trying to leave his mates.

The husband had also attacked another friend, but she was able to fight him off with minor injuries; The husband also held hostage some other friends, before they escaped too.

The friends eventually manage to leave their husbands, without any real difficulty.

The wife doesn't leave her husband, because he says that he’s changed. He even goes to the extent of changing his name in order to show this. He is happy for the wife to keep their child.

Her friends meet new guys who treat them much better. They move in together and then marry.

The wife notices this and she meets a guy that is similar to her friends’ husbands. However, because she is still married they simply become friends.

The relationship gets worse and eventually the wife does leave. He’s not happy, but accepts it. However, they remain good friends.

The husband convinces her to come back, but he continues to abuse her, but less so.

The wife leaves again.

The wife later decides that she wants to be more than simply friends with her new friend. She likes the fact that they both have the same favourite colours. Her friend is wary at first because he is also friends and business partners with the husband.

The husband gets very angry and tries to force his ex-wife back into his arms. At first she does, but then her friends show her that she’s better off without him. She agrees.

In response, the ex-husband abducts their child, and encourages his mates to try and beat her up. She manages to fight them off.  Some other people have said that if she hadn't worn a blue dress with yellow stars yellow, she wouldn't have been attacked. Thankfully no-one really agrees with them.

In the meantime, the wife moves in with her friend, because they realise that they are a good match, and can offer each other a lot.

The new friends uses his business connections to cancel the ex-husband’s credit card and his overdraft, and get the bank manager to call in his loans.

The ex-husband then decides to beat up his ex-wife himself.

The new boyfriend now has to decide how else he can defend his girlfriend from the ex's brutal assault. Does he do more to cripple the husband's businesses or does he and his mates help the wife fight back?

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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