LWOP Sentence For Zapata Murder Upheld On Appeal

The Colorado Court of Appeals has upheld the convictions of a man charged with first-degree murder and other counts in what prosecutors said was the bias-motivated killing of a transgender Greeley woman.

Allen Andrade of Thornton was convicted in 2009 of deliberately beating 18-year-old Angie Zapata to death with a fire extinguisher in 2008 after learning she was biologically male. Defense attorneys argued Andrade had planned to meet Zapata for sex and snapped after learning she was born male.

From here.

Adrande was sentenced to life in prison without possibility of parole. His main appellate arguments, an argument that the jury should have been giving an instruction mitigating his criminal culpability because he was drunk, and seeking to suppress the murder weapon from evidence, were mundane. My post from the day that he was convicted on April 22, 2009, is found here.

Given the fact that Adrande had at least three prior felony convictions in his fourteen years of adult life, and was charged as a habitual offender and was taped making a telelphone call from jail admitting to the killing (albeit arguably with a lower level of intent), made a confession to police (albeit arguably with a lower level of intent), and was arrested in possession of Zapata's stolen car, 32 year old Adrande would have gone to prison for 40 years to life, and also faced the 24 year sentences on other charges that he received, even if the appellate court had reversed the first degree murder conviction. He was convicted of a hate crimes charge, but given his first degree murder and other convictions, any appellate issues he could have raised related to that conviction wouldn't have mattered because they would have constituted harmless error at their worst.

The August 11, 2011 opinion of the Colorado Court of Appeals in case 09CA1310 People v. Allen Ray Andrade, was unpublished. It appears that the case was argued on the basis of the briefs with no oral argument in the case available in the Colorado Court of Appeals online archive of oral arguments.

Andrade could make a discretionary appeal to the Colorado Supreme Court, could make a state level collateral attack on his conviction after that, and could bring a federal habeas corpus petition after that according to strict procedural limitations. But, given the lack of a death sentence, the lack of a right to counsel for collateral attacks, the lack of a credible claim that he was not the one who killed Zapata, his long criminal history, and the weakness of his arguments on direct appeal and the weight of the multiple damning pieces of evidence against him, none of those efforts are likely to be successful. There is a good chance that he won't even bother with further appeals, although he does have nothing else to do for the rest of his life. And, Adrande is extremely unlikely, given the fact that he was not sentenced to death, has a long and serious criminal record, and there is no doubt that he was guilty of some serious crimes this time around, that he will ever receive executive clemency.

American Criminal Justice: Cheap, Final, Harsh and Fast

In practice, it is astoundingly unlikely anywhere in the United States, in the state or the federal system, that someone who is convicted of a crime and not sentenced to death, whose conviction is affirmed on direct appeal, will not have that conviction later overturned or will have that sentence commuted.

I'll also restate a note that I made in a previous post:

The speed with which very serious criminal cases like this one progress is notable. The murder took place on July 15, 2008, and was discovered two days later. Thirteen days after the murder was discovered, there was an arrest. Pre-trial dismissal for lack of evidence was ruled out less than two months after the discovery of the body.

The trial was completed, the jury convicted, and the sentence imposed on April 22, 2009, nine months and one week after the murder was committed, and less than nine months after he was arrested. The direct appeal of right was resolved yesterday, fifteen months and twenty days after he was convicted, and thee years and twenty-seven days after the murder was committed. For all intents and purposes, the criminal justice system is now done with this case and he is the Colorado Department of Corrections' problem until he dies.

The sentence is rarely this long, but the general timeline in this case isn't unusual for a serious violent felony. Not every criminal case is so swift, but a very large share of all criminal convictions do result from arrests very shortly after the crime is committed and are based on convictions after trials where the evidence is overwhelming or guilty pleas, which move cases even faster. The constitutional right to a speedy trial rarely makes headlines, and isn't something most people are even aware of, but it has a pervasive effect on the pace of criminal proceedings in the United States.

Also, while the exact number will probably never be determined, the marginal cost of this criminal justice system of investigating and litigating this case to trial was almost nil, as most of the people involved, the police, DA who prosecuted the case, the judge and court clerks who handled the case, and the defense lawyers in the case, are on the public payroll on a salaried basis, and even if the personnel costs for everyone involved was prorated on an hourly basis, this case probably cost less to investigate and litigate through an appeal than a typical serious automobile accident that results in some injuries but not a death or a six figure contract dispute. All of the investigation and litigation costs combined for all parties were probably less than the costs associated with nine months of pre-conviction incarceration.

Of course, incarcerating this murderer for the rest of his life will cost the people of the State of Colorado something on the order of a million and a half dollars in today's funds after adjusting for inflation, and the State of Colorado probably spent hundreds of thousands of dollars incarcerating him before his most recent conviction on prior felonies and no doubt, for juvenile offenses as well.

If the death penalty had been sought and secured, it probably would have cost the State of Colorado more in additional litigation costs and death penalty implementation than it would save in incarceration costs from his premature death, or at least wouldn't have saved very much. It is also worth recalling that death sentences are overturned much more often than murder convictions. For example, the results in all the cases that produced post-conviction reversals of death sentences that were finally resolved between April 1973 and 2000, 54 cases were retried and produced a death sentence on retrial, 223 led to a murder conviction with a sentence other than the death penalty, and 22 cases ended with a determination that the defendant was not guilty of a capital crime. Thus, more than twelve out of thirteen death penalty sentence reversals ultimately kept a capital murder conviction in place, and some of the one in thirteen cases where a capital murder conviction was itself reserved still left some serious felony conviction in place rather than leading to a finding of outright innocence of any crime (the cases where there is a chance of innocence on all counts due to factors like mistaken identity or police frameups are the ones groups like the Innocence Project prioritize).

Deprived of any hope of release, little meaningful activity to carry out in prison, convicted of a sex related crime, and marked with a long track record of violent offenses, one can expect that Andrade will start his prison career at a very high security level and stay there, and that he will not be a model inmate.

One would like to think that people serving long prison sentences provide some benefit to society while they are there apart from staying out of the lives of law abiding citizens while they are incarcerated, although our system of criminal justice certainly doesn't make that a priority and is perfectly happen to simply waste and right off any contribution that incarcerated people could make for the most part.

For all the twists and turns of the criminal justice system that make headlines and feature in crime fiction, reality is that the vast majority of criminal prosecutions produce convictions for something, that a minority of cases go to trial and a minority of those cases that are appealed are reversed on direct appeal, that it is fairly unusual for even a criminal sentence to be reversed on appeal, and that executive clemency is almost non-existent. Also, the percentage of people who escape from incarceration in a state prison is infinitessimal, and is even smaller in the case of prisoners in the highest security environments who have committed serious violent crimes (a large share of all escapes are walk aways from community corrections facilities, work release programs or minimal security facilities housing the least serious offenders). And, convicting someone of escape once they are rearrested, given the availability of prison records, DNA evidence, fingerprints, photographs and so on, is little more than a formality.

By the time the police make an arrest and a prosecutor files charges the probable future is usually very clear, and the vast majority of the time that there is a conviction it sticks. And, it is done very cheaply.

Pretty much the only way to have a reasonable chance of escaping some punishment for a crime is to not get arrested in the first place, and of course, that usually is what happens.

Why point all of this, which is obvious to those familiar with the system except politicians, for the most part?

First, there has been a lot of criticism that the Warren revolution in constitutional criminal procedure has made it easy to escape punishment from the criminal justice system. The reality is that there isn't much merit to that assertion. People who are arrested for serious crimes are usually convicted of something and usually get long prison terms if they have criminal records and committed really serious crimes, indeed, longer terms than anywhere else in the world pretty much.

Second, there has been a strong conservative movement to cast doubt on the capacity of the criminal justice system to handle terrorism suspects. But, there is extremely little evidence to suggest that it is not an effective way to punish them and there is considerable evidence to show that the due process protections and fairness of the criminal justice system, relative to more draconian approaches proposed to deal with terrorism, is better at preventing incapacitation of one terrorist from causing future terrorist acts inspired by action taken against the first terrorist. The claimed need for deprivations of civil liberties is premised on the incapacity of the civilian criminal courts to secure convictions and impose long sentences for terrorist acts which is simply not supported by experience in these cases.

READ MORE - LWOP Sentence For Zapata Murder Upheld On Appeal

Overall new U.S. HIV cases stable

The most recent report from U.S. government health officials reports that 50,000 new HIV cases were diagnosed in the most recent year, stable compared to four years ago overall. About two-thirds were men who have had sex with men, about 9% were IV drug users, the rest were classified heterosexual cases, something fairly typical of prior years.

Cases were up for adult men who have had sex with men and are under thirty years old, including an increase of 48% for black men in that category compared to just four years ago, and since the overall numbers were down, presumably down in many other demographics compared to four years ago.

The media has reported the 48% increase for black men who have had sex with men and are under thirty years old as "gay men." But, I suspect that a significant share of those cases reflects men who were raped by other men, probably mostly in prison. Why? The numbers are much larger relative to the size of the population involved than in other demographics and following completely different trendlines. There is no particularly good reason to think that the black men are that much more likely to be gay than other men. While it wouldn't be surprising if the unsafe practices rate for gay black men engaged in consentual sex outside prison was higher in black men than for other men, the differences in rates of HIV infection and other serious STDs is so much higher in young black men than in demographics with much lower incarceration rates. There may be racial divides in the 2010s gay social scene, just as there are in other parts of American life, but the numerical gap is what you would expect if Jim Crow were still in full force in America; while my perhaps naiive take is that young gay men are no more segregated by race, and perhaps a bit less so, than other American demographics. Also, the numbers seem to suggest that significantly more black women receive HIV from black men who have had sex with men than in other demographics, which would suggest, at a minimum a larger share of men who have had sex with men who also have sex with women in this demographic than other demographics. If would take only something on the order of 0.5%-2% of the black male prison population to have new HIV infections each year to account for the discrepency, which would not be out of line with these cases making up a minority share of all estimated for prison rapes of black men each year. An indepth analysis post from 2005 on the subject at this blog is here and there have been several posts in between.

However, my conclusions are based only on numbers and I haven't seen an in depth non-statistical analysis, despite its importance from a public health perspective. For example, focusing public information campaigns on bars frequented by young middle class African American gay men is not going to solve the problem if most of the new cases are coming of young African American men who have had sex with men are coming from prison rapes (or, for that matter consentual sex in a prison environment by gay men who don't have access to basics like condoms and have a limited choice of partners).

The good news, however, is that people who are infected with HIV are living about twice as long and at greater levels of health as they did when the outbreak started, roughly twenty years instead of ten, in round numbers, mostly due to new drugs, but perhaps to some small extent also because most new infectious diseases grow less virulent in subsequent epidemic waves because the most virulent strains tend to die out with the people who are infected while having caused fewer new cases in the meantime.

READ MORE - Overall new U.S. HIV cases stable

Civil Unions In Rhode Island And The State Of Gay Marriage

Rhode Island's state legislature had passed a civil unions bill that its Governor is sure to sign.

Rhode Island joins four other states — Hawaii, Illinois, New Jersey and Delaware — that have legalized civil unions, according to the National Conference of State Legislatures. Several other states recognize domestic partnerships, while six have legalized same-sex marriage, as has the District of Columbia[.]

In terms of terminology, civil unions are marriage in all but name, and domestic partnerships are "marriage minus." But, it isn't clear yet whether all three will be the same in the eyes of the federal government, only marriage will count as marriage, or both marriage and civil unions will count as marriage in the eyes of the federal government. In theory, the federal government could even treat civil unions and/or domestic partnerships as marriages for some federal law purposes, but not others.

Still, we have reached a tipping point on gay rights in the United States.

The only other New England state without either gay marriage or civil unions is Maine (a year and a half ago Maine voters narrowly overturned the state's legislatively adopted marriage equality law, 53-47), but it apparently still has some form of domestic partnership law. New York, New Hampshire, Vermont, Massachusetts, Connecticut and District of Columbia have gay marriage. Pennsylvania and Maryland are the holdouts in the Northeast that currently lack gay marriage, civil unions or legally recognized domestic partnerships, and none of the states in the region that lack gay marriage or civil unions appears to have constitutional amendments prohibiting state legislatures from allowing gay marriage.

Rhode Island's move solidifies the Northeast block's stance that same sex couples have the same legal rights under state law as married couples, putting pressure on Maine, Pennsylvania, and Maryland, which have considered but not yet adopted such legislation (with the bills failing by narrow margins), to follow the examples set by their regional neighbors with whom they have strong ties and a history of interstate cooperation on other issues like automotive emissions and bottle recycling.

In the last tally that I saw, there were civil unions in Hawaii and domestic partnership legislation on the book in Washington State, Oregon, California and Nevada, forming a regional block of greater Pacific area states with gay friendly legislation.

California had had judicially established gay marriage until voters passed Proposition 8, but a trial court has ruled that Proposition 8 was unconstitutional, a challenge claiming that the trial court judge who ruled on the Proposition 8 case should have recused himself has been rebuffed, and the 9th Circuit Court of Appeals has essentially held that the only person who purported to appeal the trial court ruling lacked standing to appeal unless the California Supreme Court states in a legal question certified to it that the proponents of a ballot initiative always have standing to defendant constitutional challenges to that ballot initiative (which it seems unlikely to do when it rules on this issue which has been briefed and it is considering).

To make a long story short, it isn't at all beyond the realm of possibility that California will have true gay marriage (in addition to New York, which took this step earlier this year) by year end. Resisting a trend that already includes two of the nation's largest states and two whole regions of the country is not easy for its opponents, particularly without national government support with the Obama administration has denied them.

In the rest of the country, Illinois (which has civil unions) and Iowa (which has gay marriage) are an island of tolerance in an otherwise legally hostile sea, in the case of Iowa, as a result of a judicial decision that caused several Iowa Supreme Court judges who supported the ruling to lose retention elections.

The repeal date for the military's "Don't Ask, Don't Tell policy" a half-measure that kept a ban on gays in the military in force, is now set in stone by legislation.

Each legislative and court victory, shifts overall public opinion in favor of the change, because there is a natural tendency to accept the legal status quo as legitimate.

For activists in Rhode Island, winning "civil union" status rather than "marriage" status is more than a symbolic defeat, because the provision of the Defense of Marriage Act (DOMA) that pertains to federal law recognition of state law marriages is crumbling. Court rulings holding that this part of DOMA is unconstitutional are staking up; the administration has changed its litigation strategy from one of vigorous defense of the constitutionality of this part of DOMA to half-hearted enforcement of the law until there is an authoritative judicial decision to the contrary despite publicly expressed doubt concerning its constitutionality, and federal administrative reluctance to enforce penalties that deportation of a same sex spouse. There is a strong likelihood, although it is not completely certain, that the federal law part of DOMA will be judicially ruled to be void and no longer applied by the federal government before the 2012 election.

But, even if the federal part of DOMA is held unconstitutional, it isn't obvious that a couple with a civil union or state recognized domestic partnership would be entitled to the same treatment under federal law as a married couple.

Even assuming that the federal government part of DOMA meets its demise for want to support from the Obama Administration and as a result of judicial rulings to that effect, the provision of DOMA the provides that states need not give full faith and credit to a gay marriage in a sister state is not yet the subject of a serious legal challenge, and a great many states have no form of gay marriage, civil union, or domestic partnership of their own.

Interstate recognition of gay marriages, civil unions and domestic partnerships is ill defined at the moment, even among states that have them. Wyoming is a recent example of a state that does not have its own gay marriage law, but was willing to take jurisdiction over a divorce for a same sex couple married elsewhere. The court found that a ban on marrying same sex couples did not imply a ban on divorcing them.

Many constitutionally prohibit gay marriage, and almost all that don't do so in their constitutions, prohibit it by statute. But, state constitutions, unlike the federal constitution, tend to be quite easy to amend as public opinion shifts.

Isolated rulings, however, particularly in the adoption and child custody area in states like Florida, have held that discrimination against same sex couples even if they are not married, lacks a rational basis and is unconstitutional under the 14th Amendment equal protection clause.

Indeed, the law related to children, in general, and of parental rights and responsibilities of married couples vis-a-vis non-married couples has been so completely harmonized in the context of opposite sex unmarried couples, that paternal marriage status is almost irrelevant to these issues now even in states that have strongly resisted recognition of gay rights. There are some sometimes subtle differences involved in establishing paternity, but otherwise, the formal barriers to same sex couples in relation to children have been retreating for some time.

The U.S. Supreme Court's Lawrence case ended criminal prosecutions for consensual, non-commercial sexual relationship between adults in same sex couples, and this also probably provides a comparable privilege for sexual relationships of this type between all unmarried adults who are not in a position of trust with regard to each other or incestuous. Very few states continue to have civil or criminal sanctions for adultery. Meanwhile, martial exclusions for non-statutory rape have increasingly been stripped from the law books.

From a legal perspective, marriage no longer has almost any relevance to the legal regulation of parenting or sexual activity with which it was traditionally associated. At this point, legal marriage is almost exclusively an economic relationship pertinent to default private law rules concerning property, and personal care taking, mandatory private law rules concerning financial support, and is a device that helps to structure economic obligations for taxes and economic entitlements to government benefits.

For many purposes, private documents, such as domestic partnership agreements, inheritance and beneficiary designations in wills and other documents, medical decision making, and more, can establish arrangements between couples whose state law legal incidents are equivalent to those provided by marriage, and in states like Colorado that are at first glance hostile to gay marriage, these legal arrangements are increasingly easier to put in place and adopting non-discrimination laws that include sexual orientation. Many couples never put the full package in place, but many, although not all, of the practical state law legal disabilities associated with not being married can be overcome.

Colorado was just a couple of votes short of a civil unions bill in the 2011 legislative session, it has a U.S. Congressman and a number of prominent state legislators who are openly gay or lesbian, it has a U.S. Senator, Michael Bennet, who is co-sponsoring DOMA repeal, and its Governor is a supporter of gay rights who made a high profile appearance at this year's Denver Pridefest. Colorado's designated beneficiary act is just a notch short of a full domestic partnership law, Denver has a process by which couples can register as domestic partners, Colorado has included sexual orientation in almost all of its non-discrimination laws, and Colorado has made other same sex couple friendly adjustments to other aspects of its private law. If Democrats regain control of the state house in 2012, and possibly even if public opinion shifts even a small number of state legislative votes in the 2012 legislative session, Colorado will probably have civil unions by 2012 or 2013.

The solid regional blocks of legal recognition for same sex couples that are in place now and growing will make denial of full faith and credit look increasingly bigoted and will make this denial increasingly administratively cumbersome as a practical manner.

The Denver Post today cited statistics from the Census Bureau identifying more than 16,000 people who are gay or lesbian partners living together in 2010 up from a little more than 10,000 in 2000. About a quarter are in Denver, and thousands more are in the metropolitan area. It is increasingly easy for same sex couples to have a marriage or civil union somewhere, and to the extent that out of state couples are given the opportunity to marry in states that do permit same sex marriages, this will presumably provide full recognition at the federal level nationwide if the federal government portion of DOMA is held unconstitutional, even if the states where the couples reside do not themselves recognize their marriages as valid.

For example, suppose that the federal government portion of DOMA is invalidated and two men from Denver get married in New York City, and then return to Denver. They file their federal tax returns as a married couple filing jointly. Colorado law provides that state taxable income is a fixed percentage of federal taxable income. But, this state tax rule is hard to apply if Colorado does not permit couples that are treated as married filing jointly for federal tax purposes to be taxed with the same filing status at the state level.

DOMA does not appear to allow one state to invalidate an adoption of a child by a same sex couple granted in another state. Community property rights that were accrued by members of same sex couples in a state that gives their relationship formal legal status equivalent to marriage probably persist, even if the couples moves to other non-community property states, and give rise, at least, to a partition right, if not a right to a true divorce proceeding. The more that this issues become practical ones immersed in people's everyday lives, rather than exceptional issues of principle, the less controversial they will become.

READ MORE - Civil Unions In Rhode Island And The State Of Gay Marriage

White Minority Culture and Xenophobia

One fruitful way to look at the politics of immigration, is from the perspective of a minority (or at least socio-economically subordinate), ethnically white culture in the United States that is trying to avoid dilution. This culture, which I call "Country-Western", is one that even people from this culture who make it into the ranks of the American economic elite often work hard to suppress.

Why do the people of immigrant filled New York City or Los Angeles not fear immigration, while excluding immigrants is highly salient in Alabama, where immigrant populations are scarce?

Perhaps, the answer is rooted in the inferrence that immigrants will assimilate into the dominant culture of the United States. If you are a native born member of the white middle class in New York City or Los Angeles, you can be relatively confident that immigrants are eager to assimilate into your culture. If you are a native born member of the white middle class in Alabama, you can be relatively confident that immigrants are not particularly eager to assimilate into your culture.

The drama of gay rights can been seen through the same prism. Because, "country-western" culture in the United States does not have much of a niche in which one can come out as gay, and because churches which are welcoming to people who are gay tend to have ties to the dominant rather than the "country-western" culture, acceptance of gay rights fuels a trickle of native born members of this white minority culture out of it and into the dominant American culture. It is no coincidence that states that allow gay marriage and/or civil unions are overwhelmingly Yankee or urban, and that states that take the half-step of domestic partnerships are overwhelming the Pacific States which have only a weak "country-western" cultural component, while those states where this cultural component is large tend to have state constitutional amendments prohibiting gay marriage.

This notion may even explain much of the anti-intellectualism that is rife in conservative white protestant political circles.

Thus, fear of immigration and gay rights and science may have much the same motive as the fear that Jewish parents have of intermarriage. The driving motivator may be a loss of cultural market share if immigration and gay rights are embraced. This impact, unlike the questionable economic impacts sometimes claimed in polite political debate, may help explain the persistance of these issues as high saliance issues despite an absence of tangible economic or liberty impact on people. The fear is dilution and marginalization of a white ethnic culture that is unable to absorb either.

A trickier issues is parsing what is going on in the Midwest, which is neither entirely Yankee or entirely Country-Western. Outside the highly urbanized Illinois and its neighbor Iowa, they have taken the Country-Western line on gay rights, but until recently haven't been particularly hostile to immigration. But, these states also seem to be swing states that are potentially on the brink of changing sides in the two party battle for the United States as they are depopulated or stagnant in population and the people with the strongest ties to the dominant American culture leave, while those with the strongest ties to Country-Western culture remain.

In contrast, as urban areas in the American Mountain West grow, the influence of rural areas and rural support oriented cities is declining and their political fates are increasingly aligning themselves with the compositions of the waves of migrants into their cities.

READ MORE - White Minority Culture and Xenophobia

Estate and Tax Planning For Same Sex Couples In 2011

SSRN has a new paper entitled "Planning For Same Sex Couples in 2011" that provides a nice overview of the estate planning and tax issues involved, including a state by state survey that covers recent legislative changes in this area.

READ MORE - Estate and Tax Planning For Same Sex Couples In 2011

Does Law Have Insufficient Visual Drama?

Once upon a time, where you wanted to sell real estate, you handed some soil or twig for the property to the buyer in what was called livery of seizen. Couples kiss, wear traditional costumes, and exchange rings when they marry in front of a crowd. One of the traditional ways to revoke a will (recently litigated in Colorado) is to destroy or deface the physical document (which leads to a number of peculiarities of probate law). Traditionally, wills were read aloud after a death, although that rarely happens these days. Even though it no longer legally matters, it is traditional to seal a contract with a handshake. When sports teams finish a game, win or lose, the players each slap hands saying "good game", emotionally putting an end to disputes over the details that led to the final result. Churches acknowledge affiliations to their faith with dramatic baptisms in the Christian church and a vividly memorable circumcision ceremony for infant Jewish and (at least in traditional societies) adolescent Muslim boys. Basic trainees in the military, men entering monastic orders, and prison inmates have their hair shorn, and are stripped of almost all of their personal possessions.

The current story arc in the webcomic Red String's (set in Japan but written by Gina Biggs of Georgia) features Hanae Niijima, a lesbian whose mother will not accept the fact that she has come out or acknowledge Hanae's true love Fuuko Akimoto. The set up to the scene is in this dialog:

Hanae: Why can't you be happy for me? This is who I am. This is ME.

Mother: It's NOT you. You were my sweet little girl who liked flowers and unicorns; who loved to be dressed up in frilly clothes and have me curl your hair. You were never a tomboy!

Hanae: That's STILL me. You think you have to be boyish to like a girl? That's . . .you can't believe that.

Hanae decides the overcome the conceptual block that seems to be getting in the way of her mother by making a visual statement:

Hanae: Fine. [Grabbing scissors with one hand and her long flowing curly hair with the other.]

Mother: What are you doing?!

Hanae: If its frills and curls keeping you from accepting this then I'll get rid of them. Will that work?

Hanae then hands a long pony tail of crudely cut off hair into the hands of her shocked mother who sits, holding it, staring off into space.

Obviously, I'm not recommending that this become a ritualized part of the process of coming out that is mandated in any way. But, powerful visual dramas can often convey meanings about abstract concepts, particularly emotionally charged ones, that some people have a hard time grasping from mere words.  Hanae's mother might be able to understand from the hair in her lap what she couldn't when her daughter merely spoke to her.

For example, one of the classic problems that one sees in modern family law litigation is that one or both of the people who once were married, or at least a loving couple, can't let go of that relationship. The service of the divorce petition, the signing of the papers, the dryly worded court order ending a marriage and providing for the sharing of the children and property of the marriage, and often a restraining order as well, don't communicate to the former member of that relationship with adequate emotional force that the relationship is really, once and for all, over.  Some people are simply beyond reaching by any means of communications, but a large number of people who go through family law proceedings simply don't really understand at an emotional and subconscious level what has happened until much later, even if they can parrot the court's ruling.

Perhaps if that message could be conveyed with more visual drama in some universally accepted new ritual, more people who move on, and there would be, as a result, less senseless fighting driven by old emotions instead of new practicalities. The demise of fault based divorce has made the process much more antiseptic for all involved in the process, but have we overdone it to the point of failing to really acknowledge in an emotionally valid way that not just the legal construct of the marriage, but also the emotional reality of the relationship that it approximates, has ended. Shouldn't the symbolism and ritual that ends of marriage need to be even more powerful and less subtle than the symbolism and ritual that starts one?

Adoptions tend to be even more understated, for fear of spooking the relinquishing parents, and not surprisingly, the main complaint that gets litigated in adoptions is that of relinquishing parents who claim they were properly appraised of the gravity of their actions.

A classic problem in consumer litigation of all kinds is the not infrequent failure of a debtor or consumer, already overwhelmed by paper and having trouble determining what is most important, to realize that a summons and complaint in a lawsuit is a once and for all speak now or forever hold your peace notice that has profound legal consequences if ignored.  This lack of understanding is one of the driver's of the almost ubiquitous paranoia about ulterior motives and about being cheated by one's betters found among unsophisticated people who have frequently been on the receiving side of litigation.

Perhaps we would do well to imitate the litigation practices of the protocol agents of the advanced civilization in the science fiction book "Jaran" by Kate Elliott, where legal disputes are announced by delivery of a physical baton in person by a courier, and one responds to the allegations at a mandatory in person appearance at the designated place and time, as inefficient as that may be, rather than simply enforcing the duty to appear by entering a default judgment against a party who does not appear (one that is often forgotten until property is seized pursuant to the judgment).

I have no empirically evidence to support the theory that more dramatic visual drama in the legal system would make any difference at all. The modern trend has been to strip away formalities, arcane language, pompous court room surroundings, wax seals, fancy ribbons and the like from legal matters. Instead, modern legal proceedings and legal facilities, favor plain English, the bare minimum of in person appearances, contemporary but understated and inoffensive surroundings suited for efficient, processing of business matters, dispenses with wigs and obtuse morning suits, and use very simple seals and acknowledgements - relying on the ability to confirm orders with third party repositories rather than lack of counterfeitability for reliability. Many documents that used to have to be notarized are now simply signed under penalty of perjury with no third party verification of identity or intent.

For lots of purposes this trend may be a good one. It demystifies the legal system and makes it more accessible to pro se parties. Much of what courts do is as much administrative business as it is emotionally meaningful decision making. For the most part, people prefer an inexpensive, quick, form driven informal probate process to the traditional succession proceedings of courts of equity will all their pomp and circumstance. And, some parts of the court process, like the delivery of jury verdicts finding someone guilty or not guilty, have managed to hold onto some of the drama that gives them emotional power. But, maybe some of the time, particularly in civil matters that don't involve business people and may have consequences for people who do not have the same cultural heritage as the lawyers and judges who are running the system, a higher touch, lower tech approach is in order and would make courts more effective. It is certainly a hunch that would be worth exploring with more systematic research.

READ MORE - Does Law Have Insufficient Visual Drama?

Uganda Lets Anti-Gay Bill Die

Uganda is a country in East Africa at between mass violence torn Rwanda, Burundi, Congo, and Sudan that has itself experienced mass political violence (the best known being massacres by Ida Admin in the 1970s) in its recent history. Its purchased ties to Gaddafi have made it a pivotal in efforts to find a resolution of the situation in Libya, and it has plaed in active and mixed role in addressing regional conflicts.

Uganda is also remarkable for being a nation in Africa where the dominant political forces, sometimes violent, are the local brands of evangelical Christianity. This political wave has manifested itself in major social issue overhauls of its statutes, after long periods of legislative stagnation under less than democratic rule.

One recent wave of legislative change that received widespread praise was one of the most dramatic legislative reforms to establish women's equality and give women's rights that force of law in all of history in a given country as the direction of its constitutional court on April 4, 2007.

Another, which secured widespread international condemnation and massive popular support locally, was a virtulently anti-gay bill that has been considered by its parliament for the last eighteen months:

The Anti-Homosexuality Bill sought to impose the death penalty for a number of reasons, including being a “serial offender” of the “offense of homosexuality.” The bill also called for Ugandans to alert the government to known cases of homosexual behavior within 24 hours.

Religious leaders said they had obtained more than two million signatures in support of the measure[.] . . .

Since the bill was introduced, gay-rights advocates have gone into hiding in Uganda; a vitriolic newspaper published the names and addresses of gay men and lesbians and told readers to kill them; and one prominent activist for gay rights, David Kato, was bludgeoned to death with a hammer in his neighborhood outside Kampala.

The bill expired with Uganda's current legislative session on Friday, in a major victory for gay rights defenders and the international community. The far away legislative debate has made its way to American shores because missions of prominent American evangelical churches have been financial backers of the churches and political organizations that have been pivotal in backing the anti-gay legislation in Uganda. Pressure from gay rights activists on these churches, which often aren't known for their anti-gay stances in their U.S. activities, may be one important behind the scenes reason that the legislation has faltered in Uganda.

READ MORE - Uganda Lets Anti-Gay Bill Die

"Your Type" In Marriage Isn't Genetic

A new twin study finds that while people tend to choose spouses who are similar to themselves, that mate choice doesn't seem to have any other hereditary component. Twins choose spouses who are no more or less similar to them than non-twins.

The myth that boys tend to choose spouses who are similar to their mothers, while girls tend to choose spouses who are similar to their fathers, also doesn't stand up to empirical scrutiny. People tend to choose spouses who are more similar to them than their opposite sex parent.

The study (from here citing Brendan P. Zietsch, Karin J. H. Verweij, Andrew C. Heath, Nicholas G. Martin. "Variation in Human Mate Choice: Simultaneously Investigating Heritability, Parental Influence, Sexual Imprinting, and Assortative Mating." The American Naturalist, 2011; 177 (5): 605 DOI: 10.1086/659629) involved more than 20,000 subjects and examined traits including height, body mass index, education, income, personality, social attitudes and religiosity.

The only trend discovered, other than a strong tendency of people who choose mates who are like themselves in the measured traits at the time they meet (convergence towards each other in traits over time was ruled out), was a tendency for a woman's family background to influence her choices in terms of age and income.

The tendency to choose someone similar to yourself as a spouse is strongest for age, social attitudes and religiosity, moderate for IQ, education and physical attractiveness, and less strong, but still statistically significant, for height, weight and personality traits.

Pheromone transmitted information about a potential mates MHC complex of genes (related to immunity) influences someone's attractiveness but has essentially no actual impact on who people actually end up in a long term relationship with in the end. The degree of MHC similarity or dissimilarity in married couples is no different that would be expected from random chance.

People also tend to deceive themselves about what kind of person they want in marriage. There is little connection between self-reported preferences in a potential mate and the person that people actually chose to marry.

The study did not attempt to measure which marriages worked and which did not, only what kind of people individuals actually choose to marry in the first place. Thus, the study doesn't rule out the possibility that the best person for someone to marry has traits different than the person an individual is most likely to marry.

In a somewhat related matter, sexual orientation is almost completely unrelated to shared family environment or prevailing societal attitudes. A large (n=7600) twin study in Sweden found that sexual orientation was explained 0%-17% by shared environment (including familial and societal attitudes), 18%-39% by genetics, and 61%-66% by unique environment, "for example, circumstances during pregnancy and childbirth, physical and psychological trauma (e.g., accidents, violence, and disease), peer groups, and sexual experiences." The study was Niklas Långström, Qazi Rahman, Eva Carlström, Paul Lichtenstein. "Genetic and Environmental Effects on Same-sex Sexual Behaviour: A Population Study of Twins in Sweden." Archives of Sexual Behaviour, 7 June 2008 DOI: 10.1007/s10508-008-9386-1. At least in a large share of cases, there is a fair amount of evidence that sexual orientation tends to be congential and is related to some extent to genes and to some extent to hormone exposure in utero and possibly to other epigenetic or in utero enviromental factors.

READ MORE - "Your Type" In Marriage Isn't Genetic

Policy Beliefs Can Change

When you get immersed in the toil of electoral politics, it is easy to get into the rut of assuming that politics is all about getting people who agree with you to the polls at a higher rate that the people who don't agree with you, and that people's opinions, to the extent that they are based on more than trivial amounts of information, almost never change.

But, in the longer run, that isn't true. While an individual, and even a whole geographic community's place on the political spectrum is very stable over time, in the case of communities, even over more than a century, the location of specific policy stances on that political spectrum can shift dramatically in a couple of a decades or less.

A poll from CNN this week is the latest to show a majority of Americans in favor of same-sex marriage, with 51 percent saying that marriages between gay and lesbian couples “should be recognized by the law as valid” and 47 percent opposed.

This is the fourth credible poll in the past eight months to show an outright majority of Americans in favor of gay marriage. . . Prior to last year, there had been just one survey — a Washington Post poll conducted in April 2009 — to show support for gay marriage as the plurality position, and none had shown it with a majority. . . . opponents of gay marriage almost certainly no longer constitute a majority; just one of the last nine polls has shown opposition to gay marriage above 50 percent.

From here.

In New York State, likely voters polled earlier this year supported gay marriage by a 56-37 margin. In New York City suburbs support for legalizing gay marriage is 61-33. Roman Catholics are more likely to support gay marriage than members of the population at large, notwithstanding church doctrine to the contrary.

If you told me when I started high school in small town Ohio in the mid-1980s that a majority of Americans would support gay marriage two and a half decades later, I would have thought that you were crazy. When I graduated from high school, only about 11% of those polled thought gay marriage should be legal, while about 72% oppose it. Frankly, I'm surprised that support for gay marriage back then was that high, I would have guessed that it was in the single digits, and maybe in small town Ohio it was. It is also possibly that the single pre-1994 poll's number was high and was made public at all only because it was a statistical outlier on the high end.

The AIDS epidemic had started to make most people aware that there were actually people who had intimate relationships with members of the same sex voluntarily, but even the notion that someone could actually identify as "gay" or "lesbian" in real life, as opposed to merely as an insulting and inaccurate description of someone, wasn't real clear to me at the time. I had never met anyone who had come out. I hadn't even seen or heard of anyone who had come out on TV, in a movie, on the radio, or in anything that I'd read in print. There were no organizations for gays, lesbians, transgender individuals that I was aware of in my town, and the only one that I was aware of nationally was ACT-UP. I was aware of a couple of same sex adult couples who lived together as a household, one of which involved an extended family member, but it had never occurred to me that a household like that would be anything other than platonic, and nobody in those households ever said a thing that suggested that more legal rights were necessary for them.

Since then, the trendline has been more or less steady and shows no sign of reversing. Nate Silver notes in the linked article that "If support for gay marriage were to continue accelerating as fast as it has in the past two years, supporters would outnumber opponents roughly 56-40 in the general population by November 2012." Even if the growth in support reverts to the overall trend line, there will be a pretty safe majority that favors legalizing gay marriage by then, and some states will be ahead of that trend while others will be behind it.

Popular understanding of sexual orientation and gender identification has expanded dramatically in a quarter of a century. By the time I finished high school, I learned that there were at least a few people in my community who self-identified as gay or lesbian (I would not meet anyone who had a transgender identity until after I finished college). Oberlin, where I went to college, was a mecca for gay and lesbian students, who were often active in campus politics, were deeply involved in running one of the major social events of the year on campus (the drag ball), and made it a point to be out of the closet in daily life in class and around campus. A large share of our student body came from New York City and some students personally knew people who had participated in the Stonewall Riots.

But, while college changed my views, this took much longer for the rest of the nation. More than one book has recounted what happened in the years that followed, but my point is not to illustrate how this happened. My point is to note that it did.

Even a decade ago, even among liberal minded people and many people in the gay and lesbian community, some form of civil unions seemed possible and desirable, but gay marriage seemed like a remote possibility that might never happen anywhere in anything but the distant future (where author Kate Elliott, who I whose science fiction Jaran novels I was reading in the late 1990s had put a society that had gay marriage). It was a little hard to determine at that point what gay marriage would even mean at a practical level, because not a lot of attention had been given to the question by people in a position to know the answers.

Now, there are thousands of same sex legally marriage couples in the United States and more in Europe. Colorado doesn't legally recognize same sex marriage and doesn't even have a civil unions law (one was narrowly defeated in this year's session of the Colorado General Assembly). But, it does have a lot of same sex couples who view each other as spouses, who hold themselves out to the public as spouses, who live as a household and who raise children together. They are parents of children who go to school with my children. They are teachers. They are nurses. Their families are my neighbors. Those couples are my clients in large numbers.

It has become obvious to a large share of the population through countless examples that someone can be gay or lesbian as a matter of personal identity, and that a person's sexual orientation is a stable part of who someone is as a person that someone is generally aware of to some extent, even if they may not fully understand their feelings in some social contexts or may be confused at times, for most, if not all, of their lives. (And, who doesn't, at some point in life, find their potential romantic relationships to be confusing?)

It has become clear as well that gay marriage doesn't have negative externalities. It doesn't weaken the institution of marriage for opposite sex couples. It helps many children and harms none. It imparts dignity without taking it away from anyone.

There are still plenty of people in the world who still insist that same sex loves are sinful based on epistles written by John the Gospel writer a couple of thousand years ago, and stories and laws written by Jewish priests centuries before then. But, those scripturally motivated views don't last long in the face of encounters with real life friends, neighbors and colleagues. They don't have much credibility with young people, even those who are evangelical Christians who have grown up in a world that has allowed them to see gays and lesbians and transgender individuals living ordinary (and extraordinary) lives like anyone else.

Decisions from courts and politicians, like the recent Congressional repeal of the Don't Ask, Don't Tell policy in the military and the President's decision not to defend in court the part of the Defense of Marriage Act applicable to the federal government have provided the leadership that has changed the views of the majority, and willingness to hire a gay man as the White House social secretary. Once you abandon the sin theory of sexual orientation the rest flows pretty naturally, and the leadership that our nation's leaders have shown has pretty well discredited that understanding of sexual orientation.

The sin theory of sexual orientation is rapidly going the way of the equally scripturally supported and equally empirically inaccurate demon possession theory of mental illness. Despite the fact that the words in the Bible haven't changed, very few people walking the streets believe in an internalized way that mental illness is caused by demon possession, and likewise, the Biblically based defenses for the institutions of slavery are also now heart felt for only a tiny minority of American Christians.

Lots of people believe that faith healing (which the Gospels devote a great deal of time to) is possible, or at least once was possible, but very few people resort to a clergyman laying on hands as their sole means or even primary means for dealing with poor physical health.

The Pope's official position, reduced to writing ever since 1968 in "Humanae Vitae," is that using contraceptives is a sin. But:

A survey just one year later . . . found that 44% of Catholic women (who were regular churchgoers) were currently using artificial contraception. In 1974, 83% of Catholics said they disagreed with the Pope’s stance on birth control. By 1999, nearly 80 percent of Catholics believed that a person could be a good Catholic without obeying the church hierarchy’s teaching on birth control. A 2005 nationwide poll by Harris Interactive showed that 90% of Catholics supported the use of birth control. The Center of Disease Control and Prevention 2002 National Survey of Family Growth revealed that 97% of American Catholic women over age 18 have used a banned form of contraception, which is the same percentage as the general population.

The sea change in public opinion on gay rights isn't the only recent example.

While he was living, Martin Luther King, Jr., our nation's pre-eminent hero was the civil rights movement, was wary of pressing to strike down miscegenation laws and emphasized civil rights in the public sphere of work and commerce instead. Yet, in the wake of Loving v. Virginia, even prominent segregationist politicians like Strom Thurmond eventually came around to the view (and I genuinely believe that at least that far it was sincere) that miscegenation laws were wrong and that there was nothing wrong with interracial marriage. Large percentages of white, usual Republican primary voters in Mississippi still haven't come around, and we are not a nation of color blind people. But, Jim Crow era laws to enforce segregation and discriminate on the basis of race have been utterly morally discredited for the vast majority of Americans today.

We haven't reached a comfortable answer that tells us how to balance work and family in a world where both men and women are part of almost all parts of the workforce. But, almost nobody wants to return to the status quo that was in place when I was born when the percentage of women in law school student bodies was in the single digits, and there were only a handful of jobs that were open to women, especially to married women. Likewise, almost nobody advocates a return to a legal regime in which women cannot own property, bring lawsuits or enter into contracts in their own name, as was the case when the Founders wrote the United States Constitution.

Similarly, nobody is advocating that the franchise be limited to white male property owners over the age of twenty-one as it was when the Founders wrote the United States constitution. Indeed, while non-whites can no longer constitutionally be denied the right to vote based on race, women can no longer constitutionally be denied the right to vote based on gender, and eighteen to twenty year olds can no longer constitutionally be denied the right to vote based on age, laws restricting the franchise to property owners would quite possibly not violate the federal constitution, although such laws would be politically impossible to pass at the moment.

Abortion remains controversial, but popular opinion today would never support the laws struck down by the U.S. Supreme Court in Griswold v. Connecticut in 1965 that made it illegal to use "any drug, medicinal article or instrument for the purpose of preventing conception."

Support for legalizing marijuana is at about the same point that support for legalizing gay marriage was two years ago. The year that I graduated from high school, about 74% opposed that and 24% supported it. Now, about 50% oppose legalizing it, while 46% support legalizing it, and support for legalization has grown more or less steadily for the last fifteen years. According to the executive director of NORML:

Thirteen states have decriminalized marijuana, and that covers 130 million Americans. We now have fifteen states and the District of Columbia that have legal protections for qualified medical-marijuana patients, and that covers 90 to 95 million Americans.

The President has taken the position of not using federal law to punish people who use marijuana in compliance with state medical marijuana laws, and has paid essentially no price (and perhaps gains support) for taking this position.

In aspects of life where people have real experience and are affected in their daily lives, religious texts and doctrines and even community traditions are all but irrelevant to people's opinions. The previous generation's unthinkable possibilities can become the current generation's moral norms.

READ MORE - Policy Beliefs Can Change

Good News on Friday

Social Issues:


* Despite the failure of a civil unions bill in the Republican controlled Colorado House of Representatives (the bill probably would have passed a vote in the chamber as a whole), gay marriage is now supported by majorities of men, women, Democrats and independents in opinion polls and support has increased dramatically in every demographic in the last six years.

* Civil unions or gay marriage are available in many states.

* Restoration of gay marriage in California seems imminent.

* The federal government has decided to stop defending the constitutionality of part of the Defense of Marriage Act (DOMA) in court.

* Sodomy prosecutions remain unconstitutional.

* Teen pregnancy rates and teen birth rates are at near record lows.

* Abortion rates are at near record lows, but constitutional protections for a pro-choice position on abortion remain secure precedents.
* Interracial marriage has become much more common as the stigmas against it have fallen.

* Divorce rates have fallen for a number of years. The current generation is less likely to get divorced than there parent's generation.

* New York recently became the last state to permit "no fault" divorce in favor of its previous, deeply flawed, fault based divorce regime.

* The percentage of the population that identifies as having "no religion" is the fastest growing religious identification in the United States and the stigma associated with that religious identification is waning.

Public Health and Safety:

* Traffic accident deaths are at the lowest level since 1949, down 3% from 2009 to 2010 despite an increased number of passenger-miles traveled, and down 25% since 2005.  It has never been safer to drive a car per passenger-mile in the history of the world.

* Almost every kind of accidental death rate, other than deaths from overdoses of a select group of prescription drugs (mostly painkillers), are at near record lows.

* Public education campaigns have greatly reduced sudden infant death syndrome and traffic deaths of young children.  Those campaigns are also making a dent in shaken baby syndrome injuries.

* Smoking is down greatly and this is one public health area where the U.S. leads comparabhle nations in the Europe and Asia.  This has finally produced, this year, declining lung cancer death rates in women as well as men.

* Anti-scientific criticisms of vaccination of children have been definitively discredited.

* People with HIV/AIDS can now live much longer with effective treatments than they did a couple of decades ago and the infection rate for the epidemic has stablized or declined in a great many demographics. 

* A vaccine against HPV, one of the only sexually transmitted diseases not easily treatable with drugs and not effectively prevented with barrier contraception methods, has entered wide public use.

* Life expectencies are rising and infant mortality rates continue to fall.  Great gains have been made in treating cardiovascular diseases and cancer.

Education:

* Colorado has significantly increased its high school graduation rate with a new mandatory attendance law.

* The United States has one of the highest rates of college graduation and high school graduation in the world.

* The scores of armed forces recruits on entrance exams has improved.


Crime and Punishment:

* Crime rates, including murder, are at near record lows.

* Incarceration rates are no longer surging up as state budgets have tightened and forced a more balance look at the necessity of mass incarceration.

* Medical marijuana has wide support and is legal in at least seventeen states, and the federal government has agreed to tolerate it despite the lack of a formal federal legislative exception permitting it. Support for legalization of marijuana is high, and support for the punitive war on drugs approach is weak.
* Excessive and racially discriminatory in practice federal punishments for possession of small amounts of crack cocaine based on bad scientific assumptions have been greatly reduced.

* Many states, including Colorado, have shifted sentencing laws for drug crimes to favor a treatment approach over incarceration for drug users (as opposed to drug dealers).

* Serious white collar crimes receive serious criminal sentences rather than "slap on the wrist" sentences that fail to reflect their seriousness, and prosecuters have been willing to prosecute serious white collar crime defendants.

* DNA evidence has produced exonerations of many wrongfully convicted or wrongfully charged criminal defendants (mostly in rape cases), and has produced convictions of many rapists who would never have been charged otherwise.

* Wider use of videotape technology has resulted in many more cases of successful sanctioning of improper police conduct and has reduced the amount of lying about alleged confessions by criminal defendants.
* Illinois ended the death penalty and commuted the sentences of everyone on death row to long or life prison sentences.


* The U.S. Supreme Court has prohibited the use of the death penalty for crimes committed by the mentally retarded and for crimes committed by offenders under the age of eighteen.

* The U.S. Supreme Court has prohibited the use of the death penalty for almost all crimes other than murder (a few crimes such as treason and espionage where murder is an inferred likely possibility but not certain to have occurred are also constitutionally subject to the death penalty).

* The U.S. Supreme Court has prohibited the imposition of life without possibility of parole for crimes other than murder committed by people while under the age of eighteen.

* Many states have ended the use of life without possibility of parole sentences for juveniles entirely.



Economics:


* Housing market fundamentals such as long term inflation adjusted prices and price/rent ratios suggest that the housing price bubble has come close to working its way out of the economy.  Since mortgage rates remain fairly low, housing is at its most affordable for more than a decade in many markets.

* Inflation is low, but we are not in deflation.

* We are experiencing some positive GDP growth on a consistent basis.

* Unlike Iceland, Greece, Spain, Portugal and Ireland, we are not in or near a sovereign debt crisis.  The Irish have incurred government bailouts of its banks of $25,000 per person, which would be equivalent to $7.5 trillion if it has a population comparable to the United States.  The combined bailout cost in the United States is on track to be about 2% of that amount per capita and did not require foreign assistance or major austerity plans.

* The unemployment rate in the United States, at 8.8% for March, while not low, is the lowest it has been for two years.

* Subprime mortgage lending, which was exploitive to borrowers and unsound as a business model, has virtually vanished.

* Payday lending has been curtailed in many states including Colorado.

* Consumer debt levels have fallen, and increased credit card minimum payments systemically reduce the extent to which families can become overextended for the foreseeable future.

Military, Security and Foreign Affairs

* We are down to 50,000 troops in Iraq, none in front line combat positions, and there is some reasonable prospect that many of them will come home.

* Tunisia and Egypt have cast off dictatorships and on are a clear path towards democratic government.

* Significant democratic reforms or replacements of dictators are likely in Syria, Jordan, Yemen and Libya.

* A dictator in Pakistan was not so long ago forced out in favor of a democratically elected leader.

* An uprising in the Ivory Coast appears on track to depose a pretender to that country's Presidency whose election depended on election fraud in favor of the actual election winner.

* World powers organized to use economic sanctions and military force to prevent mass civilian killings and a restoration of totalitarrian rule in Libya.

* The Cold War is still over, more than a decade later, and Soviet style Communism lost.  Some former Soviet countries have joined the E.U., the Eurozone and NATO.

* Kosovo remains securely independent from Serbia and is widely recognized as a sovereign state.

* Nine and a half years later, 9/11 has not been repeated.  Foreign terrorism has not become a regular event in the U.S.  A new skyscraper and memorial are going up where the Twin Towers once stood.

* The U.S. military budget is being cut.

* China has started to move towards allowing the Yuan's value in foreign currency markets to float to market levels, reducing the importance a factor that has disfavored U.S. exports to China and favored China imports to the U.S.

* While China still accounts for about half of the world's executions, it has significantly curtailed its use of the death penalty and instituted new due process protections in that process.

READ MORE - Good News on Friday

Does Prenatal Testosterone Make You Smart?

Prenatal exposure of higher levels of testosterone turns out to be a relatively easy thing to measure because it manifests in a person's second to fourth digit ratio on their hands. Previous studies of digit ratio have suggest that this exposure may increase one's likelihood of being homosexual. A new study suggests that it may increase one's odds of having an IQ over 130, adding to prior work showing connections to primate social behavior, math test scores of seven year olds, and sports performance in women, to name just a few.

Scientists have also discovered a type of cell in the intestines that produces opium-like substances called tuft cells.

Also, in proof that probably dubious seeming experiments can produce good results, Japanese scientists have discovered that soaking superconductor material in Sake dramatically increases the rate at which the superconductors are produced. Further experimentation determined that superconductor materials prefer red wine to whiskey, suggesting that the alcohol itself is probably not the critical factor.

READ MORE - Does Prenatal Testosterone Make You Smart?

Obama Concedes DOMA is Unconstitutional

Learning a lesson from the decision of California's leaders in the Prop 8 litigation, where the state refused to appeal a trial court finding that Prop 8 was unconstitutional (the standing of the ballot measure proponents to appeal in that case has been certified to the California Supreme Court), President Obama has directed the Department of Justice to stop defending the constitutionality of Section 3 of the Defense of Marriage Act. The Justice Department has said:

The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman: . . . The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. . . . [T]he Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President ’ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3. . . .

Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

Colorado's Attorney General, John Suthers, has filed an amicus brief arguing that the Courts should uphold the constitutionality of Section 3 of the Defense of Marriage Act, despite the fact that it does not directly impact state law, over the outraged protests of supporters of gay rights in Colorado.

Section 3 of the Defense of Marriage Act states that the federal government, when applying federal law, shall disregard legal state law marriages that are not between one man and one woman.

The key parts of the Defense of Marriage Act state that:

Section 2. Powers reserved to the states:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of "marriage" and "spouse":

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

The decision does not by itself affect Section 2 of the Defense of Marriage Act which provides that the full faith and credit clause of the United States Constitution does not extend to same sex marriages. Thus, state, local, territorial and Indian tribe governments are not federally required to honor same sex marriages that are valid in other states.

Will President Obama's Position Be Sustained In the Courts?

President Obama's decision is likely to stick. Generally, the only parties with standing to participate in a case where a same sex couple alleges that their rights have been violated by Section 3 of DOMA are the federal government and the couple(s) bringing the lawsuit. The U.S. Supreme Court, particularly in recent years, has construed taxpayer standing (alleging the federal funds are used for an unconstitutional purpose) and citizen standing (alleging that the federal government is acting unconstitutionally) very narrowly.

I'll have to look later at the standing of members of Congress to speak for the federal government in litigation or intervene in lawsuits attacking the constitutionality of a statute. The general rule is that the Justice Department is the sole representative of the U.S. position. But, federal courts have the authority, although not necessarily the obligation, to appoint a lawyer to argue for a position like that constitutionality of a law or the rights of pro se parties, that is not represented by a party in court.

To speak for Congress, per se, or even one house of Congress, would ordinarily require the passage of a resolution by Congress or at least a house of Congress. But, members of Congress who sponsored or voted for legislation might be viewed by a court as suitable intervenors to argue to a court for a position that no party to the suit is willing to advance.

An IRS ruling last year holding that domestic partners in California were entiteld to split income for federal income tax purposes due to community property principles foreshadowed the changing position of the Obama administration on this issue.

Consequences

From a practical perspective, some of the main consequences of the decision are that gay married couples can file tax returns with married filing jointly status (and receive all of the benefits of married couples for estate taxation purposes), that same sex married couples qualify for federal immigration law treatment of spouses, and that same sex married couples can receive Social Security survivors benefits and spousal Veteran's benefits. The Veteran's benefits issue looms large now that Congress has repealed the "Don't Ask, Don't Tell" law.

Also, while not quite spelled out by this ruling, the implication seems to be that a same sex couple that is legally married in any state will thereafter be treated as married by the federal government, even if the state in which they live does not recognize same sex marriage. Since some states do recognize same sex marriage (and allow non-residents to be married in their state), that means that same sex couples that go to those states to be married and then return to their home states can receive all of the federal government benefits of marriage.

In addition to undermining the efforts of state governments to deny federal benefits of marriage to same sex couples in their own states, the determination also increases the stakes in the civil union v. gay marriage debate in the states. Until now, this has been a strictly symbolic debate. A civil union bill (SB 11-172) that creates as the legal rights and responsibilities of marriage under state law, but doesn't call it marriage (such as one pending in the Colorado General Assembly right now) would not constitute marriage under federal law, while one that calls the relationship marriage would have that effect.

Thus, states are left with multiple options including: (1) disallow both civil unions and same sex marriages, but acknowledge that couples with legal sex sex marriages from other states may receive federal treatment as married, (2) allow civil unions but not same sex marriage, which gives copules state law marriage rights but denies couples federal treatment as married until they get legally married in another state, or (3) allow same sex marriage.

Also, while Section 2 of DOMA does not require states to recognize same sex marriages from other states, it also does not prohibit them from doing so out of comity. In many states, the issue of when comity should recognize other state's legal acts when the full faith and credit clause of the United States Constitution does not require it has been left to the courts rather than being made a subject of legislation. Thus, judges could choose, influenced but not bound by the Section 3 of DOMA interpretation, to honor out of state same sex marriage even though the constitution and federal law do not require them to do so.

Civil unions have been a sensible legislative objective for same sex couples in many states, like Colorado, where the state constitution has been amended to prohibit same sex marriage, but not more broadly to prohibit civil unions or domestic partnerships of same sex couples as well. But, there will be increasing pressure to actually call this marriage legislatively, and as courts evaluate the issue.

READ MORE - Obama Concedes DOMA is Unconstitutional

Cohabitation Agreements

39 percent [of divorce lawyers] report an increase in the number of cohabitation agreements that protect property and other assets for partners living outside the perimeters of legally recognized marriages.

Rare in some areas of the country as recently as 15 or 20 years ago, such contracts are coming into their own, said Ken Altshuler, the group's president-elect in Portland, Maine. "They're really on the cutting edge of relationships today as more people move in together." The elite organization of divorce lawyers strongly advises cohabitation agreements for unmarried heterosexual couples along with same-sex partners whose unions are not legally recognized, especially when children are adopted by one but not both partners.

"To go to court to enforce your rights is just very expensive," said Susan Bender, a Manhattan lawyer who routinely handles cohabitation agreements for same-sex couples.

"Otherwise there's litigation, the hiring of an attorney," she said. "It's dispiriting to young couples to come into my office to begin their romantic relationship with figuring out who gets the IRA, but it makes so much sense." . . . cohabitation agreements can protect an unmarried person's stake in jointly owned property like a house or a condo and guard against seizure for payment of spousal debt.

"If we break up and there's no agreement, I don't have a claim," Viken said. "The litigation between two people who own a house together and aren't married is much more difficult than two married people who are getting divorced." About 30 percent of the attorneys who responded to the survey said a majority of cohabitation agreements they draw up are for same-sex couples. With only a handful of states recognizing gay marriage, the agreements can spell out legal rights both in and out of state.

From here.

Colorado doesn't recognize gay marriage and while the Colorado General Assembly is considering a civil unions bill this session, which I support, it doesn't have one yet.

I tend to call them domestic partnership agreements, but I prepare them and taught financial planners about the circumstances when they are useful and the terms they should contain when I was a professor.

READ MORE - Cohabitation Agreements

Sexual Freedom v. Freedom From Exploitation

Anyone who reads this blog with any regularity knows that I have strong opinions on a great many issues. But, now and then, a case comes along that is so hard to evaluate, that it is very hard to see a right answer. The case of the 41 year old British man with an IQ of 48 who was in a same sex relationship and banned from having sex is one such case. It presents hard issues that are worth grappling with in a situation that is unfamiliar to most of us.

The Facts

The facts, insofar as we know them are as follows:

The 41 year-old [man] had been in a relationship with a man with whom he lived and told officials "it would make me feel happy" for it to continue.

But his local council, which provides his accommodation, decided his "vigorous sex drive" was inappropriate and that with an IQ of 48 and a "moderate" learning disability, he did not understand what he was doing. . . . the man known as Alan was described as being physically able but "seriously challenged in all aspects of his mental functionality". He lived in a home provided by the council, where he developed a sexual relationship with a man called Kieron by the court. Alan was also accused of making lewd gestures at children in a dentists' surgery and on a bus, although no police action was taken.

An IQ of 48 is a level of intellectual functioning lower than 99.8% of the general population, and is commonly described as "moderate mental retardation" per the DSM-IV. It is roughly equivalent to having the mental abilities of an eight year old child.

The Law

The law in Britain gives the state broad powers in such a case: "Under the Mental Capacity Act 2005, [judges on Britain's Court of Protection] have the power to make life-or-death decisions for people deemed to lack the intelligence to make them for themselves - such as ordering that they undergo surgery, have forced abortions, have life-support switched off or be forced to use contraception."

In Colorado, and most U.S. states, an individual in this situation would probably have a legal guardian appointed for him under the supervision of a general jurisdiction or probate court or some other court with comparable equity jurisdiction (a type of jurisdiction named after the British courts that once, but no longer, have jurisdiction over these kinds of cases). In Colorado, a guardian's authority can vary from case to case as set forth in a judge's order, although at common law a guardian of an adult had rights comparable to the rights of a natural parent's rights when that parent's child is in the parent's custody.

In other words, while the issue would present itself somewhat differently, a U.S. court could probably grant a guardian of an adult with an IQ of 48 the right to decisions similar to the ones made by the Court in this British case.

Procedural History

The town hall began court proceedings in 2009 to restrict contact with Kieron on the grounds that he lacked mental capacity, and an interim order was made. . . . A psychiatrist involved in the case tried to prevent the man being given sex education, on the grounds that it would leave him "confused".

Mr Justice Mostyn said the case was "legally, intellectually and morally" complex as sex is "one of the most basic human functions" and the court must "tread especially carefully" when the state tries to curtail it.

But he agreed that the man, known only as Alan, should not be allowed to have intercourse with anyone on the grounds that he did not have the mental capacity to understand the health risks associated with his actions.

Under the judge's order, the man is now subject to "close supervision" by the local authority to ensure he does not break the highly unusual order. The judge concluded: "Alan does not have the capacity to consent to and engage in sexual relations.

"In such circumstances it is agreed that the present regime for Alan's supervision and for the prevention of future sexual activity is in his best interests."

"Since then Alan has been subjected to close supervision to prevent any further sexual activity on his part," said the judge.

Analysis

There are good reasons to be skeptical of this kind of court order. The eugenics movement sponsored movement in the 20th century to sterilize the mentally retarded is generally seen as a class historical instance of government exploitation of vulnerable individuals. There is also a history of government abusing its authority to punish gays in the name of mental hygiene. Some high profile cases in Britain involving prominent intellectuals are particularly notorious.

On the other hand, the exploitation, sexual and otherwise, of people who don't have the capacity to consent intelligently to what people ask of them is also a long standing problem. A central theme of Steig Larsson's Millennium Series (which starts with "The Girl With The Dragon Tattoo") is that vulnerable people, such as wards with guardians appointed for them and illegal immigrant women are subject to a horrible injustice when they are sexually exploited. Sexual exploitation is sufficiently common in this situations that in the popular imagination, at least, at is seen as almost the unpleasant norm in prisons, foster care situations, and households where an impoverished single mother lives with a boyfriend unrelated to her children.

We have statutory rape laws that declare that children under a certain age are incapable of consenting to sex and that someone who does so has committed the crime of rape. While those laws can be controversial when applied to high schoolers who are past puberty and routine have sex with each other, there is a wide consensus that they are appropriate when applied to pre-pubescent children. Likewise, while there is intense controversy over the harsh sentences imposed for people who merely view child pornography, and over the near criminalization of innocent child nudity, there is widespread consensus that it is a serious crime to use pre-pubescent children to create pornography or to pimp out pre-pubescent child prostitutes, and that there is a genuine government interest in destroying the economic market that drives its creation.

Certainly, there would be a very wide consensus that is would be a serious crime for an adult to have sex with an eight year old, regardless of the sex of the parties involved.

But, there are many important ways that a 41 year old is different from an 8 year old, even if they have similar mental capacities. Adults routinely have sex for pleasure. Many adults men are gay or bisexual. Eight year olds have genuine opinions and feelings and are capable of engaging in surprisingly sophisticated relationship, of understanding differences between right and wrong to a considerable extent, and consenting to a variety of agreements. Most parents allow their eight year olds to make many choices about their clothes and room decor and food to eat when eating out, to largely choose their own friends at school, and to spend small amounts of money as they see fit. Eight year olds can play baseball and board games, can hug each other and family members in genuine expressions of love, and make many other decisions for themselves.

Even though statutory rape is often theorized as an incapacity to consent, there is really more to it. Pre-pubescent children aren't just intellectually incapable of consent, they are hormonally and physically not yet at a stage of development where their bodies are ready for sex.

Statutory rape laws for adolescents, which were almost universally adopted initially with the understanding that they would pertain to adolescent or adult men seeking to have sex with teenage girls, were also rooted in the concern that teenage girls due to their youth and adolescent impulsivity are especially vulnerable to making impulsive bad decisions that have the potential to carry with them the serious long term consequences of pregnancy, parenthood and quite possibly either a shotgun marriage for life or a lifetime in which one is unmarriagable and destitute as a result.

A different way to view statutory rape laws, that is gaining increasing credence, is to view statutory rape not as an incapacity to consent in the same class as a stranger drugging you and then having sex with you, but as a distinct subset of cases where someone in a position of trust (by virtue of being an adult in states where there is a Romeo and Juliet exception) abuses that position of trust. In this view, statutory rape is less like a date rape drug case and more like a sexual harassment of a subordinate employee case. The gravamen of the wrong is abuse of power within a relationship by someone whom we presume under the law should know better than to do so.

There is also a widespread view that sexual relationships carried on by someone who isn't ready for them or capable of "truly understanding" what sex involves (do any of us ever really reach that blissful state) will inflict intense psychological trauma that will destroy a person's entire well being, also making it far more serious than other kinds of things to which one might consent.

If a 41 year old man who is physically ready for sex, and perfectly well could be homosexual or bisexual, is voluntarily (to the extent that his eight year old intellectual capacity permits) having sex with another man and enjoying the experience, who is to say that it really is wrong?

This man doesn't appear to be suffering from psychological trauma. He doesn't have to worry about having children or being rendered unmarriagable or forced into a marriage that can't be legally terminated. His body, and no doubt his hormones, are ready for sex and have been for decades. Finding someone who is ready and willing to satisfy his sexual drive probably isn't very easy for a 41 year old with an IQ of 48 who lives on welfare in public housing. It is certainly plausible that Alan is gay or bisexual (indeed, by some definitions his acts and words are sufficient to say that this is true as a matter of definition), that the relationship between Alan and Kieron is as sincere, voluntary, loving and non-exploitative as the sexual relationship between any two single adults, and that the town's intervention is simply a case of an inability to genuinely come to terms with the idea that two men can have legitimate, loving sexual relationships. There are certainly strong hints in this case that this is what is happening in this situation.

On the other hand, it certainly wouldn't be implausible that Kieron is an evil hearted, exploitative manipulator who has managed to get Alan to say things that hide Alan's inner feelings of pain and being used and compelled into something that makes him uncomfortable that Alan isn't capable of articulating to legal system officials in that kind of atmosphere and that Alan has no sexual attraction to Kieron, but has trouble distinguishing between sexual attraction and the kind of platonic physical contact that is normal between eight year old boys.

While Kieron's motives aren't the center of the court's inquiry, which is really about what is best of Alan, it is certainly possible to see Alan as being in a position a bit like someone who is acting happy because he has been tricked into thinking that he has formed a relationship that was really just a scheme to make him the butt of a cruel joke and doesn't know it yet, but is sure to be furiously angry and miserably sad when he realizes it.

By analogy, contrary to common belief, a large share of bona fide childhood sexual abuse victims have trouble remembering the incidents because they weren't as aware of the special meaning that our culture attaches to sexual contacts at the time, and feel the bulk of the psychological trauma that they experience not when the sexual abuse actually takes place, but when they get old enough to gain an understanding of that special meaning and finally realize that an adult whom they trusted exploited them all those years ago. A reasonable person could fear that Alan is at grave risk of experiencing a similar kind of traumatic realization and suffering dearly at a psychological level when and if that happens.

If one thinks that absence of capacity to consent is really all that matters in a case like this one, Kieron's motives are irrelevant and people with the intellectual capacity of eight year olds are morally equivalent to actual eight year olds and shouldn't be subjected to sexual activity. But, if the important question is really abuse of a position of trust that Kieron holds as the intellectually normal close friend of mentally retarded Alan, then Kieron's motives and what is going on in the interactions between Kieron and Alan matter a great deal to the merits of whether a court should or should not prevent Alan from having sex with Kieron.

On balance, I'm skeptical of the British judge and town government's decisions in this case. It bears the stink of a lot of unreasonable prejudices. But, I also recognize that this decision is a highly fact specific inquiry for which ordinary social intuition provides few exact precedents, and that decision makers further removed from the facts are at a decided disadvantage. It is hard to say with any great degree of certainty from the little that we know that the judge's decision was clearly wrong in this unfamiliar territory.

READ MORE - Sexual Freedom v. Freedom From Exploitation