Word is Out

In about six weeks, I'm going to be giving a talk about the state of gay rights to the Sacramento County Bar Association's Labor and Employment section. I'm very much looking forward to it. I've been musing on how to approach the topic in a way that will provide some new information to attorneys who probably think they know the legal standards for protected classes.

Then it hit me; even younger gay attorneys are not likely to know much about the history of the gay rights movement. And in light of Justice Scalia's unrepentant desire to stamp out nearly 50 years of civil rights progress (he calls homosexuality an "invented minority"), the history of our movement should be

Antinonus. Image credit LGBT History Project.

taught in every school. So, the issue is: making sure people know why supporting gay rights is so important.

Last night I re-watched the documentary Word is Out. Its a montage of stories about gay and lesbian people who came out of the closet in the United States as early as the 1950s and as late as the recording of the movie in 1978. One of our good friends, Rob Epstein, worked on this film as his very first project. I definitely recommend getting a copy and watching it. Its a time-capsule about life in our recent past.

But the story also demonstrates that sexual orientation is innate. A quality of our lives which is as mutable as our skin color or parentage. Each person describes the challenges he or she faced on coming out: rejection by loved ones, self loathing, and medieval "treatments" applied without advice or consent.

With each generation of gay and lesbian persons with the bravery and fortitude to come out of the closet, each successive generation can help the world see us for what we are: normal people who happen to love persons of the same sex.

Some day, there may not need to be a gay rights movement. That day is far from the present day. Only if we step up will our march toward real equality be achieved. We should not mistake this for what it is: a war. We've won so many battles over the years and have so many heroes; it can be easy to grow complacent. Alfred Kinsey, Stonewall, Harvey Milk, Bowers v. Hardwick (upholding sodomy laws), Lawrence v. Texas (recognizing that sodomy laws are unconstitutional), DOMA and its repeal, and the rising tide of gay marriage.

The fight is far from over. We need all the allies we can get!

Your,
Bear

The Jury System

Even for me, an attorney, it can seem so useless: the many hours sitting doing nothing, staring at the poorly laid travertine, hoping your name is called, but dreading it is not....Ah! the joy and sorrow that is jury duty. The jury system is a relic in the English system of law we practice here in the States, but is it worth it?

After all, the judge is usually in a much better position to grasp the subtle meaning of key facts; the jury, on the other hand, is often driven by emotion (likely, on the whole, judges are probably more able to control their prejudices than a wholly disinterested juror). The jury system inconveniences so many: the Court has to maintain whole staffs and expensive courthouse real estate to manage the hundreds of potential jurors who show up for any given summons date, the parties must engage in expensive, time consuming, and uncertain voir dire (questioning of the potentials), and of course the jurors have to disrupt their lives for at least one day, if not for weeks.

What are the pluses then? Historically speaking, we are each (usually) entitled to a jury of our peers when some liberty or property interest is on the table. These peers are selected almost at random from the community the parties live in, then refined by the questioning process to help minimize the potential prejudice. When you see tactics used in movies to hone the questioning, going so far as to pre-research potential jurors (which may happen in very high-value cases), you can understand how important the jury selection process is. This is a process unavailable if the parties choose to allow the court to act as fact-finder.

Additionally, a jury of legal laymen forces the attorneys to craft their arguments in understandable terms. This benefits society as a whole, because if and when these arguments are heard on appeal they may well become law in and of themselves. This process of creating legal precedent is thus driven by the parties...but shaped by the legal system requiring real humans to understand what is happening to their fellow citizens.

The jury system allows citizens to participate in the judiciary, which would otherwise remain alien to most people. This bolsters confidence in the judiciary, especially in an era where it is so politically charged.

The jury system pulls the states ability to make final decisions, and places it in the hands of the people. A very democratic concept indeed. As an attorney, my job is to look at the facts and apply them to the law. As citizens -- for better or worse -- jurors can place the events in a cultural context. This nuance can change the color of the plaintiff's claim, and decide otherwise razor thin issues. With luck, of course, they do this unemotionally and without bias.

This subtle difference is what we call "justice." For if the issues weren't so razor thin, the parties would not go through the expense of adjudicating them. The jury is where the tumult ends, and the parties have to hone their cases to the issues that matter. All the inefficiency and inconvenience aside, it is this gleam of justice which makes the jury a necessary part of the judiciary.