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Legal news from Thursday, August 5, 2010

UN SG renews call for nuclear disarmament
Daniel Richey on August 5, 2010 5:12 PM ET

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[JURIST] UN Secretary-General Ban Ki-Moon [official website] called [press release] for the elimination of all nuclear weapons Thursday in a speech [text] delivered during a visit to the Japanese city of Nagasaki. In his speech, Ban emphasized the importance of eliminating existing nuclear weapons and using political pressure to create stronger nonproliferation treaties:
In the General Assembly and at the review conferences of the Nuclear Non-Proliferation Treaty, Japan has long supported concrete, practical measures aimed at achieving a world free of nuclear weapons. My visit here has strengthened my conviction that these weapons must be outlawed, either by a nuclear weapons convention or by a framework of separate mutually-reinforcing instruments. I urge all nations to support my five-point action plan for nuclear disarmament and to agree to negotiate a nuclear weapons convention at the earliest possible date.

Ban unveiled his plan for nuclear disarmament [press release] in August 2009. It involves a series of mutually-binding treaties, backed by a "credible system of verification" and compulsory disclosure of disarmament-related reports to the public.

The UN Security Council [official website] voted [JURIST report] in June to impose a fourth round of sanctions on Iran [press release] for its failure to disband the nation's uranium enrichment program. In April, US President Barack Obama and Russian President Dmitry Medvedvev [official profiles] signed [JURIST report] the New START Treaty [text, PDF; BBC backgrounder]. Under the terms of the treaty and its protocol [text, PDF], both countries would be allowed only 1,550 strategic warheads worldwide, a decrease from the 2,200 currently permitted. The treaty would also re-establish mechanisms to allow each party to inspect the other's arsenal. Last may, Ban and other world leaders condemned [JURIST report; statement text] a North Korea [JURIST news archive] nuclear weapon test, a violation of the 2006 UN Security Council ban on nuclear missile tests [Resolution 1718 text; JURIST report].

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Senate votes to confirm Kagan to Supreme Court
Dwyer Arce on August 5, 2010 3:55 PM ET

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[JURIST] The US Senate on Thursday voted 63-37 [roll call vote] to confirm Solicitor General Elena Kagan [official website; JURIST news archive] to the Supreme Court [official website]. The vote fell largely along party lines, with only one Democrat voting against her confirmation, and five Republicans voting in favor. Shortly before the vote, Senator Scott Brown (R-MA) announced that he could not support Kagan's confirmation [press release] because of her lack of judicial experience, despite finding her "brilliant." Kagan is expected to be sworn in on Saturday. The Senate heard final statements on the confirmation [JURIST report] on Tuesday. During the debate, Senate Republicans chose not to pursue a filibuster [Washington Post report] given the likelihood of its failure. Senator Jeff Sessions (R-AL), the ranking Republican on the Senate Judiciary Committee [official website], questioned Kagan's "discipline" [video] and called her an "activist, liberal, progressive, politically-minded judge who will not be happy to simply decide cases, but will seek to advance her causes." Senator Lindsey Graham (R-SC) explained his decision to support Kagan [video], arguing that the Advise and Consent Clause of the US Constitution [text] is not meant to subject nominees to the discretion of the Congress, but only to check against the appointment of judges who are grossly lacking in character or qualifications or who were inappropriately nominated.

The Senate Judiciary Committee voted 13-6 to send the nomination to the full Senate last month after the committee delayed its vote [JURIST reports] at Sessions's request. In asking for the delay, Sessions cited concerns over Kagan's positions on legislation during the her time working in the Clinton administration and called her answers to questions during the hearing "less than candid." Kagan's confirmation hearings concluded in June [JURIST report]. President Barack Obama nominated Kagan [JURIST report] in May to replace former justice John Paul Stevens, who announced his retirement [JURIST report] in April.

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Chicago man charged with attempting to aid al Qaeda
Daniel Richey on August 5, 2010 3:53 PM ET

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[JURIST] Federal authorities arrested [FBI release] a Chicago man Tuesday night on suspicion that he planned to travel to Somalia and train with terrorist groups there in order to become a suicide bomber. Acording to a complaint [text, PDF] filed Tuesday in the U.S. District Court for the Northern District of Illinois [official website], Shaker Masri, an American citizen born in Alabama and raised abroad, was only hours from boarding a flight when he was arrested by Federal Bureau of Investigation (FBI) Joint Terrorism Task Force [official website] agents. In the last month, according to an FBI informant, Masri began to lay out a specific plan to travel to Afghanistan and Somalia [CFR backgrounders] to join jihadist fighters with al Qaeda [GlobalSecurity backgrounder; JURIST news archive] and its Somali affiliate al Shabaab [CFR backgrounder; JURIST news archive]. Masri was charged with two counts of attempting to provide material aid to a terrorist organization. He could receive up to 15 years in prison for each charge if found guilty, and is being held without bail.

The Department of Justice (DOJ) filed charges [JURIST report] last month in another case of domestic terrorism, against five members of al Qaeda allegedly involved in a plot to detonate a bomb in the New York City subway. Najibullah Zazi, the Colorado man at the center of that plot, pleaded guilty [JURIST report] to the conspiracy in February. In June, Pakistani-born US citizen Faisal Shahzad [BBC profile] pleaded guilty [JURIST report; indictment, PDF] to 10 counts of terrorism and weapons charges for attempting to detonate a car bomb in New York City's Times Square. In May, lawmakers introduced a bill [JURIST report] that, if passed, would strip US citizenship rights from those suspected of engaging in terrorism. In March, Senators John McCain (R-AZ) and Joseph Lieberman (I-CT) [official websites] proposed a law [JURIST report] that would require terror suspects, including US citizens, to be stripped of their Miranda rights and to face military interrogation and trial. The proposed legislation has been controversial [JURIST op-ed], with critics claiming its impact "would be a fundamental miscarriage of justice."

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Federal judge allows Iraqis' suit against military contractors to proceed
Dwyer Arce on August 5, 2010 2:34 PM ET

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[JURIST] A judge for the US District Court for the District of Maryland [official website] has denied a motion to dismiss [opinion, PDF] a lawsuit filed by a group of former Iraqi detainees against US military contractors. The lawsuit, Al-Quraishi v. Nakhla [case materials], filed in June 2008 [JURIST report], alleges that L-3 Services, Inc. [corporate website] violated US and international law by directing and participating in abuses at Abu Ghraib [JURIST news archive] and other Iraqi prisons. The defendants in the case had moved for dismissal in November 2008, claiming immunity under the laws of war and sovereign immunity. Additionally, they claimed that the Alien Torts Claims Act [28 USC § 1350 text], under which the plaintiffs were suing, was not applicable because they did not violate the law of nations. The defendants also argued that they were immune from the claims made under state law because of government contractor immunity and because Iraqi law should be applied. Judge Peter Messitte rejected these claims, explaining:
Defendants' actions arguably violated the laws of war such that they are not immune from suit under the laws of war. Additionally, the Court is not inclined, at this stage of the proceedings, to find that Defendants are shielded by derivative sovereign immunity, since the Court is unable to determine from the Complaint alone that Defendants were acting within the scope of their contracts with the United States as that defense requires. The Court further rejects the government contractor immunity defense[.] ... The Court declines to dismiss the Alien Tort Statute claims since, in the Court's judgment, Plaintiffs' claims constitute recognized violations of the law of nations, appropriately assertable against Defendants. As for Plaintiffs' state law claims, the Court finds that they are governed by Iraqi law. ... [T]he Court is unable to determine at this time whether Defendants are in fact immune under Iraqi law.
The court held that the case must continue to discovery to answer the issues that it was unable to resolve at this point in the litigation.

In October 2008, lawyers for private US military contractor CACI International, Inc. [corporate website], which was named as a defendant along with L-3 in the original complaint, filed a motion to dismiss the charges [JURIST report] against the company based on a claim of immunity. This motion was granted in January 2009. The lawsuit was filed in 2008, alleging that L-3 and CACI subjected them to torture, cruel and inhuman treatment, committed war crimes, assault and battery, sexual assault and battery and infliction of emotional distress, in addition to conspiracy to commit those acts.

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UN SG calls for 'sense of urgency' in forming Iraq government
Drew Singer on August 5, 2010 1:32 PM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official website] on Wednesday called [report, PDF] for Iraq's political leaders to work together "with a higher sense of urgency" to form a new government, warning that further delays could create more instability. Since holding elections [JURIST report] five months ago, there have been disagreements within the country as to who has the authority to build the new government [UN release], Moon told the UN Security Council Wednesday morning. Moon outlined the possible consequences of a government not being formed quickly:
I am concerned that continued delays in the government formation process are contributing to a growing sense of uncertainty in the country. Not only does this risk undermining confidence in the political process, but elements opposed to Iraq's democratic transition may try to exploit the situation. The number of recent security incidents throughout Iraq, mainly in the north of the country and in Baghdad, including attacks against newly elected members of parliament and religious pilgrims, are of particular concern.
Once this process is completed, Moon said the government can turn its attention to pressing domestic issues including Arab-Kurdish disputed areas revenue-sharing, the adoption of legislation related to hydrocarbons, relations among the federal and regional governments, the constitutional review process and the strengthening of institutions of governance and the rule of law.

Iraq has faced several obstacles in solidifying the nation's newly-created democratic government, which has been riddled with tension between Shiite Muslims and the Sunni minority. In June, the UN urged the Iraqi government to ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [text; JURIST report]. Iraq remains one of 45 member-countries that have yet to ratify the treaty. Also in June, the Iraqi Supreme Court ratified the final results [JURIST report] of the country's March 7 parliamentary elections, officially confirming a narrow victory for the secular Iraqiya alliance, led by Iyad Allawi [Al Jazeera profile]. The victory gave Iraqiya a slim two-seat lead over the Shiite State of Law [party website] coalition of incumbent Prime Minister Nouri al-Maliki [BBC profile]. Allawi hopes Iraqiya's victory will be a turning point for bipartisan participation among the religious sects, but his goal of unification may be thwarted, as Maliki's bloc has already announced an alliance with the Shia Iraqi National Alliance, which polled third, to form the largest grouping in parliament.

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Rights groups to continue suit against terror suspect defense licensing
Dwyer Arce on August 5, 2010 11:58 AM ET

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[JURIST] The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) [advocacy websites] on Wednesday announced that they would pursue a legal challenge [press release] to the Specially Designated Global Terrorist (SDGT) licensing scheme, despite being issued a license to represent Anwar al-Awlaqi [NYT profile]. Al-Awlaqi is a US citizen who is suspected of being a member of al Qaeda [GlobalSecurity backgrounder] in Yemen and was labeled a SDGT last month. The SDGT designation is issued by the Treasury Department Office of Foreign Assets Control (OFAC) [official website] under federal law [50 USC § 1701 et seq. text], freezing the assets of the individual and preventing the provision of legal services without a license from the government. In announcing the continuance of the lawsuit despite the license, the rights groups expressed appreciation for OFAC's prompt response, but explained:
OFAC's regulations are unconstitutional because they require lawyers who are providing uncompensated legal representation to seek the government's permission before challenging the constitutionality of the government's conduct. Notably, OFAC has indicated that the license issued to us today can be revoked at any time. We will pursue our claim that OFAC's attorney-licensing regulations are unconstitutional and should be invalidated.
OFAC Director Adam Szubin [official profile] said Tuesday that his office would be willing to issue a license [JURIST report] to the rights groups, noting that it is the policy of the OFAC to facilitate the provision of pro bono legal services [Politico report] to those sanctioned by the body.

The ACLU and the CCR filed a lawsuit earlier this week [JURIST report] challenging the constitutionality of the licensing scheme after OFAC failed to respond to the organizations' request for a license in al-Awlaqi's case. The rights groups were retained by al-Awlaqi's father in June to provide pro bono legal assistance in challenging the decision of the Obama administration to approve al-Awlaqi for targeted killing in January. The groups allege that the legal assistance ban issued by the Treasury Department exceeds its statutory authority and violates the First and Fifth amendments [Cornell LII backgrounders] to the US Constitution [text]. The groups argue that it violates their First Amendment rights because it interferes with their "right to represent clients in litigation consistent with their organizational missions," and violates the Fifth Amendment because it prevents US citizens from "obtaining legal representation of their interests in US courts." The ACLU described the licensing policy [press release] as an "alarming denial of rights in any one case endangers the rights of all Americans. Attorneys shouldn't have to ask the government for permission in order to challenge the constitutionality of the government's conduct."

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Opponents of Kenya constitution concede in referendum
Daniel Richey on August 5, 2010 10:51 AM ET

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[JURIST] Opponents of a new Kenya constitution [text, PDF] on Thursday peacefully conceded to those in favor of the change, after early results from a national referendum strongly favored [IIEC release] the constitution. Voting on the constitution took place Wednesday amid concerns [Standard op-ed] that high turnout and heated debate over the referendum could cause a repeat of the violence seen during the country's presidential election [JURIST report] in 2007. Kenya's new constitution includes several significant checks on presidential authority, including a requirement that presidential appointees face parliamentary confirmation and an end to the presidential appointment of judges. Additionally, members of parliament receiving cabinet positions will be required to relinquish their legislative seats. Full results for the election are expected [Standard report] to be published by the end of the week.

The creation of a new constitution was part of a power-sharing agreement [JURIST report] agreed to in 2009 between President Mwai Kibaki [official profile] and opposition leader Prime Minister Raila Odinga [official website] that brought to an end the civil unrest that followed the contested election. Election officials have sought to make the referendum as inclusive and peaceful as possible by allowing prisoners to vote and prosecuting those who suggested violence in reaction to the changes [JURIST reports] under hate speech laws.

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Advocacy group files suit against NYC over Cordoba House Islamic center
Dwyer Arce on August 5, 2010 10:37 AM ET

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[JURIST] The American Center for Law and Justice (ACLJ) [advocacy website] on Wednesday filed a lawsuit [petition, PDF; press release] against the New York City Landmarks Preservation Commission (LPC) [official website], seeking to overturn its decision to allow the Cordoba House [project website] project to proceed. The Cordoba House, a planned Islamic cultural center and mosque to be located two blocks from the site of the 9/11 attacks [JURIST news archive], has been criticized [NYT backgrounder] for its proximity to the former location of the World Trade Center. The lawsuit, filed in the New York State Supreme Court [official website], the state trial court, alleges that the LPC violated the New York City Charter [text, PDF] and Administrative Code [text] in refusing to designate the structure currently at the site as a landmark. In explaining the lawsuit, the petition stated:
The building stands as an iconic symbol to an uninterrupted linkage of the rise of American capitalism with our current quest to preserve our freedom and democracy. The building, therefore, should stand as part of the commemorative and educational experience of our shared political, cultural and historic heritage. The land use process of New York City now threatens to do what the terrorists failed to accomplish and destroy a building that has been under consideration for landmark status for twenty years.
In his response [press release] to the LPC descision, Corboba House Chairman Imam Feisal Abdul Rauf said that he hoped the planned center would "be a home for all people who are yearning for understanding and healing, peace, collaboration, and interdependence." The first hearing in the case is expected in October.

Muslim communities in the US have faced increasing legal obstacles in recent years, often due to alleged connections to terrorism. In June 2009, the American Civil Liberties Union (ACLU) [advocacy website] issued a report [JURIST report] finding that US anti-terrorism laws are hindering Muslim charities and violating the constitutional rights of practicing Muslims. The report alleged that current US laws and policies affect Muslims' right to practice their religion through charitable giving, violating constitutional freedoms and fundamental human rights. The ACLU also argued that the policies impeded the right of US Muslims to practice their religion by participating in Zakat, violating their First Amendment [Cornell LII backgrounder] rights.

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Exiled Egypt rights activist returns despite charges
Dwyer Arce on August 5, 2010 9:21 AM ET

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[JURIST] Egyptian dissident Saad Eddin Ibrahim [professional profile] on Wednesday returned to Egypt after three years of exile, despite nine outstanding criminal complaints against him. Ibrahim, founder of the Ibn Khaldoun Centre for Development Studies [academic website], has been a prominent human rights activist and outspoken critic of Egyptian President Hosni Mubarak [NYT profile]. Ibrahim returned for the two-week visit after Egyptian prosecutors assured Ibrahim's lawyers that his arrest was not sought [AP report] by the government. The outstanding complaints include charges that he caused the US Congress to reduce its financial aid to the Egyptian government and that he helped fellow constitutional reformist and former head of the International Atomic Energy Agency (IAEA) [official website] Mohamed ElBaradei [Al Jazeera profile] to communicate with the US government. Ibrahim originally left Egypt to escape prosecution, taking up residence in Qatar [Al Jazeera report].

In May 2009, an Egyptian court overturned Ibrahim's conviction [JURIST report] on charges related to defaming Egypt, finding that the charges were without merit. A dual US and Egyptian citizen, he was accused of defaming Egypt by criticizing its human rights practices and politics, left the country, and was tried and convicted in absentia. The decision overturns a two-year jail sentence [JURIST report] imposed against Ibrahim. Last year, the US State Department [official website] criticized Ibrahim's prosecution [JURIST report] and advocated the protection of civil and political rights. The charges against Ibrahim have been filed by private citizens, who may file lawsuits against individuals who make statements that harm society under Egyptian law.

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FDA report: Medical device oversight too lax
Drew Singer on August 5, 2010 9:11 AM ET

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[JURIST] Vague language and inconsistent interpretations of policy have hindered the Food and Drug Administration's (FDA) [website] ability to effectively evaluate and approve medical devices, according to a new FDA report [text, PDF] released Wednesday. A committee from the FDA's Center for Devices and Radiological Health (CDRH) [website], which regulates medical devices sold in the US, conducted the report to address concerns over whether the current 510(k) program, which oversees the approval of devices similar to those already approved, achieves its goals of "making safe and effective devices available to the public while fostering innovation." The committee recommended that language be improved to require producers of medical devices to submit more safety information to receive approval and be able to more easily revoke approval for products that prove to be unsafe or ineffective. The committee found that the FDA's unclear expectations of would-be medical devices are resulting in lax standards and avoidable complications:
With regard to informed decision making, the Working Group found that it is challenging for review staff to obtain, in an efficient and predictable manner, sufficient device information to make well-supported decisions. To obtain such information without creating unnecessary delays and burden, CDRH must provide submitters with as much up-front clarity as feasible about its evidentiary expectations.The Working Group therefore recommends that CDRH take steps to foster the submission of high-quality 510(k) device information, in part by better clarifying its expectations for 510(k) content.
CDRH Director Jeffrey Shuren [official profile] said that his agency is ready to make the necessary improvements [press release] in order to "support device innovation while assuring patients receive safe and effective devices." CDRH has opened another public docket to receive additional comments on the report, which it will review before proposing any changes.

The CDRH established the staff committee last year. Since then, it has been reviewing input from public meetings, open dockets, data analyses, and input from CDRH staff to make the evaluation. Section 510(k) of the Food, Drug and Cosmetic Act [text] requires device manufacturers to notify FDA of their intent to market a medical device at least 90 days in advance, so the FDA can inspect and classify it.

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BP facing $10 billion class action lawsuit over chemical leak
Erin Bock on August 5, 2010 7:54 AM ET

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[JURIST] Oil company British Petroleum (BP) [corporate website] was sued Tuesday in a $10 billion class action lawsuit [complaint, PDF] over a toxic chemical leak that lasted for 40 days at its refinery in Texas City, TX. The complaint was filed by Texas attorney Anthony Buzbee [firm website] in the United States District Court in the Southern District of Texas [official website] on behalf of more than 2,000 plaintiffs made up of refinery employees and local residents. The suit alleges that BP knowingly allowed over 500,000 pounds of toxic gases, including 17,000 pounds of benzene [CDC fact sheet], a carcinogen, to escape from a malfunctioning hydrogen compressor from April 6, 2010 until it was repaired on May 16, 2010 and did not notify Texas City officials of the leak until it was repaired. In addition to the leak, the suit cites 13 incidents from 2002-2009 at the refinery where toxic gases were released into the environment as well as several fires and explosions that killed more than 20 workers and injured more than 1,000 people. The document criticizes BP's safety record and recalls recent investigations and incidents across the country, including the Deepwater Horizon oil spill [BBC backgrounder, JURIST news archive]. The plaintiffs are suing the oil company for negligence and private nuisance as well as assault and battery, alleging that BP's conduct was committed purposefully or with the knowledge that the plaintiffs would be harmed by the company's actions. The plaintiffs are also seeking an injunction to prevent BP from destroying or altering any evidence that they possess regarding the leak.

Last month, Louisiana residents filed a lawsuit [JURIST report] against BP in a Louisiana state court alleging that the company's negligent actions led to the Deepwater Horizon oil spill and that it was negligent in its handling of the cleanup. In June, two lawsuits [JURIST report] were filed against the oil company alleging that BP committed a series of criminal acts to deceive the public regarding its ability to safely drill for oil and contain oil in the event of a spill and that the company engaged in fraudulent business practices related to its claims payment process. Also in June, US Attorney General Eric Holder [official website] announced that the Department of Justice [official website] would investigate whether BP violated any civil or criminal statutes [JURIST report], resulting in the oil spill.

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Federal judge rules Proposition 8 unconstitutional
Dwyer Arce on August 5, 2010 6:02 AM ET

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[JURIST] A judge for the US District Court for the Northern District of California [official website] on Wednesday ruled [opinion, PDF] that California's ban on same-sex marriage [JURIST news archive] violates the US Constitution [text]. Judge Vaughn Walker held that the ban, known as Proposition 8 [text; JURIST news archive], violated both the Due Process Clause and the Equal Protection Clause [Cornell LII backgrounders] of the Fourteenth Amendment. He also emphasized that the fact that the law was passed by referendum was "irrelevant, as 'fundamental rights may not be submitted to [a] vote[.]'" In finding that the ban on same-sex marriage violated due process, Walker held that same-sex marriage was required as part of the fundamental right to marriage affirmed by the Supreme Court in Loving v. Virginia [text]. He said that by impairing this fundamental right, the state must demonstrate that the law survives strict scrutiny by being narrowly tailored to serve a compelling state interest and that the state had failed to do this. Additionally, the court found that the state's domestic partnership scheme did not satisfy the plaintiffs' right to marriage because it was specifically created to exclude same-sex couples from the "culturally superior" institution of marriage. In addressing equal protection, the court found that discrimination based on sexual orientation should be subject to strict scrutiny, but it was unnecessary here because Proposition 8 failed to satisfy even rational basis review. Citing the Supreme Court case of Romer v. Evans [text], the court held that "moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a women is inherently better than a relationship between two men or two women, ... is not a proper basis on which to legislate." The court explained:
Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.
Following the decision, Walker stayed the ruling until Friday [order, PDF], when he will decide whether to stay the ruling pending appeal. The Alliance Defense Fund [advocacy website], a party defending the law, called the decision [press release] a "disappointing one" which "gut[s] the core of the American democratic system." The organization has stated that it will appeal the case to the Supreme Court if necessary.

In June, the court heard closing arguments in the case [JURIST report], Perry v. Schwarzenegger [case materials]. During closing arguments, the attorneys for the plaintiffs argued that the state ban on same-sex marriage was unconstitutional because it denied same-sex couples a fundamental constitutional right based solely on their sexual orientation. The attorneys argued: "[Marriage] is the right of individuals, not an indulgence dispensed by the State of California, or any state, to favored classes of citizens which could ... be withdrawn[.]" In the closing arguments in defense of Proposition 8, its proponents stressed the importance of the institution of marriage to society as a means to "responsible procreation," arguing that the suggestion that the ban was motivated by an animus toward homosexuals was a "slur on 7 million Californians who supported Proposition 8." Several jurisdictions in the US have legalized same-sex marriage, including the District of Columbia, Vermont, New Hampshire, Iowa, Connecticut, Massachusetts [JURIST reports] and the Coquille Indian Tribe [OregonLive report].

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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