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Member since: Sat May 15, 2010, 04:48 PM
Number of posts: 5,001

Journal Archives

The Compassion and Humanity of Judge Jones (PA Gay marriage decision - extended excerpt)

After reading the entirety of Judge Jones' decision striking down Pennsylvania's gay marriage ban, what really stood out for me was that, although the technical, legal and precedent aspects are all very solid and well worth reading, it was the depth of the Judge's understanding of, and compassion for, the plaintiffs who brought the suit, and of how their lives had been affected by the ban on gay marriage. So I've created a selective excerpt of his decision, intentionally omitting some of the more technical parts of the opinion, in order to demonstrate the depth of the judge's compassion and humanity that shines so clearly in the decision. I was particularly moved by his use of phrases from the traditional wedding vows as subheadings.

There is a particular school of thought with regard to jurisprudence―one that is especially popular among conservatives―which holds that values such as empathy and compassion, and consideration of real-world impact of laws upon the lives of those who must live under them, have no place in judicial rulings. But I would counter that true justice operates on two planes, an ethical plane and a legal/technical plane; and it is the ethical plane that informs the legal/technical plane, not the other way around. And values such as empathy and compassion are integral to any kind of ethical consideration. I think Judge Jones' ruling stands as a wonderful example of a jurist allowing his ethics to inform his technical legal scholarship. Would that we had more liike him.

Here is the excerpt. The case is Whitewood, et al. v. Wolf, Case No. 1:13-cv-186.


May 20, 2014

Today, certain citizens of the Commonwealth of Pennsylvania are not guaranteed the right to marry the person they love. Nor does Pennsylvania recognize the marriages of other couples who have wed elsewhere. Hoping to end this injustice, eleven courageous lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples have come together as plaintiffs and asked this Court to declare that all Pennsylvanians have the right to marry the person of their choice and consequently, that the Commonwealth's laws to the contrary are unconstitutional. We now join the twelve federal district courts across the country which, when confronted with these inequities in their own states, have concluded that all couples deserve equal dignity in the realm of civil marriage.

< . . . .>

B. The Plaintiffs

Plaintiffs are Deb and Susan Whitewood, and their teenage daughters, A.W. and K.W.; Maureen Hennessey; Lynn and Fredia Hurdle; Fernando Chang-Muy and Len Rieser; Julia Lobur and Marla Cattermole; Dawn Plummer and Diana Polson; Dara Raspberry and Helena Miller; Ron Gebhardtsbauer and Greg Wright;

Sandy Ferlanie and Christine Donato; Heather and Kath Poehler; Angela Gillem and Gail Lloyd; and Edwin Hill and David Palmer. Five of the couples are unmarried, seeking to wed in Pennsylvania, and six of the couples, as well as Maureen Hennessey, desire to have their valid, out-of-state marriages recognized by the Commonwealth.

As a group, they represent the great diversity of the Commonwealth of Pennsylvania. They hail from across the state, making their homes in Allegheny, Dauphin, Centre, Northampton, Delaware, Chester, and Philadelphia Counties. They come from all walks of life; they include a nurse, state employees, lawyers, doctors, an artist, a newspaper delivery person, a corporate executive, a dog trainer, university professors, and a stay-at-home parent. They have served our country in the Army and Navy. Plaintiffs' personal backgrounds reflect a richness and diversity: they are African-American, Caucasian, Latino, and Asian; they are Catholic, Baptist, Methodist, Jewish, Quaker, Buddhist, and secular. In terms of age, they range from a couple in their 30s with young children, to retirees in their 60s. Many of the couples have been together for decades.

As plainly reflected in the way they live their lives, the plaintiff couples are spouses in every sense, except that the laws of the Commonwealth prevent them from being recognized as such.

For better, for worse

The plaintiff couples have shared in life's joys. They have purchased homes together and blended their property and finances. They have started families, welcoming children through birth and adoption. Some of them have celebrated their commitment to each other through marriage in other states, sharing their wedding day with family and friends.

Yet, with each of these joys there has been concomitant hardship resulting from the Marriage Laws. In terms of property ownership, all of the couples face the payment of Pennsylvania's inheritance tax - including on half of the value of jointly-owned homes and bank accounts - at 15 percent, the highest rate.

For those couples who have had children, like Dawn Plummer and Diana Polson, the non-biological parent has had to apply for a second-parent adoption. Dawn expresses that she and Diana are presently saving money so that she can legally adopt their second son, J.P. Until the adoption is complete, she has no legal ties to J.P., despite that, together, she and Diana dreamed of welcoming him to their family, prepared for his birth, and functioned as a married couple long before having him. Christine Donato, who together with Sandy Ferlanie completed a second-parent adoption in similar circumstances, describes the process as "long, expensive, and humiliating." The couples choosing to adopt, like Fernando Chang-Muy and Len Rieser, had to undergo a two-step process, incurring double the costs, in which one became their child's legal parent and, later, the other petitioned for a second-parent adoption. For the children of these couples, it can be difficult to understand why their parents are not married or recognized as married. In the words of Deb Whitewood, "It sends the message to our children that their family is less deserving of respect and support than other families. That's a hurtful message."

In addition, for the couples who have chosen to marry out-of-state, they are acutely sensitive that their marital status changes when they cross state lines. Edwin Hill describes driving home to Pennsylvania after wedding David Palmer in Maine in 2013, elated to be traveling through all of the northeastern states that recognize their marriage. "And then we crossed the Delaware River into Pennsylvania," he recalls, "and we looked at each other and said, 'We're not married anymore.' And that hurt." Further, the married couples must still identify themselves as single in Pennsylvania, for example, on their state income taxes. Many have remarked on the pain this causes them, describing that it feels "terrible," "wrong," and "like a denial of relationship" to tick the box marked "single."

For richer, for poorer

The plaintiff couples share their resources and support each other financially. But Plaintiffs commonly echo a sense of legal and economic vulnerability because of Pennsylvania's Marriage Laws. Many of them have paid lawyers to draft protective documents, like wills and powers of attorney, in efforts to emulate some of the protections afforded to couples recognized as married. Susan Whitewood estimates that her family has spent over $10,000 in legal fees for the preparation and maintenance of such documents, which would not have been necessary if the Commonwealth acknowledged their marriage.

Angela Gillem and Gail Lloyd describe feeling particularly insecure. Angela is a clinical psychologist and the primary bread-winner, while Gail is an artist who does not draw a steady paycheck or contribute to Social Security. Angela expresses that she has "taken every step can to ensure financial security" but that they still cannot duplicate all of the protections married couples receive, and she "live every day with the fear that the steps taken will not be enough to protect Gail if something should happen to ."

In sickness and in health

The plaintiff couples have supported each other through illness and medical emergencies. Yet, because Pennsylvania considers them legal strangers, they may be left vulnerable in times of crisis. Various of the plaintiffs express anxiety at the possibility that they would not be allowed to comfort or gain information about their partner's condition in the event of an emergency, despite the fact that they have prepared powers of attorney. Lynn Hurdle remembers feelings of fear and helplessness when her partner, Fredia, was admitted to the hospital for unexpected surgery. Doctors began operating earlier than planned, and when Lynn discovered Fredia's hospital room to be empty, staff would not tell her why Fredia had been taken early or where she was.

Until death do us part

The plaintiff couples demonstrate an intention to live out their lives together. Plaintiff Maureen Hennessey and her partner of 29 years, Mary Beth McIntyre, present a powerful example. When Mary Beth was diagnosed with inoperable Stage 4 lung cancer, Maureen left her job to care for her and to help run Mary Beth's business until her death. Towards the end of her life, Mary Beth required Maureen's help to get out of bed and to the bathroom, and to assist in self-care and administer medications. They were married in Massachusetts after Mary Beth fell ill, but because Pennsylvania does not recognize their marriage, the line for "surviving spouse" was left blank and Mary Beth was identified as "never married" on her death certificate. Maureen was listed as the "informant."

Wishing to have their relationships recognized for what they are in the state they call home, and by doing so to transcend the pain, uncertainty, and injustice visited by the Marriage Laws, Plaintiffs brought this suit.

< . . . . >

The issue we resolve today is a divisive one. Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition constitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection. Were that not so, ours would still be a racially segregated nation according to the now rightfully discarded doctrine of "separate but equal." See Brown v. Board of Education, 347 U.S. 483 (1954), overruling Plessy v. Ferguson, 163 U.S. 537 (1896). In the sixty years since Brown was decided, "separate" has thankfully faded into history, and only "equal" remains. Similarly, in future generations the label same-sex marriage will be abandoned, to be replaced simply by marriage.

We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.
Posted by markpkessinger | Wed May 21, 2014, 03:23 PM (5 replies)

From Federal District Judge John E. Jones III's decision overturning PA's marriage ban

I highly recommend taking the time to read Federal Judge John E. Jones III's decision striking down Pennsylvania's gay marriage ban. The Judge very carefully dismantles every one of the Commonwealth's arguments defending the ban. (A link to the full decision is provided below.) Then the Judge concludes with the following two, very eloquent paragraphs:

The issue we resolve today is a divisive one. Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition constitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection. Were that not so, ours would still be a racially segregated nation according to the now rightfully discarded doctrine of "separate but equal." See Brown v. Board of Education, 347 U.S. 483 (1954), overruling Plessy v. Ferguson, 163 U.S. 537 (1896). In the sixty years since Brown was decided, "separate" has thankfully faded into history, and only "equal" remains. Similarly, in future generations the label same-sex marriage will be abandoned, to be replaced simply by marriage.

We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.

Bravo, your Honor, bravo!

Posted by markpkessinger | Wed May 21, 2014, 01:35 AM (2 replies)

NY Post: The 9/11 museumís absurd gift shop

(Note: I had no idea the 9-11 Museum at Ground Zero would include, of all things, a damned GIFT SHOP! It's hawking mostly NYPD-, Port Authorit6y Police- and NYFD-branded trinkets and items of clothing, or items bearing the kind of cheap consolation of the greeting card industry. It is fitting that a 9-11 Memorial Museum exist at Ground Zero. But if it is fitting to have a memorial and/or museum to commemorate a national tragedy that had enormous impact upon the country as a whole, then it is equally fitting that federal revenues should be used to operate it and sustain it to the extent admissions fees fail to cover expenses. This is just in outrageously offensive bad taste! And if even the New York Post is offended by it, that should really tell you something!)

The 9/11 museumís absurd gift shop
By Susan Edelman May 18, 2014 | 4:54am

< . . . . >

The 9/11 museumís cavernous boutique offers a vast array of souvenir goods. For example: FDNY, NYPD and Port Authority Police T-shirts ($22) and caps ($19.95); earrings molded from leaves and blossoms of downtown trees ($20 to $68); cop and firefighter charms by Pandora and other jewelers ($65); ďUnited We StandĒ blankets.

There are bracelets, bowls, buttons, mugs, mousepads, magnets, key chains, flags, pins, stuffed animals, toy firetrucks, cellphone cases, tote bags, books and DVDs.
Modal Trigger

You can pick up an assortment of oak leaf jewelry at the 9/11 museum gift shop.Photo: Sue Edelman

Even FDNY vests for dogs come in all sizes.

After paying $24 admission for adults, $18 for seniors and students, and $15 for kids 7 to 17, visitors can shop till they drop.

< . . . . >
Posted by markpkessinger | Sun May 18, 2014, 11:39 PM (15 replies)

Uh, oh! I think I know what happened to those 30 million people 'missing' from Op. Am. Spring . . .

Clearly, there is only one possible answer to why 30 million people mysteriously failed to show up at "Operation American Spring." Think about it, there's only one possible explanation:

Clearly, what obviously happened is that those 30 million folks were raptured, and all the rest of us have been consigned the fate of 'Left Behinds.' (Calling Tim LeHaye . . . )

If you happen to know any of these 'Left Behind' Tea Party types, you should probably be very careful in how, exactly, you break the news to them that they didn't make the cut. Just my advice . . .

Posted by markpkessinger | Sat May 17, 2014, 11:29 PM (32 replies)

About young Mr. Fortgang (the Pirnceton "privelege" kid) . . .

Blogger Ari Kohen has written a an excellent installment on this topic. But wherever you stand on the substantive question of White privilege, before you jump to defend young Mr. Fortgang, who told the NY Times he didn't "have a racist bone in (his) body," you might want to take a look at some of his past tweets. Fortgang has deleted his Twitter account, but he wasn't quick enough on the draw for blogger Matt Binder, who made screen captures of them:

Posted by markpkessinger | Sun May 11, 2014, 06:36 PM (16 replies)

The NY Times' Adam Liptak: False Equivalence Monger

On edit: I originally stated that my comment had not yet been published. It now has been published, so the text below is edited accordingly.

There is a column by Adam Liptak in today's Times, titled, "The Polarized Court" (excerpt appears at the end of my comments below). Liptak blathers on about the 'polarization' of the Supreme Court and points out that it reflects a similar polarization in the electorate. Yet, to read the article, one would think that the two parties had moved in opposite directions, when in fact both moved in the same direction: one party by a radically large degree, the other by s smaller degree. But there is NO discussion of the fact that to the extent polarization has occurred, it has occurred as a result of the GOP shifting radically rightward. To the extent Democrats have moved, it has also been (sadly enough), to the right also. Here is the text of a comment I just posted to the piece.

Mark P. Kessinger
I wonder if perhaps Mr. Liptak has been spending a bit too much time inside the Beltway of late, for he seems to have succumbed to a certain malady that affects many pundits and journalists who spend too much time there: False Equivalence Syndrome. To speak of our politics as merely being "polarized," without mention of the very significant rightward shift of our entire political spectrum over the last 33 years is to miss what has really been going on, and suggests, incorrectly, that the two parties have moved in opposite directions.

What has happened, though, is that the Republican Party, beginning with the election of Ronald Reagan in 1980 and continuing to the present day, has moved radically to the right, abandoning a middle ground on many issues on which there had previously been, if not full agreement on how to address issues, at least a broad consensus on what the issues were and the importance of addressing them -- things such as public education, a robust social safety net, and at least nominal support for organized labor. The broad center, comprised of Democrats and Republicans alike, did not demonize government. But Reagan, with his "Government is the problem" mantra, changed that. That was the point of departure.

Sadly, Democrats moved to the right as well. So it is hardly adequate to speak of 'polarization' when one party has moved radically to the right, and the other closer to the center.

Here is an excerpt from the article:

The Polarized Court

MAY 10, 2014

WASHINGTON ó WHEN the Supreme Court issued its latest campaign finance decision last month, the justices lined up in a familiar way. The five appointed by Republican presidents voted for the Republican National Committee, which was a plaintiff. The four appointed by Democrats dissented.

That 5-to-4 split along partisan lines was by contemporary standards unremarkable. But by historical standards it was extraordinary. For the first time, the Supreme Court is closely divided along party lines.

The partisan polarization on the court reflects similarly deep divisions in Congress, the electorate and the elite circles in which the justices move.

The deep and often angry divisions among the justices are but a distilled version of the way American intellectuals ó at think tanks and universities, in opinion journals and among the theorists and practitioners of law and politics ó have separated into two groups with vanishingly little overlap or interaction. It is a recipe for dysfunction.

< . . . .>

Posted by markpkessinger | Sun May 11, 2014, 01:34 PM (4 replies)

"Ain't it a pretty night . . ."

My brother-in-law snapped this photo of the night sky over my hometown of Beech Creek, PA. It brought to mind immediatly an aria, titled, "Ain't it a Pretty Night," from the opera, "Susannah," by American composer Carlisle Floyd. Here are the lyrics, and elow them is a link to a recording of the aria sung by soprano Mary Mills, from a production by the Philadelphia Opera:

Ain't it a pretty night!
The sky's so dark an' velvet-like, and it's all lit up with stars.
It's like a great big mirror reflectin' fireflies over a pond.
Look at all them stars, Little Bat! The longer y'look, the more y'see.
The sky seems so heavy with stars that it might fall right out of heaven
an' cover us all up in one big blanket of velvet all stitched with diamon's.

Ain't it a pretty night!
Just think, those stars can all peep down an' see way beyond where we can:
they can see way beyond them mountains
to Nashville an' Ashville an' Knoxville.
I wonder what it's like out there, out there beyond them mountains,
where the folks talk nice, an' the folks dress nice,
like y'see in the mail order catalogs.
I aim to leave this valley some day an' find out fer myself:
to see all the tall buildin's and all the street lights
an' be one o' them folks myself.

I wonder if I'd get lonesome fer the valley, though,
fer the sound of crickets an' the smell of pine straw,
fer soft little rabbits an' bloomin' things
an' the mountains turnin' gold in the fall.
But I could always come back if I got homesick for the valley.
So I'll leave it someday an' see fer myself.
Someday I'll leave an' then I'll come back
when I've seen what's beyond them mountains.

Ain't it a pretty night!
The sky's so heavy with stars tonight
that it could fall right down out of heaven
an' cover us up, an' cover us up
in one big blanket of velvet and diamon's.

Posted by markpkessinger | Sat Apr 26, 2014, 04:49 PM (0 replies)

The Teabonics Hall Of Fame ó 60 Iconic Misspelled Protest Signs (PHOTOS)

The Teabonics Hall Of Fame ó 60 Iconic Misspelled Protest Signs (PHOTOS)

By Tiffany Willis on April 15, 2014

One of the biggest fails of the Tea Party movement has been their epic misspellings on protest signs. We arenít sure whatís up with that. Are their kids making the signs for them? Are they writing them in haste and canít take the time to spell correctly or use correct grammar? Either way, itís hilarious. Here is the Tea Party Protest Sign Hall of Fame.

< . . . . >

< . . . . >

Posted by markpkessinger | Tue Apr 15, 2014, 11:29 AM (18 replies)

So the President is allowing the CIA to take the lead in declassifying the Senate Report . . .

. . . what could possibly go wrong?
Posted by markpkessinger | Tue Apr 8, 2014, 07:50 PM (5 replies)

My response to one NY Times reader regarding the Supreme Court . . .

In the comments to an editorial in today's New York Times titled, "The Court Follows the Money," one reader wrote:

< . . . . >

If reform is impossible, then a revolution is needed. What kind of revolution? How to proceed? Many paths are possible, none are easy. Let me suggest two places we might start.

First, stop voting. At the least, never again vote for the lesser of two evils. Again, if the system is irredeemable, then the sooner it fully breaks, the better off we will be in the long term. Working for the election of Democrats leads to nothing but heartbreak. That energy is better spent elsewhere. The more the tea-party and like minded elements succeed, the quicker the collapse of the system will arrive. Scarry? You bet.

< . . . . >

I couldn't let that one stand. Here was my response (which has not yet posted to the site):

Terence Stoeckert advises: "First, stop voting. At the least, never again vote for the lesser of two evils."

If we stop voting, we play into the oligarchs' hands -- so that suggestion is possibly the worst advice one could possibly give.

As for voting for the "lesser of two evils" ("LTE"), while LTE voting my well be worthy of criticism, I would remind you that this ruling did NOT come about as a result of voters choosing between the lesser of two evils. All five of the justices who voted to overturn the aggregate contribution limits in McCutcheon were nominated by presidents of ONE of the two parties: the GOP, and ALL FOUR who dissented were nominated by Democratic Presidents. Similarly, in Citizens United, the SAME FIVE JUSTICES were in the majority, three of the dissenters were nominated by Democrats and one, Justice Stevens, was a liberal Republican nominated by Gerald Ford.

Whatever criticism one may have of Presidents Clinton and Obama, it was the Justices they nominated who did NOT stand with the majority in this case. And it was the Justices nominated by Reagan, Bush I and Bush II that WERE the majority. But that probably doesn't sit well with your "both aprties are the same" narrative, does it?

Posted by markpkessinger | Thu Apr 3, 2014, 08:45 AM (68 replies)
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