Leonard Link

Off to San Diego for AALS

I will be traveling on Tuesday to San Diego to attend the annual meeting of the Association of American Law Schools, returning on the overnight flight on Sunday.  Although I'll be taking my laptop and an aircard, I won't have much time for posting things, so this blog may go a bit quiet this week.

I did want to say that I thought President-Elect Obama's decision to select Elena Kagan as Solicitor General was brilliant.  She's just the one to restore that office to the kind of stature it used to have before excessive politics undermined its credibility.  This is a big loss for Harvard Law School, but she's done the things that had to be done to revive the place and set it on a good course, and the selection of a good successor is in competent hands.

New York Philharmonic: Szymanowski Symphonie Concertante

This concert was not on my regularly subscription series.  I got a single ticket out of eagerness to hear, at last, a real live performance of Karol Szymanowski's Symphonie Concertante.  I've had a special interest in Szymanowski ever since I read Artur Rubinstein's memoirs.  Rubinstein was a good friend of the composer, and related the story of Szymanowski's "coming out" as a gay man after years of despondency about his sexuality.  Unfortunately, he did not have long to live after that, as tuberculosis carried him off at 55 in 1937.  The Symphonie Concertante is "late" Szymanowski, composed in 1932 as a concert vehicle for the composer, who was a notable pianist.  But he did not intend to write a full-blown concerto, rather a symphonic work in the which the solo piano had a substantial role.  In the end, the piece turned out neither fish nor fowl.  There is too much for the pianist to do of a virtuosic nature for it to be considered a symphony with obbligato piano, and yet too little that is really flashy to attract the virtuosi who make a career of playing piano concerti with orchestra.  And Szymanowski's music has not travelled well outside eastern Europe, so we don't get to hear much of it.  Quite an opportunity, then, not fully realized on this occasion.

But my heart sank as Emanuel Ax walked on the stage with the piano score under his arm.  This could mean that the performances with the Philharmonic were a "one off," somebody asked him to learn the piece to play it in these concerts.  Or, even if not, that this was a piece that Ax had not internalized to the degree of really knowing it intimately, so what kind of performance could we expect?  I found the performance to be underpowered, undercharacterized.  Not that this is some great masterpiece, but I have accumulated many recordings of it in my collection and most are more exciting that what I heard last night, although the Philharmonic is far and away the best orchestra I've heard compared to the recordings.  For now I'll have to remain content with the recorded work of Andsnes or Rubinstein or Blumental in this piece and hope that another chance to hear it live with a pianist who has "lived in" to the piece more...  It's not that there was anything actively wrong with the performance, just that there was not the kind of really dedicated advocacy from piano and podium that this piece needs to succeed fully with an audience.

Ax also performed the Richard Strauss Burleske for Piano and Orchestra, a work that he had by heart and clearly feels great affection for, which was communicated well in this performance.  Maazel and the orchestra were with him every step of the way.

The concert began with another unfolding chapter in the Philharmonic's somewhat misguided saga to present the six J.S. Bach Brandenburg Concerti this season.  OK, you have a harpsichord on stage, but I could barely hear it in the outer movements, where a small orchestral string body of modern instruments pretty much made the harpsichord superfluous and inaudible.  The soloists were all fine, if not Baroque stylists, and of course the solo trumpet of Philip Smith was technically superb, as expected, although oboe soloist Liang Wang made the most impression on me with his wonderfully singing tone.  It was touching to see Smith's younger trumpet section colleagues sitting up in the orchestra's box on the second tier to watch their leader do his thing.  They seemed fully absorbed. Sheryl Staples was the fine violin soloist.  Robert Langevin's flute was excellent when audible, but the flute was a bit outbalanced at times by the oboe and/or trumpet in the outer movements.  I was startled when Maazel conducted the second movement.  Unlike the outer fast movements, which require the participation of the orchestra, the central slower movement is chamber music, three of the soloists (the trumpeter stands silently) playing a delicate number with basso continuo of cello and harpsichord.  There is no need for conducting this; the conductor just gets in the way and the players should be interacting and moving forward spontaneously as chamber musicians.  This performance felt terribly stilted, too heavily anchored to the bar lines.  I frequently feel when hearing this movement that something is missing, as if we are being presented with an elegant accompaniment to a missing them...  As I said at the outset, the idea of presenting the Brandenburgs in this format is a bit misguided.  It would make more sense to do the Orchestral Suites using this orchestra...

Finally, after intermission, we had Ravel's orchestration of Mussorgsky's piano suite, Pictures at an Exhibition.  This was in most ways the most superbly played piece of the evening.  With Smith having the rest of the concert off after his stratospheric doings in the Bach, the Philharmonic's talented young Associate Principal Trumpeter Matthew Muckey got to show off his chops and scored a big success in a piece that provides numerous opportunities for the solo trumpet to shine.  But then almost all the Philharmonic soloists shown in this piece, not least the mystery soloist, playing Alto Saxophone in "The Old Castle" movement with great flare, but utterly nameless in the program book.  He should sue...  The one soloist who had difficulties last night was principal Hornist Philip Myers, whose big solo in the second Promenade sounded kind of wobbly, and who managed to actually enounter that rare problem of a note not sounding at a crucial moment.  It happens with the horn, sometimes, but you don't expect to hear it at an exposed moment in a Philharmonic concert.  Myers is one of my heroes in this orchestra, so it was painful to hear.  I'm sure he'll have lots of opportunities to redeem himself in the weeks ahead.

My one beef about this performance of Pictures was the way that Lorin Maazel indulged his tendency towards excessive interventionism.  This was most evident in the Great Gate at Kiev, the grand finale.  The score indicates a few brief pauses to mark major changeds in character of the music, alternating the pompous Great Gate music with a solemn Russian Orthodox chorale, but Maazel turned some of them into huge grand pauses breaking up the flow of the music and overemphasizing the monumentalism.  This reached its most gross lapse of taste in the final bars, dreadfully stretched out and rendered quite ugly -- in a manner Ravel, a man of great refinement, would not have wanted -- with a loud, clangorous bell overwhelming the orchestral texture.  These moments aside, though, it was a rare pleasure to hear such a sumptuous rendition of Ravel's orchestration, which revealed so many interesting instrumental combinations and inventive touches in the hands of the Philharmonic virtuosi.

So, a very mixed verdict on this concert.  I'm glad to have heard the Szymanowski live, but hope nobody present formed a firm opinion about the piece based on this performance.  And I'm delighted to have heard this rendition of Pictures for its sound and virtuosity, even though I found some of the conductor's shenanigans detracting a bit from my enjoyment.

Westchester Marriage Recognition Order Upheld by Judicial Sleight-of-Hand

A unanimous four-judge panel of the New York Appellate Division for the 2^nd Department issued a brief decision on December 30, rejecting a challenge to the same-sex marriage recognition order that Westchester County Executive Andrew J. Spano issued on June 6, 2006. The panel managed, through judicial sleight-of-hand, to affirm a trial judge’s dismissal of the case without taking any position on whether New York law requires recognition of same-sex marriages.  Godfrey v. Spano, 2008 N.Y. Slip Op. 10584, 2008 Westlaw 5413641.

In his Executive Order No. 3 of 2006, Spano directed all the departments, boards, agencies and commissions of government in Westchester County "to recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law." The plaintiffs, taxpayers provided counsel by Alliance Defense Fund, argued that the order was illegal and beyond the powers of the County Executive. Lambda Legal intervened in the case on behalf of spouses Michael Sabatino and Robert Voorheis, who had been married out of state and reside in Westchester County, and thus stood to benefit from the Order and to suffer harm if it was overturned.

On April 16, 2007, Westchester County Supreme Court Justice Joan B. Lefkowitz rejected the challenge to the Executive Order, in a detailed, substantive opinion concluding that New York marriage recognition principles supported the recognition of lawfully contracted out-of-state same sex marriages, because the recognized grounds for refusing such recognition did not exist. See 836 N.Y.S.2d 813. Justice Lefkowitz’s analysis was later vindicated when an appellate panel in Western New York endorsed the same reasoning early in 2008 in Martinez v. Monroe Community College, 50 App.Div.3d 189 (4th Dept. 2008), a case involving the college’s refusal to recognize the Canadian same-sex marriage of one of its employees. Monroe County’s premature attempt to appeal that ruling was rejected by the Court of Appeals.

The Westchester County plaintiffs appealed the dismissal of their case, raising the same arguments, this time in the face of mounting authority from cases around the state endorsing marriage recognition.

The 2^nd Department decision issued on December 30 ducks the analytical issue by focusing on the last seven words of Spano’s Executive Order: "to the maximum extent allowed by law." The panel reasoned that Spano’s Order could not be illegal because the Order, "by its terms," "can never require recognition of such a marriage where it would be outside the law to do so." Because the County Executive’s job is to "see that the laws of the state, pertaining to the affairs and government of the county, are executed and enforced within the County," it was clearly legal for him to order all units of county government to recognize same sex marriages "to the maximum extent allowed by law."

In other words, the panel treated Spano’s opinion as if it was agnostic on the question whether New York law requires recognition of such marriages, and was merely exhorting the agencies under his control to do their duty and apply the law. According to this reading, the only substantive position Spano was taking was that same-sex marriages should be treated the same as different-sex marriages to the maximum extent possible under existing law.

Having rested its ruling on this sleight of hand, the panel refrained from delving into the details of New York marriage recognition law, merely asserting that an Order by the County Executive that agencies comply with the law was clearly legal. This, of course, disingenuously speaks as if Spano had broken no new ground, while in fact his clear intent was to adopt a particular, possibly controversial, point of view as to what the law is. But no damage is really done, since the panel’s avoidance of the substantive issue means that the law remains what it was, as articulated by the 4^th Department in the Martinez case. This decision does not create a split between the appellate divisions, so Martinez remains a statewide precedent for now.

The panel also held, without any real explanation and contrary to Justice Lefkowitz, that the plaintiffs had no standing to invoke the Municipal Home Rule Law to argue that the Order was beyond Spano’s power to issue, because they had not shown "some personal interest in the dispute beyond that of any taxpayer." Totally lacking an analysis, the panel just asserted: "They have not done so."

Consequently, the panel affirmed Justice Lefkowitz’s order dismissing the case, without itself appearing to take any substantive position on the underlying legal question of marriage recognition!

ACLU Challenges Arkansas Foster/Adoption Statute

The Arkansas Civil Liberties Union and the ACLU LGBT Rights Project have filed suit in state court challenging the federal and state constitutionality of Act 1, a measure enacted by referendum on November 4 and slated to go into effect January 1, 2009, which prospectively bans foster or adoptive placements with unmarried adult cohabitants, regardless of gender.

The complaint filed on December 30 in Cole v. State of Arkansas was brought on behalf of a varied group of unmarried couples and parents.  The heart of the complaint is really the section describing the plaintiffs and their interest in the case.  This makes clear that Act 1 impermissibly interferes with family autonomy in drastic ways.  For example, it disqualifies a woman from seeking to adopt her battered granddaughter, even though the state has removed the child from the custody of its parents, because grandma is cohabiting with another woman.  It prohibits parents from effectively designating relatives to take over as adoptive parents in case anything happens to the parents if those relatives are living in unmarried cohabitation relationships. 

The genesis of Act 1 was right-wing unhappiness with a 2006 Arkansas Supreme Court decision that had struck down a regulation disqualifying gay people from being foster parents.  In that case, the Court said that the regulation exceeded the child welfare agency's powers because it undermined rather than advanced the statutory policy of requiring that foster placement decisions be made in the best interest of children needing foster care.  The Court was convinced by the trial record in that case that the regulation actually retarded that interest and thus contradicted the statutory policy, because there was no factual basis for disqualifying all gay people as a class from serving as foster parents. 

The malcontents who were upset with this ruling then tried to get state officials to adopt a new regulation disqualifying all unmarried cohabitants, but the regulation was withdrawn after a hearing required by the state's administrative procedure act produced a hearing record that could not plausibly support the regulation if it were challenged in court --- since child welfare professionals in Arkansas were uniformly opposed to it as counter to the best interests of children.  So the malcontents decided to put before the voters a deceptively innocent-sounding statutory initiative to change the state's policy, and they succeeded, to virtually uniform condemnation from the press. 

The lawsuit proceeds on due process and equal protection grounds, as well as making a technical challenge that may itself save the day: the referendum was actually a sneak repeal of a provision in the state's foster care law that prohibits discrimination based on marital status in foster care proceedings, or so the complaint argues.  It seems that the Arkansas constitution requires that any referendum that would repeal an existing statute has to communicate that fact to the voters, but the Act 1 proponents never breathed a word about this in their ballot materials or their propaganda in support of the measure.

This last argument would give the courts an "out" if they wanted to throw out this crazy measure without having to opine very much on the merits of the due process or equal protection claims.  On the other hand, the Arkansas Supreme Court's 2006 decision shows that this is a court that is not shy about taking on irrational family law measures adopted from homophobic motives that make no sense in terms of their impact on children and families.  This lawsuit should have a good chance of succeeding.  The first test will be whether the trial court will enjoin the operation of Act 1 pending a final ruling on the merits, which would require a finding that the case has a good chance of success and that allowing Act 1 to go into effect could cause irreparable injury to the plaintiffs.  In light of the factual recitation in the complaint, these requirements should not be difficult to meet.

NJ Civil Rights Division Finds Probable Cause in Ocean Grove Civil Unions Dispute

J. Frank Vespa-Papaleo, Director of the New Jersey Division of Civil Rights, issued a "Finding of Probable Cause" on December 29, concluding the Division’s investigation of a public accommodations discrimination complaint filed by Harriet Bernstein and Luisa Paster against the Ocean Grove Camp Meeting Association, which had refused to allow them to rent the Boardwalk Pavilion in Ocean Gove for their civil union ceremony. The probable cause finding terminates the investigative part of the case, signaling that the matter is appropriate for a public hearing, the next stage of the administrative process in enforcement of the New Jersey Law Against Discrimination.

In addition to banning sexual orientation and gender identity discrimination, the New Jersey Law also specifically forbids discrimination against civil union couples by entities that provide goods and services to the public. The investigation showed that until this controversy arose, the Ocean Grove Camp Meeting Association, which owns all the land in the town of Ocean Grove, had allowed couples to rent the Boardwalk Pavilion for their wedding ceremonies, without regard for religious affiliation or even the religious nature of the ceremony being planned. Within days of the Bernstein-Paster application, the Association adopted a defense posture of discontinuing its policy of renting the pavilion for wedding ceremonies, although some ceremonies that had previously been booked were still held.

A few days after the Bernstein-Paster application was rejected, another couple, Janice Moore and Emily Sonnessa, also applied to hold their civil union ceremony at the pavilion. They were told that the pavilion was no longer available for private ceremonies, and filed their own discrimination complaint. Along with the Dec. 29 probable cause finding in the Bernstein-Paster case, the Division issued a "no probable cause" finding in the Moore-Sonnessa case, on the conclusion that since the pavilion is no longer being rented for any wedding ceremonies, there is no discrimination in refusing to rent it for a civil union ceremony.

Responding to the Bernstein-Paster complaint, the Association, a non-profit "ministry organization" that describes itself as "rooted in Methodist heritage," argued that as a religious association its property should be exempt from the requirements of the Law Against Discrimination, and that failing to exempt it would violate its First Amendment rights of freedom of association and free exercise of religion.

Director Vespa-Papaleo rejected both of these contentions. Significantly, the Association had enjoyed a special real property tax exemption for the pavilion that is provided by the state for properties that are open to the public as places of public accommodation. As part of that exemption process, the Association had certified that when the pavilion was not being used for the Association’s own religiously- based programs, it would be open to the public on "an equal basis," which explains the practice of not inquiring into the religious nature of wedding ceremonies that were held in the pavilion.

This same certification and established practice of inviting the general public to use the pavilion was found by the Division to support the conclusion that it was a place of public accommodation, and it is well established that religious ownership of a place of public accommodation does not exempt the place from the anti-discrimination law.

The more significant question was whether the decision could be squared with the First Amendment precedents created by the U.S. Supreme Court in two gay-related cases, Hurley and Dale. In Hurley, the court held that First Amendment rights of the organizers of a St. Patrick’s Day parade in Boston must prevail over the non-discrimination rights of a gay Irish group that wanted to march with its own banner in the parade. In Dale, the court held that New Jersey’s interest in eradicating anti-gay discrimination had to bow to the expressive association rights of the Boy Scouts of America, which was privileged to deny a troop leadership position to an openly gay man.

In both of these cases, the crux of the case was the right of the organization to control the nature and content of its message. The Court found that a parade is a quintessentially expressive exercise, and the organizers have a right to decide whether inclusion of a particular group would dilute or contradict their message. The Court relied on the parade case in its ruling in the Boy Scouts case, finding that the Scouts was an expressive association, formed to inculcate certain values, and that requiring it to refrain from sexual orientation discrimination would improperly intrude on its own control of its message.

The Division found these precedents distinguishable from the Ocean Grove case, finding that the pavilion’s non-religious uses were not intended to send any particular message, and that the Association had voluntarily characterized itself as a public accommodation open to all without discrimination when it sought the property tax exemption. "The Boardwalk Pavilion is not primarily used to convey a message," wrote Vespa-Papaleo. "As described above, the Pavilion is put to a variety of uses, and they are not bound by the underlying conveyance of a united message. All members of the public are invited to travel through the pavilion, whether to rest, eat ice cream, engage in private conversation, or to pray." He also found that holding a civil union ceremony with invited guests "itself conveys no message and is not expressive association."

As to the free exercise of religion argument, Vespa-Papaleo noted that although the Association did conduct some religiously-connected activities in the pavilion, "that was not its exclusive purpose," and this it was "not a religious facility. As such, when it invites the public at large to use it, the Association is subject to the Law Against Discrimination, and enforcement of that law in this context does not affect the Association’s constitutionally protected right to free exercise of speech." He also concluded that "any incidental burden on a particular religious belief or practice does not raise free exercise concerns," and that "the State’s interest in protecting people from discrimination based on civil union status would justify the minimal impact of the LAD on Respondent."

In a symbolic sense, the Bernstein-Paster ruling is a preliminary victory. However, the simultaneous ruling on the Moore-Sonnessa complaint suggests that it may be no more than a symbolic victory for anybody other than the individual complainants. If they prevail before an administrative judge and, if need be, a reviewing court, Bernstein and Paster may win some damages for the violation of their civil rights. But the decision by the Association to get out of the wedding rental business entirely led the Division to conclude in the Moore-Sonnessa case that there was no longer actionable discrimination as between weddings and civil unions, and thus no role for the Law Against Discrimination. Which means the final outcome of the case, even if the Division prevails before an administrative judge and subsequently in court, will not be an order to open up the pavilion for civil union ceremonies. Of course, the Association could conclude that it must allow civil union ceremonies in the pavilion if it wants to resume booking weddings there. Since it lost its real estate tax exemption over this issue, it may end up bowing to reality in order to begin earning rental income and to regain its favored tax status.