Wednesday, November 30, 2005

Hundreds sound off on gay marriage - AP

I testified at the hearing yesterday described below. Other attorneys covered the constitutional issue effectively, so I focused on the effects on Wisconsin business.

Here is a summary of my remarks:

An amendment that prevents these businesses from deciding what benefits they choose to offer (which would be prohibited by the second sentence of the proposed amendment), would discourage businesses from relocating to Wisconsin. It would also prohibit current businesses from being able to offer the benefits that they choose; disenfranchising current employees.

Attracting young talent to Wisconsin will be more difficult in the face of a marriage discrimination amendment. Wisconsin is known for its excellent public universities (I am a proud product of Madison's law school), but we have suffered from significant "brain drain" here in Wisconsin with 52,000 college graduates leaving the State in the 1990's. A same sex marriage ban would advance the significant loss of young professional talent in Wisconsin because most people under 34 support marriage or civil unions for gay couples. Richard Florida, a Carnegie Mellon professor, economic development expertand pioneer of the young professional movement, researched this issue and found that geographic areas that demonstrate diversity and tolerance of gay people are more likely to attract high-tech industries and employees to support those industries.

In summary, I will be a future business owner in Wisconsin. I do not want the Legislature to move forward on an amendment which, if passed, will prevent me from offering the benefits that I choose for my employees. Also, I, like most small business people, are able to be more financially viable if the community around me is doing better financially, so I am deeply concerned by a proposal that will tell business that Wisconsin shuts its door to progressive benefits and homosexual employees.

It is no secret why the same sex marriage amendment is being put on the ballot to coincide with the election for Governor. The Republican Legislature hopes to bring out voters on this issue to encourage support for their candidate. I vote based on the candidate and have never joined a party, nor voted the party line in an election. I can tell you that playing politics with the lives of Wisconsin families and with Wisconsin business interests is ugly politics and something that is offensive to me. Such action does not encourage me to weigh a Republican candidate for governor on his or her merits; I would be inclined to dismiss such a candidate out of hand. I expect as knowledge of this political scheme moves forward in the next twelve months that many moderate voters will share my perspective.

Associated Press Writer

MADISON, Wis. (AP) -- Ray Vahey and Richard Taylor have been in love for almost 50 years. They share meals, an apartment, a car. What they can't share are taxes, dental insurance or Social Security benefits.

"We have yearned for a marriage recognized in America," Vahey said.

Rebekah Gantner, a home-schooled 19-year-old from Watertown, never wants to see that happen. In her book, being gay is a sin and letting homosexuals marry would tear apart society.

"If marriage became just for anyone, our society and the next generations to come aren't what it should be or what it used to be," she said.


Republican lawmakers are right with her. They're pushing an amendment to the Wisconsin Constitution that would ban gays like Vahey and Taylor from ever getting married.

Current state law defines marriage as a union between a man and wife, but the GOP fears judges could interpret that wording to mean gays can marry, too.

The gay community and activist groups say the amendment amounts to thinly veiled discrimination and could strip away employment benefits for same-sex couples.

Some 300 people, including Vahey, Taylor and Gantner, jammed a public hearing before the Senate and Assembly judiciary committees Tuesday to sound off on the idea. So many people showed up legislative pages had to herd them into two overflow rooms.

The scene was a virtual replay of a similar public hearing last year. The amendment must pass two consecutive legislative sessions and a statewide referendum.

The GOP-controlled Legislature easily passed the ban last year. The hearing Tuesday marked the first step toward passage this session.

Neither committee was expected to vote on the amendment Tuesday, but passage through the full Legislature is all but inevitable given that Republicans backing the measure control both the Assembly and the Senate. Democratic Gov. Jim Doyle plays no role in adopting a constitutional amendment.

That means voters could see the question on the ballot in November 2006.

Nineteen other states have approved similar constitutional bans to gay marriage. Wisconsin's version defines marriage as between one man and one woman and bans any legal status "substantially similar" to marriage for people who aren't married. The amendment doesn't define such a status.

Rep. Fred Kessler, D-Milwaukee, questioned whether that ambiguity means employment benefits already in place for same-sex couples would be rolled back. Sen. Scott Fitzgerald, R-Juneau, the amendment's co-author, said he believes the measure wouldn't prohibit a public or private employer from offering such benefits, although a court may have to make the ultimate interpretation.

The amendment's other author, Rep. Mark Gundrum, R-New Berlin, said Wisconsin must adopt it after the Massachusetts Supreme Court legalized gay marriage. He said allowing such unions would force schools to teach children about alternative families, making their teen years even more confusing.

Vahey, 67, and Taylor, 80, told the committees they met in 1956.

"We've become like one in our thinking," Taylor said later. "We're part of each other."

Because they can't marry, the Milwaukee men pay more in taxes because they can't file jointly. Taylor can't share any of Vahey's work-provided insurance or pension options, and whoever outlives the other isn't entitled to share in his Social Security benefits.

Taylor fought with the U.S. Navy during World War II for the same rights as straight people, Vahey said.

"This is not 1956 and millions of (young gay people) are just beginning to build their lives as we did," Vahey said. "They will not stand for being shunned, disenfranchised and treated as second-class citizens."

Gantner, the 19-year-old from Watertown, said she was raised in a traditional home with five brothers and four sisters. Her parents taught her morality and to follow God, she said.

"They have shown me the love of both a mother and a father," she said. "A marriage is the permanent union of a male and a female who complete each other in their differences."

Tuesday, November 08, 2005

"Divided Consent" 4th Amendment Issue Heard Before U.S. Supeme Court

Today the U.S. Supreme Court heard oral argument in a "divided consent" case (Georgia v. Randolph). The State of Georgia petitioned for cert. after the Georgia Supreme Court held that consent of both cohabitants is required to justify a warrantless search. The case involves the police requesting to enter the Randolph's home. The accused's wife consent to the search, but Mr. Randoph objected. The police entered the home based on the consent of one of the cohabitants. The Georgia Supreme Court affirmed that the husband's right to be free from unreasonable searches and seizures was violated by the police search. The State of Georgia asked the U.S. Supreme Court to hear the case and they will hear argument today.

The Georgia Supreme Court reached the correct decision. It is my hope that the Roberts' Court upholds the decision and protects the 4th Amendment right of cohabitants. The 4th Amendment is designed to protect the home from unwelcome government intrusion. Kyllo v. United States, 533 U.S. 27, 31 (2001) (the home is the principal space protected by the Fourth Amendment); and Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 620 (1989) (a search or seizure absent a judicial warrant is unreasonable except under certain well-defined circumstances.) As stated by the U.S. Supreme Court, “[p]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed...” United States v. U.S. District Court, 407 U.S. 297, 313 (1972).

There are only limited circumstances in which a search may be done by the police without a warrant. These are were there are: exigent circumstances (gunshot is heard outside a house by police or the house is on fire), were contraband is seen in "plain view" or where there is consent by the property owner.

The U.S. Supreme Court has approved searches based on “third party consent” only when the subject of the search has voluntarily relinquished his right to exclude the police, in other words, when the owner has put someone else in charge of their property. See Frazier v. Cupp, 394 U.S. 731 (1969)(allowing “third party consent” when consent was given by a person to whom the defendant had entrusted the property being searched); see also, United States v. Matlock, 415 U.S. 164 (1974) (allowing “third party consent” when one of the occupants of a house consented and none of the others were present or objected.) In contrast, the search of a rented home based on the landlord’s consent was found invalid where the tenants had not consented to the search or relinquished control of the property to the landlord. Chapman v. United States, 365 U.S. 610 (1961).

The United States Supreme Court has never suggested that the police can search a home when the individual target of the search is present and does not consent, simply because a consenting resident had common authority over the property. Indeed, the Court’s cases reject such a notion. As examples, third party consent cases have held that hotel employees could not validly consent to the search of guests’ rooms, even though the employees had a right to access the room. See, Stoner v. California, 376 U.S. 483 (1964)(hotel clerk); United States v. Jeffers, 342 U.S. 48 (1951)(assistant manager); and Lustig v. United States, 338 U.S. 74 (1949) (manager).

In the case before the Court, Randolph never relinquished his ownership right to his home to his wife. As such, any evidence derived from the illegal entry ought be suppressed. The Georgia Supreme Court came to this conclusion and held that consent to warrantless search of home given by defendant’s wife, while defendant was present was not valid without his consent. Additionally, last week the Connecticut Supreme Court reached a similar decision. In State v. Brunetti, 276 Conn. 40, --- A.2d ----, 2005 WL 2678818 (Conn.,2005), the Connecticut Supreme Court held that when joint occupants have equal control over the premises, and both are present when consent to search is sought, both joint occupants must give their consent in order for the ensuing search to be valid). Years ago the Washington State Supreme Court reached the same conclusion. See State v. Leach, 113 Wash.2d 735 (Wash., 1989)(holding the police must obtain the consent of a cohabitant who is present and able to object in order to effect a valid warrantless search).

In Randolph, the Georgia Supreme Court distinguished United States v. Matlock, 415 U.S. 164 (1974) and Illinois v. Rodriguez, 497 U.S. 177 (1990), noting that in neither of those cases were law enforcement faced with the physical presence of joint occupants, with one consenting and the other objecting to the search. The Randolph opinion concluded that consent by one cohabitant is sufficient when the other cohabitant is absent, but if “the cohabitant be present and able to object, the police must also obtain the cohabitant’s consent. Any other rule exalts expediency over an individual’s Fourth Amendment guaranties.” Id. at 615.

The U.S. Supreme Court ought affirm this principle and protect the 4th Amendment rights of individuals who share their home with relatives or roommates and not put them on lesser footing then those who choose to live alone.