I used to write things here.

I used to pretend that I had a smattering of creativity I needed to explore, that it might be worthwhile sharing with others.

I used to pretend that I had something to say, something worth thinking about.

I used to explore things that came to me my mind wandered. I used to think that I could draft them up and then, maybe, they could serve as a spring board to future writings.

But mostly, I used to have free time to spend writing for no real reason other than the fact that I enjoyed it.

I have some free time again. At least today. Maybe I will have some more on Monday.

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I arrived at court a little late today. As I walked in during another attorney's direct examination of a witness, the judge cast a scowl my direction. Then the following exchange took place:

Me: My apologies, your honor.

Judge: Counsel, promptness is a requisite in my courtroom.

Me: Yes, I understand, your honor, and I apologize. I couldn't get my mother off the phone.

Judge: Ah, I see. No problem then. Proceed with your line of questioning.

I know many judges seem a little disconnected from real life, but seriously, most of them think and act just like you and me.

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I just wrote this great post about this game I used to play back in junior high. Then I accidentally lost it while trying to spell check it. I blame the pop-up blocker that Microsoft added to XP with Service Pack 2. So crap. I'll have to do it again some time.

Meanwhile, more proof that the New York Yankees deserve all loathing and contempt directed their way: they actually had the audacity to ask Major League Baseball to declare game one of yesterday's scheduled double header with the Tampe Bay Devil Rays a forfeit because Tampa Bay could not arrive at the stadium on time. The reason? Just some little thing called a hurricane. Actually, that hurricance that shut down most of Florida for a few days.

I mean, I know safety and family and all that crap are important. But the Yankees, who on August 10th held a 10.5 game lead over the comatose Boston Red Sox, have fallen on hard times, and now the Red Sox sit only 2.5 games behind the Evil Empire. Clearly, in that situation the Yanks should get the assistance of Major League Baseball when a really crappy team cannot safely make it to New York on time for a baseball game.

What a bunch of assholes. I hope the Red Sox pass them up, and then the Yanks continue to suck it to the point where the Angels pass them in the Wild Card standings. That would really make my day.

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So my employer for the summer (and I hope beyond) has done themselves pretty well by me.

I have a 35th floor office with a window looking out to the ocean. I can see the planes taking off from LAX, and on days where the marine layer rolls in and out without leaving a cloud cover, I can see all the way out to Catalina. They pay me well, give me very interesting and enjoyable work (though lots of it, but I know my future will have that much work, so I don't care now), and feed me all the time. Literally. This week I will buy three meals for myself for the first time since the job started, and that will happen only because I have elected to work through the lunch hours to try and finish up a big project.

But today I discovered the biggest benefit of this job: my aromatherapy highlighter.

I had used a more traditional emphasis tool for the last couple of weeks because whoever stocked my office gave me that. No sweat. But given the amount of highlighting I do when researching, I exhausted the first yellow marker's potentcy before the summer had passed. So I made a trip to the supply room and restocked my drawer.

Unbeknownst to me of course, was the rush of fake lemon scent that wafted toward my nose as I read about Medicare prescription drug coverage.

My soul took a magical journey through small Arizona communities, where lemon trees drop delightful fruits in the yards of the queer ducks who live there. I thought of summer lemonade in my youthful days, lemon-flavored alcoholic drinks in my formative years, and the lemon I enjoy in a nice glass of Hefeweizen as my booze tastes mature. The delight of my aromatherapy highlighter instantly transported me to another time, where the devilish ways of Congress' language tortures me not, and leaves me instead hoping that the next page will have more crucial language that I must identify and analyze for my superiors.

Oh, I cannot wait to discover the delights resting under the caps of the other colored highlighters now sitting in my drawer, and the magical feelings they shall provoke in me.

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Today is very busy. I have spent the entire day drafting background material for a presentation. I cannot fathom how a person who will speak for about 20 minutes can need 30-some odd pages of background for that conversation, but then again, I know very little about how all this works.

Anyway, I just wanted to throw something up here for the sake of throwing something up here. I have to go home, make dinner, go birthday present shopping, have an unpleasant conversation with my parents, and do some more work tonight.

But at least now I have posted.

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It appears that so much time has passed since I last posted that Blogger went and changed templates for drafting posts. It took me a little while to figure out how to even start writing this. However, the interface looks much nicer, so I imagine most of you who have contiuned to use this format in my prolonged absence have appreciated the new features.

May times over the last five months or so I have thought to myself that Hose Monster had hit the end of the line. I still have not decided whether the blog will continue after this post. I have no idea of whether this post will start a revitalization of sorts. I know only at this point that I have had more "down time" (which is not to say that I have had tons) in the last two days than I have had in months. I have something I need to attend in just under two hours, and I paid for the internet access in my hotel room, so I figured I had better use the connection time while I had it.

I've spent the last couple of days in Milwaukee attending an orientation/recruitment retreat for the law firm I work for this summer, and I hope beyond. Starting a new, and perhaps career job, has counted only for one of the vast array of things that has kept me from posting. I have no desire to sum them up, in part because most all of them would seem boring to someone not involved in my life.

Whatever. This has no direction. I'll get back into it. But I felt like adding something to this space. Cheers.

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Superfoo observed in his comment last week to my post discussing President Bush's proposed constitutional amendment banning gay marriage that, should a federal court somewhere determine that gays have the right to marry, the door to legalized polygamy will swing right open.

At first pass, I think the theory that if we allow gay marriage, we have to allow bigamy and polygamy, makes some sense. I would tell you that if you believe that gays have the right to marry on individual liberty grounds, and yet believe that polygamists shouldn't have that same right just because, then you have some serious hypocrisy issues. If we want to argue that gays should have the right marry because it does not affect others extensively and they do it privately with their own consent, if we wish to stay honest with ourselves, we have to admit that polygamists should have the same freedoms, at least in terms of individual liberties.

That said, while I think the law in this country should permit gay marriage, I could also probably articulate a strong argument why polygamists should not have that same right. I just could not do it on individual liberty grounds.

A (very) brief synopsis of constitutional law requires explication here. We often think of constitutional liberties like speech and free exercise of religion as absolute rights, but the law does not actually create this regime. When dealing with any of these rights and laws that restrict them, reviewing courts apply one of three balancing tests. The first, and most difficult for states to pass, goes by the name of strict scrutiny review (the government interest must be compelling and substantial and the law must use the least restrictive means to assert that government interest). Next we have the so-called "intermediate scrutinty" review (government interest must be substantial and important and the law must clearly relate to that interest). The lowest level, and hence most difficult to attack a law under, goes by rational basis review (the government interest must be rational and the law must reasonably relate to that government interest). In non legal terms, it means if you can get the court to apply strict scrutin review to your individual right, you will likely win, and if you get rational basis review, you pretty much have no shot of winning. Intermediate scrutiny is exceedingly difficult to predict both the time for application and the result of its application.

Coming back to gay marriage and polygamy, I shall first assume for the sake of argument that we have recognized the legality of gay marriage and that we have a constitutional challenge to laws prohibiting polygamy. The standard of review that would go to polygamy could make strict scrutiny review just as easily as it could go to rational basis review. But ultimately, I think under any standard of review, polygamy would have a good shot going down. And here's why.

Under the law, marriage is essentially a contract between the two parties joined and the state granting the marriage (and all the other states and the federal government, under the Full Faith and Credit Clause of the Constitution). As a consequence of this three-party contract, we have the ability to file taxes jointly, we have laws governing the succession of property at death, and many other rights based on a relationship between two people, such as health benefits under ERISA and retirement income under Social Security.

The same-sex nature does not offend any of these legal relationships in my opinion or place any serious extra burdens on the states and the federal government. Granting additional tax deductions for health insurance to same sex spouses might reduce the income that comes into the federal treasury a bit, and in theory, we would create a whole new class of potential Social Security recipients. In practice, I think the extra burden on the tax structure and Social Security would not pan out as people might argue, as many of these new classes would likely have their own employment history, and hence will definitely have their own Social Security history and has a good chance of having employer-provided health insurance.

The individual rights we would protect with gay marriage would therefore not cause a huge uproar, legally speaking, in my opinion.

I see a different result with polygamy. In practice we might not have a ton of polygamist marriages that would upset the balances broadly recognized in our state and federal law, because how many people will go out and get hitched to three or four people? But that does not change the fact that we have potential legal relationships that could cause huge problems.

What do we do with joint tax returns, or succession of property laws? What about rules governing beneficiary presumptions where the spouse presumptively receives insurance benefits upon the death of a spouse? What then with two spouses, or three or four? I could articulate other legal situations where the present of three people in a legal relationship between the government and a marriage complicates, but this has already gotten long, so I'll move on.

I can seriously entertain the argument that this complication arises to the level of a compelling state interest. With the kind of burden that polygamy could cause in requiring states and the federal government to reconsider how they treat "marriage" in the face of laws that have always dealt with a relationship between two people, rational basis review would certainly uphold a state law. Strict scrutiny review might unless we could articulate a better response to issue of what we would do with the sudden presence of multiple beneficiaries under the law.

In light of those issues, it seems to me the states should have the freedom to control the number of people to whom they must extend rights appurtenant to marriage. In that sense, while on individual liberty grounds I see no distinction between gay marriage and legalized polygamy, I do see one in the way the law understands marriage. With gay marriage we still deal with a contract between two people and a government. With polygamy, none of those rules apply with any clarity. And I think that fact is enough to create a legitimate legal line between gay marriage and polygamy.

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Things that absolutely NEED to happen: My pal Tom's suggestion.

However, I need to add that the Hose Fiancée bought me my PS2 that I adore, drinks beer as frequently as I do, and greatly kicks my ass in the napping department. Nonetheless, a day entirely devoted to such acts in exchange for the scourge of Valentine's Day sounds damn good to me.

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So President Bush wants to enact an amendment to the Constitution banning gay marriage.

First of all, I owe you full disclosure: I adamantly oppose this idea. I think gay marriage offends the civil rights protected under the Constitution. Now you know.

The interesting thing to me about Bush's push to amend the Constitution to basically carve out a section of the population is that Bush and his legal advisors also probably think the Constitution, in its current form, protects gay marriage. If not, why the sudden vitriol to specifically declare that the right of marriage shall not extend to homosexuals? Indeed, others appear to have made this inference, such as the article I linked above:

The Bush White House fears the law could be struck down and allow gay couples married in one state to have the same rights as traditionally married couples in all other states.

For one, the fact that we've entered a full blown election season has much to do with it. It should surprise few that Bush has taken steps to shore up his conservative base. He did the same thing in 2000 by talking about the importance of faith-based initiatives, and even endured some major criticism for campaigning at Bob Jones University.

But perhaps more importantly, the stage seems somewhat set for a Supreme Court ruling that the Constitution protects gay marriage.

For one thing, we have a federal statute that begs for judicial inquiry in the Defense of Marriage Act, signed into law by President Clinton (somewhat curiously, perhaps). The gist of the DMA is that, for federal purposes, marriage constitutes a legal union between a man and a woman. So in any federal law referencing marriage (the Internal Revenue Code is a great example), rights of married persons cannot extend to gay couples joined civilly in states that have allowed such relationships.

Moreover, the gay community has mobilized, and their rapid mobilization has caught the country somewhat off-guard. Their assault on the clerk's office in San Francisco has proven a master stroke of planning, as many other municipalities seem ready to fall behind San Francisco. I thought I saw today that the California Supreme Court will address the issue, but I can find no news story confirming it.

Thirdly, and perhaps most interesting, we have the Lawrence v. Texas decision from the U.S. Supreme Court that came out last summer, declaring that states may not make homosexual sex illegal.

The decision indicates some sympathy on the high court for homosexuals and their putative rights. Moreover, the court decided the case on a 5-3 basis, with Justice O'Connor joining the majority in the judgment but not the opinion. The essential 6-3 decision adds some force to the ruling, and gives interesting grounds for speculation. Predictably, Justices Breyer, Ginsburg, Souter and Stevens would likely vote that the DMA violates the Constitution. Justice Kennedy, who wrote the opinion in Lawrence might or might not, as he has a historically conservative side (which explains the surprise of many that he authored the Lawrence opinion, but which perhaps also gave it more force). Justice O'Connor, who would have ruled against Texas on equal protection grounds rather than substantive due process grounds, would constitute another critical swing vote, though perhaps more willing to side with the liberal wing of the Court than Justice Souter on this potential issue. Justices Scalia and Thomas, and Chief Justice Rehnquist, would certainly uphold the validity of the DMA.

Yet though the stage appears set, the Defense of Marriage Act has curiously evaded any constitutional challenge to this point. Which leaves us with a political determination from Congress and the president, but not a legal determination from the federal courts. It would seem to me that something this important would have become a focus of ACLU litigation somewhere.

But assuming this does happen at some point, the big question I have, if and when the Supreme Court considers a challenge to the DMA and if they can declare it unconstitutional, is where they might find the grounds for such a ruling.

Lawrence v. Texas relied on the 14th Amendment. However, the substantive due process and equal protection doctrines of that amendment apply only to the states, not to the federal government. If I recall my Constitution correctly, the federal government must observe the due process dictates of the 5th Amendment, but that due process seems a wholly different animal than the one referenced by the 14th Amendment. No similar equal protection language exists in the Constitution applying to the federal government.

Perhaps the Court could establish under the 14th Amendment that the states could not make gay marriage illegal, and then, using the 9th Amendment, claim that it is axiomatic that if the states cannot deny a civil right, the federal government certainly cannot deny it. But the Constitutional grounds remain somewhat curious, at least to me.

Anyway, the thing I don't understand is how the DMA has escaped constitutional challenge to this point, but with everything happening right now, perhaps one will come very soon. I really doubt President Bush could manage to get the Constitution amended without the Supreme Court first passing on the issue, so I ultimately believe that the first important clarification will come with a Supreme Court interpretation of the Defense of Marriage Act, if it ever indeed happens.

Under the current Court, gay marriage might have a chance. 4 more years under Bush (which will almost certainly result in the retirement of Chief Justice Rehnquist and a new, equally conservative chief, and may likely result in the retirement of Justice Stevens, the liberal bloc's eldest member) might very well change that.

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Best looking thing I've seen all day.

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