Special Reports

In the Texas Democratic debate between Hillary Rodham Clinton and Barack Obama on Thursday, Clinton observed that the debate fell on the very same day of what would have been the 72^nd birthday of her friend Barbara Jordan, who was a well-known U.S. Representative from Texas. In affiliating herself with Jordan, who enjoyed huge popularity in the Lone Star State, Clinton was of course hoping to curry favor with voters there. But who was Barbara Jordan?

Barbara Jordan was born into poverty in Houston, Texas, in 1936.  Through academic achievement and lots of hard work, she defied the odds of her humble roots and became a lawyer, a Texas state senator, and a member of the U.S. House of Representatives.

She was catapulted onto the national stage in 1974 when, as a member of the U.S. House Judiciary Committee, she voted to impeach President Richard Nixon, saying “my faith in the Constitution is whole; it is complete; it is total.  And I am not going to sit here and be an idle spectator to the dimunition, the subversion, the destruction, of the Constitution.”  Jordan went on to explain what various 18^th century sources believed the grounds for impeachment to be, to detail what the evidence against Nixon was, and to conclude that “[i]f the impeachment provision in the Constitution of the United States will not reach the offenses charged here, then perhaps that 18^th-century Constitution should be abandoned to a 20^th-century paper shredder.” (You can read the speech here.) (Note:  Contrary to popular belief, Nixon was never actually impeached. The House Judiciary Committee approved articles of impeachment, and sent the articles to the full House for action, but Nixon resigned his post before any further action could be taken.)

As a U.S. Representative, one ofJordan’s major accomplishments was her sponsorship of a bill that broadened the reach of the Voting Rights Act of 1965 to combat literacy tests that worked to disenfranchise Mexican Americans in Texas and other southwestern states. 

In 1976 Jordan was the first African-American to give a speech at a major political convention when she appeared at the Democratic National Convention in New York City.  Her speech – “Who Then Will Speak for the Common Good?” – has been called one of the best speeches of the 20^th Century and cemented her place as one of America’s most revered orators. Jordan’s major theme was how Americans could create a national community based upon universal equality.  Her basic premise was that every person must bear individual responsibility for this goal, for “[i]f one citizen is unwilling to participate, all of us are going to suffer. . . the American idea . . . is realized in each one of us.”  In urging people to do their part, Jordan held out words spoken by Abraham Lincoln as a guiding principle: “As I would not be a slave, so I would not be a master.  This expresses my idea of Democracy.  Whatever differs from this, to the extent of the difference is no Democracy.”  (You can listen to the speech here).

Jordan retired from politics in 1979 due to ill health, but continued working as a teacher, and on other projects, until her death in 1996. 

The United States Court of Appeals for the Second Circuit ruled on February 8, 2008 that fast food restaurants are required to effectively communicate their menus to blind customers under the Americans with Disabilities Act (ADA).

The decision reversed a lower court’s opinion dismissing an ADA complaint filed in 2005 by Alice Camarillo, a blind resident of New York State.  The McDonald’s, Wendy’s, Taco Bell, and Burger King in Caramillo’s neighborhood all fail to provide blind patrons with large-print menus.  Although restaurant employees would sometimes agree to read Camarillo the menu aloud, Camarillo alleges that they would frequently act annoyed as they did it, were rarely willing to recite all menu options, and occasionally made her wait until all other customers waiting in line behind her had been served their food first.

United States District Judge Gary Sharpe dismissed Camarillo’s litigation in September 2006, concluding that she had not sufficiently alleged disability discrimination because nowhere in her complaint did she say that the restaurants did not permit her to eat. 

On appeal, the Second Circuit reversed Judge Sharpe’s decision and sent the case back to his docket. Regardless of the fact that Camarillo was never actually denied food, the Court observed that fast food restaurants and other public accommodations are required under the ADA “to take such steps as may be necessary to ensure that no individual with a disability is. . . treated differently than other individuals because of the absence of auxiliary aids and services.”  Her case reinstated, Camarillo will now have the opportunity to develop her litigation further and perhaps settle with the defendants or take it to a jury. 

The Second Circuit’s decision is great, but I have to say that two things about this story boggle the mind, the first of which is that Judge Sharpe ruled the way he did in the first instance.   Shunting a blind person off to a corner while all sighted people are waited on first isn’t disability discrimination so long as some pimply teen eventually, begrudgingly reads her a part of the menu and then — and apparently this is key — deigns to sell her a burger?  The second thing that trips me up about this case is that fast food restaurants don’t have large-print menus under their counters already.  Blind people aside, do you know how many old people love to hang out at McDonald’s in the morning? How much could it possibly cost to have someone at headquarters type this up and pdf it out to the franchisees with instructions to stick it by the registers? 

An interesting divorce case, P.B. vs. L.B., came out of a New York trial court on January 16, 2008.  Decided by Justice Debra Silber (pictured), the case ruled that married couples could not contractually alter either party’s right to file for divorce after one year of legal separation.

In New York, which has rather restrictive divorce laws relative to some other United States jurisdictions, one grounds upon which a couple can seek divorce is if they get a separation judgment or decree, and then continue to live apart for one year afterwards. New York law permits a divorce on such grounds because legislators figured that if a couple doesn’t reconcile within a year of formal separation, then the marriage must truly be dead.

One New York couple drafted a separation agreement bearing a provision stating that instead of one year, the husband would have to wait five years after the separation before he could file for divorce (“the five-year provision”).  The husband apparently didn’t want to wait five years, however, because he ignored the contract and filed for divorce after one.  The wife filed a motion to dismiss the divorce petition, pointing out non-compliance with the five-year provision.

Justice Silber refused to enforce the five-year provision.  In so ruling, Silber cited the legal doctrine of Expressio Unius Est Exclusio Alterius, or “the specific mention of one thing implies the exclusion of other things.”  According to Silber, when the New York Legislature said that a party to a marriage had the right to petition for divorce one year after the parties’ formal separation, it meant it, and spouses could not contract around it.

The obvious retort to all this is:  Regardless of what the husband’s statutory right to divorce is, shouldn’t he have to abide by his voluntary agreement to give it up? No.  Although the law recognizes a free right to contract, it will not enforce contracts with unconscionable terms that are contrary to public policy.  Here, the five-year provision was deemed unconscionable, and therefore unenforceable, because it “frustrate[s] the right of a party to seek a divorce. . . [which is] against the state’s clearly articulated public policy of allowing parties to seek an end to ‘dead marriages’” after one year of separation.

I’d be interested to know why the wife so desperately wanted to stay in the dead marriage anyway.  I’m no divorce lawyer, but I presume the husband had greater earning potential than she did such that she wanted four more years for the marital estate to grow before she got her cut in a divorce proceeding?  If any of my two readers have insight (Hi Busie!  Hi dad!), please feel free to share with a comment to this post.  

Earlier today a Wisconsin appellate court ordered a new trial for Audrey Edmunds, a woman who was convicted of reckless homicide ten years ago after a baby she was babysitting died as a result of shaken-baby syndrome.  So far she has served ten years of her eighteen-year sentence.  Over the course of those ten years, medical experts’ views on shaken-baby syndrome have evolved to the point where Edmunds is entitled to a new trial because, in the words of Judge Charles Dykman, “there is a reasonable probability that a jury, looking at both the new medical testimony and the old medical testimony, would have a reasonable doubt as to Edmunds’s guilt.”   

The basic facts of the case are that in 1995, Edmunds was babysitting 7-month old Natalie Beard when she noticed that the baby had gone limp and had a liquid running out of her nose.  Natalie died in the hospital later that night.  The forensic pathologist who performed an autopsy on Natalie later testified at Edmunds’s homicide trial that Natalie bore three classic signs of shaken-baby syndrome: retinal hemorraghing, cerebral hemorraghing, and brain swelling. That testimony, combined with the simple fact that Natalie was in Edmunds’s care when she was afflicted with shaken-baby syndrome symptoms, contributed to the jury’s finding that Edmunds was guilty of shaking the baby, and therefore, reckless homicide. 

Medical research in the decade since Edmunds’s conviction, however, has sparked a “fierce debate,” in the words of Judge Dykman, as to a critical aspect of the case against Edmunds. In the past ten years, many medical experts have come to recognize that a baby who has suffered a serious head injury can have a period of lucidity before manifesting symptoms.  In the context of Edmunds’s case, then, many medical experts would say that it is simplistic to conclude that the serious head injury that killed Natalie had to have occurred on Edmunds’s watch simply because Natalie died while under Edmunds’s care.  One of Natalie’s parents hypothetically could have fatally shaken the baby before dropping her off at Edmunds’s house, for instance.  Knowing this, the Wisconsin appellate court held that there is a reasonable probability that a jury would have a reasonable doubt as to Edmunds’s guilt on the new facts of this case – in other words, that a jury would acquit Edmunds! – and that Edmunds therefore deserves a new trial.

It was key to Edmunds’s victory today that the facts that she argues will exonerate her are new in the sense that they only gained acceptance in the medical community after her original conviction.  Had the facts been available to Edmunds for presentation to the jury at her first trial, and her defense simply chose not to present them, then Edmunds could not now successfully argue any inherent unfairness in her criminal adjudication.    

The photo accompanying this post is of Audrey Edmunds.  At the time of her conviction Edmunds had three small children, ages five and under.  The girls are now eleven, fourteen, and fifteen years old.  They live with their father, Edmunds’s ex-husband (he divorced her only recently), and visit the prison to see their mother once a month.   

In a column published in The New York Times on January 30, 2008 Maureen Dowd discusses Barack Obama’s anger at the Clintons’ treatment of him during the Democratic primaries.  “But Obama’s outrage makes him seem a little jejune,” Dowd says.  “He is surely the only person in the country who seemed surprised when the Clintons teamed up to dissemble and smear when confronted with an impediment to their ambitions.” Jejune? 

In the sense used by Dowd, the word “jejune” is an adjective meaning adolescent, juvenile, or immature. So basically, what Dowd was saying – by way of an incredibly obscure word (or is that just me?) – was that Obama’s shock is a little immature.

Dowd’s usage of the word “jejune,” though commonly accepted now, is in fact a bastardization of its original meaning, which was “[to be] empty of food, [or] meager.” In 1994, French-American etymologist Jacques Barzun told another Times columnist, William Safire, that “the meaning ‘youthful, childish’for jejune has got into the dictionaries only as a concession to the misusers.” Barzun speculated that “jejune” evolved into a synonym for juvenile simply as a result of its sounding like the latter word. 

I was recently watching movie trailers on the Internet, where I saw one for The Other Boleyn Girl, slated to open nationwide on February 29. Among other things, the movie examines how Anne Boleyn profoundly diverted the course of English history when she wooed King Henry VIII away from his first wife, Catherine of Aragon.  In his quest to dissolve his first marriage so that he could marry Anne, Henry created the Church of England so that the Vatican would not get in his way, thus starting the English Reformation.

The story starts with Catherine of Aragon, who had an interesting resume when she married Henry in 1509:  not only was she the daughter of Spain’s King Ferdinand and Queen Isabella, the rulers who funded Christopher Columbus’s discovery of the New World, but she was also, as Henry’s brother’s widow, his sister-in-law.  Over the course of their marriage, Henry and Catherine had six children, but only their daughter Mary, who was born in 1516, survived infancy. The fact that his union with Catherine did not seem destined to produce a male heir became a source of tremendous annoyance to Henry. 

Just as Henry’s marriage to Catherine became more and more strained, Anne Boleyn, whose family belonged to the English aristocracy, began working as one of Catherine’s attendants.  It wasn’t long before Anne caught Henry’s eye.  Anne decided to make a power play and refused to have sex with Henry until they were wed. Henry eventually became so smitten with Anne, and so disillusioned with Catherine, that he petitioned for an annulment of his marriage to Catherine in 1527.   As grounds for the annulment, Henry pointed out that Catherine was his sister-in-law and therefore could not also be his wife. 

It took seven long years of sexless love with Anne before the annulment was finally granted by the Archbishop of Canterbury in 1533.  Henry and Anne were married right away, and the one-two punch of the annulment and Henry’s remarriage left Catherine devastated. In order to prevent Catherine from appealing the annulment to the Vatican and jeopardizing his second marriage, Henry famously created a Church of England, independent of the Vatican, so that he would not have to answer to any subsequent papal decrees on the matter.

Unfortunately, Anne did not have any more luck than Catherine at producing a male heir. Anne gave birth to a healthy girl, Elizabeth, in 1533, but all further pregnancies resulted in miscarriage. This, combined with Anne’s despair at Henry’s string of extramarital affairs, caused strife in the marriage, and Henry once again got the itch to remarry, this time to mistress Jane Seymour. Henry disposed of Anne by having her arrested, tried, and convicted, all in a matter of two weeks, on trumped-up charges of adultery. Anne was beheaded for her crimes at the Tower of London on May 19, 1536. Respectful guy that he was, Henry waited a full day to announce his engagement to Jane Seymour, and the two were married before the month was up.

The image of Catherine of Aragon used in this post was painted by Michael Sittow, an Estonian artist schooled in the Dutch tradition, who lived from 1469 to 1526. The image of Anne Boleyn was sketched by Hans Holbein the Younger, a German artist who lived from 1497 to 1543.

I recently began working at Kramer Levin, a law firm whose name partner is the brother of renowned gay activist Larry Kramer.  In 2005, Larry Kramer published the transcript of a speech he gave upon the occasion of President George W. Bush’s 2004 reelection.  Called The Tragedy of Today’s Gays, Kramer’s speech revisits one of the most repeated themes of his public activism, which is that gay men indulge in sex and drugs too much and engage in politics too little.  Kramer first achieved notoriety in the gay community for his 1978 novel Fa**ots.  In Fa**ots, Kramer chronicled 1970’s gay sex culture, deeming that decade’s promiscuous sex and copious drug use to be vacuous activities.  In The Tragedy of Today’s Gays, Kramer laments that modern gay mens’ pursuit of casual internet sex and consumption of crystal meth are indicators that gays haven’t changed their behavior much since the 1970’s despite the intervening lesson of the AIDS crisis. 

Kramer urges gays to change.   He invokes the 1971 Powell Manifesto as one reason that gays cannot afford to be cavalier about politics.  In 1971, a private sector attorney named Lewis F. Powell, Jr., who would later be named a U.S. Supreme Court Justice by Richard Nixon, wrote a confidential memorandum to the U.S. Chamber of Commerce outlining a long-term program for conservative reforms.  Kramer argues that conservatives have implemented the Powell Manifesto with great gusto ever since, and warns that the United States will become an even more Powellian society the longer gays refuse to engage more actively in politics.

Kramer goes on to attack three public figures as the people bearing the most responsiblity for allowing HIV to spread the way it did in the 1980’s:  Edward Koch, the Mayor of New York City from 1978 to 1989; Dr. Richard Krause, the head of the National Institute for Allergies and Infectious Diseases (NIAID) from 1975 to 1984; and, bizarrely, Ronald Reagan, Jr., the son of Ronald Reagan, Sr., President of the United States from 1981 to 1989. 

Why Ronald Reagan, Jr.?  Kramer points out that Reagan, Jr., who was a ballet dancer, was widely believed to be gay, and that “because of Junior Mr. and Mrs. [Reagan] refused to allow any talk about AIDS because that would mean talking about gays and that would mean even more rumors about Junior.”  Indeed, Reagan notoriously refused to even utter the word AIDS in public until September 1985, some four years after the CDC observed the first cluster of infections, and even then it was only in response to a reporter’s question about the disease at a press conference. 

In a 2004 article written for Z Magazine, journalist Michael Bronski reflected on what, for him, was the most appalling Reagan AIDS moment.  In 1986, while Reagan still dawdled on implementing meaningful federal AIDS policy, he attended a centenary celebration for the Statue of Liberty where Bob Hope performed.  Hope cracked a stupid joke about how he “had just heard that the Statue of Liberty ha[d] AIDS, but she doesn’t know if she got it from the mouth of the Hudson or from the Staten Island Fairy.”  The camera panned to the Reagans and captured them laughing. The Mitterrands, on the other hand, sitting next to the Reagans, appeared disgusted at the homophobic humor.

Senator John McCain (R-AZ) won the New Hampshire Republican primary this evening, receiving roughly 37% of the vote to Massachusetts Governor Mitt Romney’s 32%.   In the days leading up to the contest, CNN’s political ticker blog discussed McCain’s gains against Romney in the polls, and quoted McCain as saying that “[s]omehow we’ve had a Lazarus-like experience.” 

The story of Lazarus is told in the New Testament, in John 11:1-46.  Lazarus, who along with his sisters Mary and Martha had great faith that Jesus was the Son of God, fell gravely ill in Bethany, a village near Jerusalem.  Jesus was not in Bethany at the time and did not immediately go there to heal Lazarus despite Mary and Martha’s pleas that He do so. By the time Jesus determined to make the dangerous trek to Bethany (the Romans were actively looking for Him), much time had passed and poor Lazarus had already died and been buried for four days. 

Mary and Martha felt that Jesus had forsaken them in their time of need, for they believed that Lazarus surely would not have died had Jesus come when they first asked.  But Jesus dismissed their frustration with the order that the stone atop Lazarus’s tomb be rolled aside. 

Martha protested:  “But Lord . . . by this time there is a bad odor, for he has been there for four days.”  But Jesus reassured her that she would see the glory of God when the stone was rolled away, and sure enough, Lazarus did pop out of the tomb, healthy as a horse, shed his grave clothes, and went on his merry way, to the astonishment and joy of all present.

And so when something putatively dead, such as John McCain’s pre-New Hampshire presidential campaign, suddenly experiences a jolt of renewed life, it is called a “Lazarus-like” event in remembrance of this famed biblical story. 

The photo accompanying this post depicts "Raising of Lazarus," painted by the Dutch painter Rembrandt Harmenszoon van Rijn around 1632.

An article in the December 18, 2007, edition of The New York Times recounts the spectacle that was Celine Dion’s final show at Las Vegas’s Caesars Palace.  Despite the fact that the show, which ran for almost four years, was originally viewed as a bad career move by show business insiders, Dion proved the naysayers wrong and, according to Times reporter Melena Ryzik, used the enormously popular gig to “put aside her pop career and [make] a transition to a kind of diva career.”  This diva worship was on full display for Dion’s final performance; not only did a number of fans make pilgrimages from far-flung locales, but one showed up with a large tattoo on her arm to commemorate the occasion, prompting Ryzik to make the (lame) joke that “Celine Dion fans can be more than dyed in the wool:  [this one] is dyed in the shoulder.”

If someone is a dyed-in-the-wool supporter of an artist, cause, etc., then they support the object of their fanaticism through and through, without question.  The saying “dyed in the wool” and the permanence it conveys refers to the fact that colors fix fast and forever to wool when it is dyed in its raw form.  Wool is a natural animal fiber which quickly absorbs dye and bonds to it permanently.

Wool that has been dyed raw therefore achieves a continuing vibrance of color that is difficult to emulate in textiles derived from synthetic fibers. Synthetic fibers frequently need to be chemically treated in order to absorb colors, and even then are much more apt to fade.

Let’s return to Celine Dion, though, because I simply can’t wrap this up without mentioning and linking to her classic September 3, 2005 appearance on Larry King Live in the wake of the Hurricane Katrina disaster.  I will love Celine Dion with all my heart for the rest of my life for how funny and passionate and moving she is here.  She gave $1 million to relief efforts, and when Larry King congratulates her on it, she goes off in the most incredible, beautiful way.