New York Recognizes Gay Marriage Solemnized In Other States; Republicans Scramble

New York Governor David Paterson yesterday ordered state agencies to recognize same-sex marriages solemnized in other jurisdictions, such as in California.  The governer’s decision was based on New York’s long standing “marriage recognition rule.”  What is the “marriage recognition rule”?  For over one hundred years, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exceptions:

1) marriage, the recognition of which is prohibited by the “positive law” of New York and 2) marriages involving incest or polygamy, both of which fall within the prohibitions of “natural law”.  (See Martinez v. County of Monroe, et. al., Appellate Division, Fourth Department, Slip Decision 1562 CA 06-02591).

Put another way, if a marriage is valid in the place where it was entered, “it is to be recognized as such in [New York] courts, unless contrary to the prohibitions of natural law or the express prohibitions of a statute.”  See Moore v. Hegeman, 92 NY 521, 524.

Under the “marriage recognition rule” and the law set forth under the Appellate Division (New York’s intermediate appellate court), Governor Paterson issued the administrative order to recognize same-sex marriages solemnized in other jurisdictions.  By doing so, Governor Paterson in effect made the determination that a) gay marriages in other states were not contrary to “natural law” and b) gay marriages were not “expressly” prohibited by New York statute.

New York State Senate Majority Leader, Joseph Bruno, plans to challenge the Governor’s decision on the grounds that Governor Paterson violated the state constitution’s separation of power’s clause.  It’s an interesting planned move by Joe Bruno.  

Joseph Bruno is referring to is a set of New York Court of Appeals decisions, Hernandez v. Robles, Samuels v. New York State Department of Health, In Re Elissa Kane v. Marsolais, Seymour v. Holcomb.  The main question in these sets of cases was whether New York’s Domestic Relations law — long interpreted to allow only opposite-sex couples to marry — violated the state’s constitutional guarantees of equal protection and due process.  In a 4-2 decision, New York Court of Appeals (New York’s highest court) determined that its constitution did not require the state to issue marriage licenses to same-sex couples.  The plurality decision determined that same-sex marriage was not a “fundamental right” requiring strict scrutiny, but rather the more relaxed rational basis test.  Using the rational basis or rational relation test, it was not surprising that the plurality court did not strike down the Domestic Relations law (courts rarely strike down a law if no fundamental right is involved). 

Although the New York decision was not a favorable one to the movement for same-sex marriages, the decision was not as sweeping as State Senator Joseph Bruno or others want it to be.  After all, the decision dealt with the narrow issue of whether the NY constitution mandated the state to issue marriage licenses to same-sex couples.  The New York decision did not deal with the more general concept of whether same-sex marriages violated natural law, statutory law, or any other legal concept, such as due process or equal protection.

To be sure, one may argue that the New York decision expressly upheld the Domestic Relations law as one solemnizing a marriage only between a man and a woman.  Therefore, one may argue, the decision held — by logical extension — that a marriage between the same sex violates that law.

The court, however, never expressly stated as such.  The reasoning it used to support its ruling — that the constitution does not mandate the state to issue marriage licenses to same-sex couples — was primarily dicta.  Dicta is only instructive, not binding, on other courts.  Thus, the argument that the “logical extension” of the decision was to preclude marriage between the same sex, is not supported by the language of the court ruling itself.

Sure, it is a hyper-technical argument, but most legal arguments are hyper-technical by their very nature.  Of course, it will be for a court to determine expressly whether Governor Paterson’s administrative decision violates the Domestic Relations Law.

Until that time, New York will recognize same-sex marriages solemnized in other states.  Governor Paterson’s move was a shrewd one and shows without a shadow of a doubt that he learned a thing or two in over his twenty years in Albany. 

solemnized outside of New York unless they fall into two categories of
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Manchester United Takes The Title From Chelsea; John Terry Chokes

All eyes were on Moscow last night for the much anticipated Champions League final between Manchester United and Chelsea.  The game’s drama — from Ronaldo’s header to Drogba’s red card to Terry’s major choke job — did not disappoint fans looking for some excitement.  The quality of the game, though, was an entirely different story.  As a whole, it was subpar at best.  Perhaps it was the pitch, the jitters, or the rain, or maybe it was the atmosphere of playing in a different country.  In the end, though, the penalty shootout made most of us forget how “unbeautifully played” the prior 120 minutes were.

Sure, there were moments of glory on both sides, but none of this was sustained.  How many long balls did you see kicked that went nowhere?  How many times did you see either team string more than six passes together (not including those on their side of the half)?  How many crosses did you see that were even close to connecting?  How many shots did you see that were actually on goal (Ballack was aiming at a goal somewhere in the upper deck of the stadium)?

Now don’t get me wrong.  I am a big fan of English football.  I am also a big fan of Liverpool (so, yes, I still believe Liverpool should have been in the final and could have beat Manchester United in regular time).  And that’s why I’m writing this post here:  I don’t think the game last night was representative of the beauty of English football, and particularly what either Chelsea or Manchester United are capable of.  It seemed more like a kickball match with occasional moments of individual glory — from Ronaldo to Lampard.  The only thing that truly saved this game from mediocrity was the penalty shootout.  The shootout hoodwinked us to thinking how amazing the game it was.

To be sure, it was amazing in terms of overall excitement, much like watching a dog brawl.  But was it amazing in terms of high quality soccer?  I don’t think so.

In the end, I do feel bad for Chelsea.  To me, if Chelsea can get past the first half without losing too much, they always have a shot to win.  Chelsea is a second-half team.  And as anyone could see last night, Edwin Van Der Sar seemed mighty weak and tentative last night.  I think Ballack could see that and he kept shooting.  It was the right thing to do except that Ballack was missing awfully.  If Chelsea had a few more shots on goal, then the seemingly flat-footed Van Der Sar would have some serious problems stopping them.  Who knows what would have happened then.  Did you see Essien’s left-footed shot to the right corner?  Van Der Sar was studying rocks when the shot was taken.

Manchester United had their opportunities in the first half for at least two extra goals, but they couldn’t convert.  Chelsea made MU pay for their failure, when Lampard was in the right place at the right time.  Lampard was certainly fortunate but he wasn’t lucky.  Great players like Lampard are in the right place at the right time for a reason.

The second-half was dominated by Chelsea, even though Drogba was pretty much useless.  Chelsea controlled the ball and for the most part sidelined Ronaldo from doing much of anything.  Although Chelsea had their opportunities, Manchester United was not truly pressed by Chelesea’s offense.  Kalou should have been put in much earlier.  His quickness was too much for Manchester United, but he wasn’t in long enough to really sustain a solid string of attacks.  Of course, too, Terry, the master defender, had his head in the right place at the right time to stop Giggs from attaining glory in the last few minutes.

Then came the shootouts.  It’s more mental task than one of skill at that point and especially for these professionals.  No one wants to be the one to miss and that fact will always weigh heavy on a player’s mind — to some, much more.  Ronaldo, not surprisingly, missed his shot in a stupid attempt at a start/stop.  What’s his deal?  I think Ronaldo is to penalty shots as Shaq is to free throws.  It’s a big mental wall for him, which is a little hard to explain for such a great player.  To be fair to Cech, he seemed to be in the right place at the right time, for most of the initial shots.  Unlike Van Der Sar’s performance, Cech seemed like he was capable of stopping any of the shots.  With Van Der Sar, you just hoped that a player missed or shot it directly at him.

And then came John Terry.  It only seemed right that the final goal should come down to him.  This is what soccer dreams are made of:  to shoot the final goal to win the whole enchilada.  It’s like bases loaded, 2 outs, bottom of the 9th.  But Terry didn’t hit a homerun.  He didn’t hit much of anything, in fact.  Sure, he slipped on the pitch. 

Blame it on the rain.  Blame it on the Russians.  Blame it on the rising prise of crude oil.  Frankly, though, he choked.  Terry choked.  There is no getting around it.  He is the heart and soul of that Chelsea team and when he slipped and missed, all knew that was the end for Chelsea.  Sure, he didn’t lose the game for Chelsea, but he surely didn’t win it for them either.

It would only be a matter of time before an unlucky Chelsea player missed — Anelka — in what ended up being a good guess stop by Van Der Sar.  This was no testament at all to Van Der Sar’s prior attempts at stopping the other Chelsea players, such as Lampard, who had pretty much kicked a fastball a few feet to Van Der Sar’s left. 

In the end, whoever won the game last night would be a testament to their luck as opposed to being the better team.  At least for this go round, Manchester United was the luckier.

Kosovo’s Justice System: Two Ideas For Reform

From 1999 until now, a slew of articles and pundits have addressed everything that  is wrong with Kosovo’s justice system, such as its lack of transparency or lack of independence.  Many of these articles, particularly those from Amnesty International or Human Rights Watch, make some very important observations about Kosovo’s judicial system.  You can find these reports online by simply visiting their respective websites.

I don’t intend to repeat here word for word what already has been said about Kosovo’s justice system or provide a laundry list of complaints.  I will just focus on two issues that can go a long way to improving an emerging system.  There are other issues, but for the sake of this post, I will rely on two.

Now, don’t get me wrong.  Kosovo’s justice system has made improvements, but much is left to be desired.  Of course, no justice system is perfect and we shouldn’t judge Kosovo by that standard.  But for a new emerging state, the choices leaders and internationals make now in Kosovo (and dealing with decisions that should not have been made before), are critical to the question of whether Kosovo’s judicial system will be an independent, fair, and an effective institution.

1) Mentoring:  Too Little, Too Late:  UNMIK Regulation 2000/64 provided International Prosecutors with the power to remove cases from local prosecutors and judges.  The basis for this regulation stemmed from the failure of local prosecutors and judges to handle certain cases with either the impartiality or competence required.  Local prosecutors and judges demonstrated a complete failure to apply the rule of law and, instead, placed ethnic nationalism over that.  For instance, a Serbian who threw a rock at a passing car driven by an Albanian would be charged with attempted murder.  In other cases, an Albanian perpetrator who committed murder or some other serious crime would not be prosecuted past the “investigation” stage.  International Prosecutors soon were handling the most serious of Kosovo’s cases, i.e. war crimes, and inter-ethnic cases, either between victim and perpetrator, or perpetrator/victim and prosecutor (i.e., Serbian defendant; Albanian prosecutor). 

While this was a unique opportunity to establish the Rule of Law — and, in fact, was the first time such a model in which an international prosecutor could remove a case from the local judiciary existed — it did nothing to empower the “local” judicial institution.  International prosecutors and judges were dealing with the most serious and complex of cases while local prosecutors were left with the “easier” stuff.  It quickly created a dependency by the “local” judicial institution.  You have too much work in your case?  Well, it must be too complex.  Hey, give it to the International Prosecutors to handle.  

This bifurcated system created no incentive by local prosecutors or judges to “own” their cases.  Further, there was no communication between the “local” and “international” system.  One generally didn’t know what the other was doing.  So, while on paper, the Rule of Law was being improved because there were War Crime or Inter-ethnic investigations and indictments and trials, the “locals” were being left behind.  The “international” system was arguably improving, but the “local” system?  Far from it.

Only in 2007, six years after the creation of International Prosecutors and Judges, did the Internationals decide it was time to start a mentoring program, under the guise of the Kosovo Special Prosecutor’s Office.  These Special Prosecutors were supposed to be the best of the best of Kosovo’s local prosecutors.  KSPO prosecutors were going to be mentored by International Prosecutors.  In theory, despite the late implementation of such a program, it’s a good idea. 

Mentoring helps because it integrates the “international” and “local” system and provides education for local prosecutors on how to better handle certain types of cases.  In practice, it’s not enough.  The KSPO consists of about 7 – 10 special prosecutors.  They are all based in Pristina.  What about the other regions?  What about the other prosecutors in the other five regions, including t he local prosecutors in Pristina?  How were they improving?  How were they integrating into the UN goals of improving the Rule of Law?

To be sure, US Aid, US DOJ and other organizations ran lectures and trainings for local prosecutors and judges.  But, frankly, that should have been the UN’s job.  It was the UN’s priority to establish the Rule of Law, not simply on paper, but to empower those who have most ownership in Kosovo — the local prosecutors and judges — to carry on with those ideals once the internationals left the scene.  Organizations such as US AID can only hope to supplement skills and education that local prosecutors and judges should have been learning from day one.  Instead, these organizations, rather than the UN, are providing the substantive work.  UNMIK’s DOJ has its priorities mixed up and is been sitting on its hands for too long.

Hopefully, the new EULEX mission will change all that.  There will be more of a mentoring/monitoring role of international prosecutors and judges.  International prosecutors and judges will not all be in Pristina but in all the regions.  It’s a shame that the mentoring/monitoring idea has only started to come into fruition now.  This doesn’t make much sense, as the police utilized the mentoring/monitoring model almost from day one.  Kosovo’s Police Service is in a much better position to run things independently than local prosecutors or judges.  In fact, KPS has taken over some enforcement responsibilities completely from UNMIK’s International Police.   

2)  Before Independence, There Must Be Competence:  The big mantra by any group or pundit or politician, like Thaci, is, “Kosovo’s Judiciary Must Be Independent!”  This is hard to argue with.  An effective judicial system does require independence.  Independence from political pressure.  Independence from corruption.  Independence between prosecutors and judges.  The list goes on. 

But one thing that isn’t discussed too often is independence from incompetence.  Before a judicial system can be truly independent, you must first have competent prosecutors and judges.

More focus and resources must be placed not simply on fixing the structure of Kosovo’s current judicial system, but improving Kosovo’s legal education model.  The majority of local judges and prosecutors of today are trained under the old communist Yugoslav model.  There is nothing wrong with this model but its a different world.  What worked then really won’t work now. 

If you want to get a taste of the competence of local prosecutors and judges, step into any courtroom in Kosovo.  You will see lawyers who have no idea how to either make a legal argument or to ask questions to a witness.  Sure, training can help improve the legal acumen and trial skills of local prosecutors and judges, but the real foundation must start with proper legal education.  Training works best when there is a foundation to start with.  For many prosecutors and judges, you might as well be speaking Greek to them when you start talking about the most basic of legal concepts.  This must change and those leaders in Kosovo’s goverment should start making education more of a priority rather than passing the buck to international organizations.

* * *

In the end, much work is left to improve Kosovo’s judicial system.  But these two reforms are probably the easiest and quickest way to get Kosovo on the road  to an effective and independent judicial institution.