Articles tagged "Bromund Law"

What if something that WAS illegal becomes legal after you were convicted?

by Lisa

March 28th, 2014

If the crime was Marijuana Possession and it happened in the state of Colorado, you might be able to get that mark removed from your record.

The Colorado Appeals Court has ruled that if you were convicted of a marijuana possession crime, which would not be considered under the legal possession amount, you may ask that it be thrown out.

Because there has been a “significant change in the law”, a defendant could be eligible for post-conviction relief!

Click HERE for article.

ARMCHAIR ATHLETES – Video Gamers can now get P1A Visas as Professional Athletes

by Adriana

March 14th, 2014


ARMCHAIR ATHLETES – Video Gamers can now get P1A Visas as Professional Athletes


So you say that video gamers aren’t athletes? The United States Citizenship and Immigration Service would disagree with you, as would a rapidly growing fan base and increasingly well compensated joystick jockeys.


2013 saw a handful of P1A Visas approved for gamers, and you can bet that their numbers will be increasing. P1A Visas are non-immigrant visas which are issued for up to 5 years which allow professional athletes to live, train, and work in the United States. Until now, these visas were exclusively used for traditional athletes like baseball and basketball players. But changes in technology and culture, coupled with creative lawyering, have extended the playing field to the virtual world.


Take, for example, the story of South Korean gamer Kim Dong Hwan, who is a professional gamer in the world of StarCraft 2, according to a recent article on the Huffington Post. (Read the entire article here This young man has earned almost $100,000 in the last three years competing in this game, and is ranked #63 in the world. The World Championship Series for StarCraft tournament last year paid out 1.6 million to the champion.


Gaming is a booming industry. League of Legends, created by a Santa Monica company called Riot, is one such success story. It has been estimated by industry analysts that more than 32 million people worldwide play the game, with half that number coming for the US. Tournaments have filled venues as large as Staples Center in Los Angeles, where approximately 22,000 spectators came to watch the latest StarCraft championship.


This is an exciting new area for immigration law, and the demands for the P1A visa are quite high. Successful applicants need to demonstrate international recognition of their achievements in the field (individually or as a team), must be sponsored by a US employer (most likely a team of gamers), with a few other requirements. Spouses and children can accompany the successful applicant with P-4 visas as well. As with any Immigrant or Non-Immigrant Visas, it is always advisable to speak with an experienced immigration attorney before applying. For more information on P1A Visas, you can visit the USCIS website

No, No Notarios!

by Adriana

February 20th, 2014

no notarioas

California Assembly Bill 1159 went into effect January 2014. It is designed to stop current and potential opportunism related to the possible passage of a Federal Immigration Reform Bill. The California Legislature is justifiably worried about dishonest attorneys, immigration consultants, and so-called “notarios” who prey on the immigrant population by charging immigrants for services they could not yet provide.

AB 1159 cracks down on those con-men who promise to deliver legal status under the new Federal Immigration Reform Act before its passage. AB 1159 puts greater protections in place and punishes false advertising and fraudulent contracts for services which cannot be provided. Additionally, because “notario” translates to “lawyer” in many Latin American countries, unsuspecting immigrants often assume they are getting representation from a lawyer. AB 1159 forbids someone from identifying themselves as a “notario” unless they are an attorney.

The Calfornia State Bar has put together a PSA on the subject, which is available below. If you have questions about immigration or you want help protecting your rights call the Bromund Law Group for a free consultation with an experienced immigration attorney.

Oprima aqui para ver el PSA

Click Here For More Information in English.

You Have the Right to….Do What?

by Matthew Bromund

Principal Attorney
January 23rd, 2014

Know Your Rights

A police officer detains you on the street, starts asking you questions and demanding you produce identification, registration, licenses and other documents to satisfy official curiosity about you.  You might suspect you have certain rights to decline to provide this information but you don’t want to be wrong and end up on the receiving end of the ‘use of force spectrum’ that today’s public safety officers are trained to employ to insure ‘officer safety’.  It is our foremost advice that you do not provide any officer an excuse to use force on you.  Do not enter an aggressive posture, do not use profanity and do not resist any physical force used upon you, no matter how upsetting or unjustified it may be.  Your safety and survival is the first objective of any interaction with police. Our second piece of advice is to remember that, even before you are arrested,

YOU HAVE THE RIGHT TO REMAIN SILENT.  You are not obliged to tell the police who you are, where you are going, where you are coming from, or what you are doing in a public area.  Before the police are entitled to that information, they must suspect you of committing a crime.  Most, if not all, citizens who are later arrested and charged with a crime end up finding that their own statements to police constitute the initial, and occasionally only, evidence against them.  Every single day, I review police reports where the evidence for guilt comes almost exclusively from the statements of my client, the accused.  There is simply no reason for people to talk to the police unless they are a victim of a crime and need their help to apprehend the offender. You might be thinking, “But if I am not a criminal why shouldn’t I talk to the police, even when I am not a crime victim?  Police are there to serve the public and help law-abiding citizens like me, right?”  Your thoughts are correct, if our public servants were angels and not humans.  Police officers are trained to think that their job is the apprehension of criminals and that every person on the street could represent a threat to their life.  The days of the neighborhood beat cop who will leave kids to be kids are long gone.  More importantly, we have had full-time legislatures, both in Sacramento and Washington, D.C., concocting every more lengthy criminal codes making almost any action taken in public potentially illegal.  Since IGNORANCE OF THE LAW IS NO DEFENSE, you cannot assume you are ‘law-abiding’ just because you don’t know whether your activity is illegal.   Fortunately, the courts have established that you do have a right to help you in this situation, if you remember to exercise it:

YOU HAVE THE RIGHT TO ASK WHAT CRIME YOU ARE SUSPECTED OF COMMITTING.  If the officer can’t articulate an answer to this question, then you should be released from any detention and allowed to move on.  You do not have to answer any questions prior to receiving an answer to this question.  (Some exceptions apply, for example, if you are driving, the police have the right to see your license and proof of insurance to determine whether or not you are legally entitled to operate a motor vehicle.)  If the officer tells you what crime you are suspected of committing, then you do have the obligation to identify yourself, produce any licenses or permits that may be relevant to the situation…and nothing else.

YOU HAVE THE RIGHT TO REFUSE TO PERFORM ANY PHYSICAL TESTS OR ANSWER QUESTIONS ABOUT WHAT YOU ARE DOING.  So many people believe that they have to comply with the orders of a police officer and yet there is simply no legal basis to justify this belief.  Police have the power to make orders for public safety (‘Everybody leave this area, there is an armed gunman inside that house.’), to detain a suspected criminal (‘Put your hands behind your back while I hand-cuff you and search you for weapons.’) and to insure their own safety when there is an apparent threat (‘Drop your weapon.’).  They do not have the power to compel you to perform feats of balance, memory or dexterity.  Your participation in any of these is ‘voluntary’ at law, meaning you can say no. To maintain a republic of free citizens, it is critical that the citizenry exercise their rights.  Some are doing so.  Here is a great example, shown in a 3 minute video and analyzed, phrase-by-phrase, for its legal accuracy in the state of Maine.  The rules for behavior apply everywhere:

1.  Be calm.

2. Be patient and remember, police aren’t used to citizens standing up for their rights.

3.  Be silent whenever possible.

4.  Insist on being treated as a law-abiding citizen and do not use physical force to vindicate your rights.

If you do these things, and are later charged with a crime, your attorney will have the best possible case to win your freedom and vindicate your rights.  The Bromund Law Group specializes in representing those charged with crimes in California, especially in Ventura and Santa Barbara Counties.  If you need help with this sort of situation, please do not hesitate to call us at 805.650.1100.

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

This blog offers general insight and opinions and is not intended to address any specific legal case or situation.  Please consult a competent professional before relying upon this blog for your specific situations.

New Developments for Bail Bonds and ICE holds in California

by Adriana

January 16th, 2014

New Developments for Bail Bonds and ICE holds in California

With Immigration reform seemingly stalled in our Federal Legislature, the State of California has taken the lead on some pressing immigration issues on the state level. Assembly Bill 4, which went into effect January 2014, pushes back on the Immigration and Customs Enforcement Agency’s ability to “ICE holds” to force local law enforcement to keep immigrants in custody until they are transferred to Immigration’s custody.

The Legislature has found that ICE holds have been wrongly used to detain both citizens and lawful immigrants without justification. Unlike warrants, ICE holds are not issued by a reviewing authority, and do not need to be supported by any standard of proof, such as reasonable cause. In the past, once an ICE hold was issued, local authorities would not consider releasing the subject of the hold until that person was transferred to Immigration authorities. To read the entire text of the bill, click here :

cuffsThis development means that unless the immigrant has pending charges or convictions of certain crimes, local law enforcement is required to release him/her from custody. This is an exciting development which gives Immigration Attorneys a new tool to use to assist our clients who are being wrongfully kept from their families. This development makes it possible for a detained person to argue for a bond in certain situations, and requires immediate release in other situations.

If you have any questions about how this new law may affect you or a loved one, please do not hesitate to contact the Bromund Law Group for a free consultation.

Provisional Unlawful Presence Waiver

by Adriana

December 24th, 2013

Provisional Unlawful Presence Waiver

Jack Seal of Bromund Law Group

On March 4, 2013 USCIS began accepting a new application for a waiver of unlawful presence, called a 601A. This is definitely a step in the right direction! For those who qualify, it means that you can apply for the waiver while still in the United States, and you can get the approval while still in the United States. For those who are granted the waiver, the trip to their country of origin to be formally admitted will take less than a week.


Before USCIS began changing this process, the applicant would have to travel to the consulate in their home country (Ciudad Juarez in most cases) and apply for admission before they were even allowed to request a waiver of unlawful presence. This often meant that it would take several months, and upwards of a year to have their waiver processed and hopefully be admitted to the United States.


The waiver of unlawful presence is required by most people who are seeking admission to the US (applying for a Green Card in most cases) who have been in the US without permission for six months or more. Current law requires those applicants to wait for several years outside the country (in most cases 10 years) before the US government will allow the applicants to enter. The waiver of unlawful presence is an application for an exception to that rule.


The new application (601A) is only available to immediate relatives of US Citizens. It is limited to those applicants who do not require any other waivers, which are usually required for certain criminal convictions. And like the traditional 601 waiver, it requires a showing of extreme hardship to the applicant’s immediate relatives who are already legally present in the United States.


I have posted a link below to the USCIS website and the instructions for the form, but call today to schedule a free consultation with the Bromund Law Group if you would like to discuss this, or any other immigration issue!


Jack D. Seal

Attorney at the Bromund Law Group

Immigration Reform

by Adriana

December 20th, 2013

Immigration Reform

 white house

The United States’ Senate continues to work out the details of a comprehensive immigration reform bill, currently referred to as the Border Security, Economic Opportunity, and Immigration Modernization Act, and we remain confident that they will get the reform passed before the end of summer. The basics of the immigration reform seem largely unchanged: those unlawful immigrants who were present before the end of 2011 should have a path to legalization. There will probably be requirements that all applicants have addressed all past income tax issues in the US, and there will probably be some sort of financial penalty. The financial penalty will probably be similar to the penalty we saw a few decades ago with the INA 245(i) penalty of $1000.


It looks like applicants will be on some sort of probationary status for an extended period, but will have work authorization and the ability to get a driver’s license. Applicants will be on the path to Lawful Resident status, with the ability to eventually naturalize and become US Citizens.


Many issues have yet to be resolved, and any reform is likely to be accompanied by improved border security which will make it far more difficult to enter the US without permission. There is a renewed push to improve biometric technology at the border, which is a hotly contested (and very expensive) issue.


There will certainly be strict rules for those with criminal convictions. It is extremely important for any non US Citizen consult an immigration attorney if they are facing criminal charges, and perhaps even more so for unlawful immigrants. For anyone who has been in trouble with the law or who has had contact with Immigration authorities, it is a good idea to submit a request under the Freedom of Information Act to examine the records the government has related to the applicant.


Jack D. Seal

Attorney at Bromund Law Group

Nelson Mandela 1918-2013

by Adriana

December 17th, 2013

Nelson Mandela, the revered statesman who emerged from prison after 27 years to lead South Africa out of decades of apartheid, died December 5, 2013. “He no longer belongs to us; he belongs to the ages,” President Barack Obama stated in remarks at the White House. “We will not likely see the likes of Nelson Mandela ever again,” the president said. “So it falls to us, as best we can, to carry forward the example that he set.”


Mandela was the first black President to hold office in South Africa. While in office he dedicated his presidency to dismantling apartheid through tackling poverty and racial inequality. Prior to his presidency, Mandela was an advocate against the apartheid throughout his life. On August 5, 1962 he was jailed and subsequently convicted of sabotage, inciting worker’s strikes, and leaving the country without permission. He used his trial to highlight the racism in South Africa. At the trial, instead of testifying, he opted to give a speech:


“I have fought against white domination, and I have fought against black domination,” he said. “I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal, which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.”


He was found guilty and sentenced to life imprisonment, despite pleas for clemency by the United Nations and World Peace Council. He spent the next twenty-seven years of his life in prison.

In 1990, Mandela was released from prison and in 1994 was elected President. Despite chronic political violence in the years preceding the vote that put him in office in 1994, South Africa avoided a full-fledged civil war in its transition from apartheid to multiparty democracy. The peace was due in large part to the leadership and vision of Mandela and Frederik Willem de Klerk. Although his presidency only last for one term, he dedicated the rest of his life promoting democracy and peace.


Sandra Holzner, Esq.

Associate Attorney Bromund Law Group

Nelson-Mandela’s-Top-Five-Contributions-to-Humanity (1)

Improving a Case Even If You Are Guilty

by Matthew Bromund

Principal Attorney
November 15th, 2013

Guilty ExpressionIf you are ACTUALLY guilty of the crime charged, what can a private defense attorney do for you?  A lot more than you likely think.  After practicing law for more than a decade, I have come to realize something critical about the law as expressed in our court system:  It isn’t a system built around the quest for truth, it is a system built around the assignment of blame.

The quest for truth is part of the mythology of the law, the belief-system that is supported with phrases of terrific ‘truthiness’ like ‘presumed innocent’ and ‘proof beyond a reasonable doubt’ and ‘the truth, the whole truth, and nothing but the truth, so help you God.’  Prosecutors are schooled in these myths and they are enshrined in documents like the National District Attorney Association’s ‘National Prosecution Standards’.  In law school it is treated as an article of faith that justice will result from the sincere invocation of these myths and beliefs.  Reality is far different.  In the real world of charges and cases, obtaining justice requires that a story be crafted and presented that recognizes that the myths of our legal system don’t simply become realized through the invocation of the words.  Instead, the bald facts of a case need to be squared with the motivations that caused those facts to occur.  The consequences of those facts need to be carefully considered by the Defense because, as countless cases have shown me, the Prosecution does not consider all the consequences that flow from their charges.

A quick example:  a woman flees Afghanistan’s gruesome Taliban regime in 2000, before 9/11 and the American political recognition of the horrible situation in that nation.  When she arrives in the USA, she doesn’t qualify for asylum but is convinced she would be killed if she returned.  As a result, she breaks the law to save her life and becomes an undocumented worker in this country.  After 9/11, the political winds change and she is given legal status in the United States.  The facts of her case are unchanged but their meaning is recast in light of our nation’s new orientation against the Taliban.  Her life is still hard and her legal status merely allows her to strive with other legal workers to make ends meet.  The recession of 2008 begins (and hasn’t ended, as far as I can tell from the lives of working people) and her living situation becomes absolutely desperate.  In a scene that could have been cut from Les Miserables, she resorts to stealing food from a store to feed her infirm parents, intending fully to pay for the food in two days when she is paid for her part-time minimum wage job.  She couldn’t receive food stamps as a result of her immigration situation and she had no savings or other resources to rely upon here in the United States.  She is caught, arrested and admits her wrongdoing immediately.

The District Attorney charges her with petty theft, a minor crime that would have no major impact on the life of a citizen aside from paying fines, fees, and needing to comply with the supervision of a probation officer for some span of years.  But she is not a citizen.  She is an immigrant and immigrants are subject to a special set of rules, rules whose violation can result in the immigrant being removed forcibly from the United States, returned to their country of origin, and incarcerated while the immigration court decides if removal is warranted.  In her case, such incarceration would result in the absolute destruction of her parent’s lives since she is the sole provider for them here in the United States.

But the District Attorney isn’t concerned with the ‘collateral consequences’ of a conviction for petty theft.  The criminal justice system considers immigration consequences to be outside their purview and not their concern.  Judges also feel powerless to act since their ability to enter orders providing guidance to the immigration court was specifically taken away by Congress in an earlier age of draconian ‘reform’ of the immigration law.  The Supreme Court of the USA recently attacked this view but no Judge in Ventura County has yet vacated a conviction in recognition of the Supreme Court’s directive.  We have asked, several times, to no avail.

What then is to be done?

With a skilled defense attorney, the situation can be shaped BEFORE the conviction is entered.  By focusing on the intent and ability to repay for the theft, we can arrange a civil compromise, a reduced charge that will not result in removability, and potentially show at jury trial that the facts don’t support a conviction of petty theft.  These outcomes are not guaranteed, in fact, they are often very difficult to obtain.   Our society has the general beliefs that those charged with crimes are guilty, deserve to be punished, and that punishments are too lax to be effective at deterring criminal behavior.  Overcoming those beliefs for individual clients requires the skilled attention of a defense attorney to insure that the whole person is considered by the court.  Only then can justice actually be obtained through our legal system.

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

You have the right to remain silent, but do you have the Ability?

by Matthew Bromund

Principal Attorney
October 30th, 2013

Most people know that when you are arrested the police are required to give you the Miranda warnings before they ask you questions.  Its so much a part of our culture that the warnings on this card can likely be recited, from memory, by just about anyone over the age of 13:

miranda warningYou have these rights even before you are arrested.  You just don’t think about it.  In fact, most people don’t think about it even after police read these rights to them.  That’s because you have heard it so often the meaning has completely vanished and it is just a stream of words, like the Pledge of Allegiance, or the Lord’s Prayer.  (I know all of these mean a lot to many people, but when was the last time you really thought through these words and their meaning?)

In California, you are not required to perform tests (like Field Sobriety Tests), answer questions (like “have you been drinking?” “where are you coming from?” “do you know why I pulled you over?”), or do more than comply with the lawful commands of a sworn peace officer.  When you do so, you are helping the police convict you of a crime.

The police are NOT on a ‘quest for the truth’.  Once they have decided you committed a crime, they are on a hunt for evidence to convict you.  If you are guilty, they don’t need your help; facts speak for themselves.  If you are innocent, your words can make you appear guilty because the police are only listening for the words that support their decision that you committed a crime.  Other words you say will be discounted as self-serving, misquoted to support the theory of guilt, or completely ignored.  Intentionally or not, the police officer will be focused on those things that support a conclusion of guilt.

If you are driving, you ARE required to consent to have your blood drawn, if you want to have a chance to avoid having your license suspended.  This is done under the ‘Implied Consent’ law.   But the police don’t get to take you to have your blood drawn if they don’t have probable cause to arrest you for suspicion of DUI; most of the time it is your words and actions on field sobriety tests, and not your driving, that give the officer probable cause for that arrest.  Of course, implied consent only matters for your driving privilege, for a criminal conviction a different rule applies.

For the crime of DUI, and most other alleged crimes, the police cannot take evidence without your consent or a search warrant.  The new rule on DUI investigations is important, and it is one that the courts in California are going to need years to sort out.  For now, just understand that your rights to personal privacy include your blood, the contents of your home, and the information on your cell phone…if you don’t give the police your consent to access these private items.

In almost all criminal cases, the statements of the innocent defendant make the case for the prosecution.  If the innocent simply remembered to remain silent, to ignore the techniques and threats of law enforcement, and to rely upon their constitutional rights, their liberty would much more often be preserved.


Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney


This post is intended for general information only and is not intended to address your specific situation.  For more specific advice, you should contact a licensed competent professional in your jurisdiction.  This document in no way creates or implies an attorney-client relationship between any reader and the Bromund Law Group or Matthew Bromund.  If you require specific legal advice in California, please do not hesitate to contact the Bromund Law Group at 805.650.1100.

The ‘Harvey Waiver’ or ‘How You Can Be Responsible for Paying Restitution for Charges You WEREN’T Convicted Of”

by Matthew Bromund

Principal Attorney
October 15th, 2013

Sometimes clients of mine will be charged with several crimes, all in one complaint.  At the BLG, we always start from the presumption of innocence and spend our first phase of casework developing the reasonable doubt necessary to secure either a dismissal of the charges or an acquittal (Not Guilty verdict) at trial.  We never deviate from that posture, even in the face of serious charges or an offense that some may believe represents an indefensible offense (DUI, Red Light Camera Violation, even Parking citations have all been successfully defended by our firm).   Sometimes, however,  the evidence is compelling, and an effective defense doesn’t appear available on either legal or factual grounds.  In those circumstances, it is necessary to work on a guilty plea resolution.


When the complaint includes multiple offenses, the resolution often lies in having the client plead guilty to just one charge but entering a ‘Harvey Waiver’ to address the other charges.  A Harvey Waiver allows that restitution may be imposed on dismissed counts if the plea is freely made, the court approves all conditions, and the offender files a Harvey Waiver. (People v. Beck (1993) 17 Cal.App.4th 209, 215. See also, Penal Code section 1192.3.) Under a Harvey Waiver, the offender is required to pay restitution on all counts connected with the plea. Restitution orders are to be imposed based on the victim’s losses and benefits paid by the Victim Compensation Program.  You can read about their views on that process here.

Oftentimes, entering a Harvey Waiver can create the ability for us to fashion a guilty plea that preserves important post-conviction opportunities by satisfying the District Attorney that the victims of all the alleged crimes will be compensated while allowing our client to only accept one conviction on their record.  For example, for a non-citizen charged with a crime, a Harvey Waiver resolution can preserve admissibility under the immigration laws of the United States or keep a client from becoming deportable.  Additionally, being convicted of only one crime can sometimes keep a client eligible for probation, which will make expungement and other rehabilitive relief feasible down the road.

In all cases, taking the case from charge to full completion requires a legal mind that is both perceptive and wise since the first option may not always be the best option.  After all, the best batters don’t always swing at the first pitch!

This blog discusses matters of general legal knowledge and is not intended to in any way advise any person as to their specific legal situation.  If you, or anyone you know, is facing a legal case requiring consideration of these issues you should additionally consult a qualified professional, licensed in your jursidiction, to advise you properly.  In no way does reading this blog constitute the formation of an attorney-client relationship between yourself and the BLG.  Please feel free to contact the BLG if you have questions about this blog or any other legal issues in California. 

The Limits of Courts to shape the Constitution: DOMA

by Adriana

July 15th, 2013

Welcome to the Bromund Law Group’s law blog. Here we will be sharing the thoughts and analysis of Bromund Law Group attorneys on legal issues of the day and significant concepts relating to the law in the United States. We have four lawyers in this firm now and each one of us has our own unique perspective on the law. In a Republic, that is entirely to be expected, and I hope the reading public will join in on this discussion to make our blog a forum for active citizenship. While we are all advocates for our clients first and foremost, we are also active citizens committed to making ours a ‘more perfect union’.

The first topic for discussion is the Defense of Marriage Act and the recent Supreme Court decision declaring that Congress lacked the constitutional authority to pass this law. The Supreme Court’s action, as noted by Justice Scalia in his dissent, moves the power of judicial review into the arena of cases where there is no controversy between the parties to the lawsuit. (In the DOMA case before the Supreme Court, both parties to the lawsuit agreed that DOMA was unconstitutional.) This is dangerous as it makes the Supreme Court into a ‘super-legislature’ able to declare laws unconstitutional even if there is no controversy between litigants.

Why does this matter? We don’t elect the justices to the Supreme Court and we do not have any means of limiting their power to govern us if their authority sweeps out to embrace any question of constitutional significance. For this reason, the Constitution explicitly limits the federal judicial power to adjudicating cases and controversies, not reviewing all laws and regulations. If this extension becomes accepted, we lose the ability to govern ourselves and instead hand over our sovereignty to the bare majority of judges appointed for lifetime terms.

Please note that this opinion does not address the subject matter of DOMA. I am no homophobe, nor do I have hate in my heart for anyone’s consensual expression of love between adults, so please do not jump to that conclusion. My view is that of a lawyer, focusing on how the means of resolving important questions affects our ability to be self-governing. In that sense, the Supreme Court did violence to the Constitution in this decision, and thereby harmed our republic’s ability to be ‘of the people, by the people, and for the people.

Here’s an excerpt from his dissent: In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

For me, I entirely agree with Abraham Lincoln, who (in reference to the horribly evil Dred Scott decision) said, “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

And, in case you were curious, I think that the word ‘marriage’ ought to be one that has a social meaning only. I believe that the legal status conveying benefits of inheritance, tax status, and community estates, ought to be ‘legal union’ or ‘domestic corporation’ and that such a term ought to be open to any combination of consenting adults. In the 21st century, I don’t think we have a society of such moral homogeneity that it is appropriate to impose upon all citizens the views of the modern Christian faith (one man/one woman, unified for life until one or the other of them decised to terminate the relationship at their discretion and with the payment of fees to a state court).

Since ‘traditional marriage’, as opponents of same-sex unions promote, is, in fact, the law nowhere in the United States. Traditional marriage is one man-one woman-till-death-do-you-part. Such a standard is the law nowhere.

In a nation with my views, ‘marriage’ would become a term like ‘dating’, ‘in a relationship’, ‘friendship’, or (for some) ‘brother’ or ‘sister’ insofar as it is up to the people using the term to assert its application to their relationship confidently and NOONE has the right to naysay them defining their relationship for them. The nations would only have a right to give benefits, or not, for relationships that the parties elect to submit to the requirements of the state, namely that of licensure and a mandated process for dissolution. I think such a change would be a LOT healthier for our republic.

But we won’t be going that way, even if it happened that the majority of people happened to decide my ideas of how to found the legal instutions conveying benefits for social relationships were adopted. Instead, as a result of our continued shrinking sphere of legislative responsibility for Congress and the states, we will need to await the Supreme Court’s decision to enact this policy change (or any other) according to their sense of what the Constitution means at that time, to them. That doesn’t strike me as self-government.

My worry is that every time the Supreme Court moves the society forward (Brown v. Board, Roe v. Wade, DOMA, etc.) it makes our political branches less responsible for progress and our Republic less self-governing. Congress used to be the forum for our civil liberties expansion (Alien and Sedition Act debate 1797-1801, Civil Rights Act of 1864, the abolition of slavery, the extension of the franchise to women, Prohibition and its Repeal) but as the Court has extended its reach since the 1930s, Congress has become ever-pettier and our civics ever-more impoverished. Lawyers alone cannot govern a nation.

When we try to, we occassionally get it horrifically wrong. Don’t think so? Let me refer you to a few of the Supreme Court’s Greatest Failures:

Plessy v. Ferguson (1857) (Plessy v. Ferguson discussion by PBS) wherein the Supreme Court declared that, “Negroes have no rights, which the white man is bound to respect.” It didn’t cause the Civil War but it did make certain that, even after 600,000 people died to free a race of people from the bonds of slavery, the law would continue the evil lie that ‘all men are created equal’ didn’t include people whose physiognomy included enough melanin to make them appear darker than a person whose forebears came from the North of the North African coast of the Mediterranean Sea. (I have serious biological basis for what people socially identify as a race, so if my phrasing is awkward its because I don’t happen to believe the terms ‘White’, ‘Black’, ‘African American’, etc. are of any useful descriptive quality.)

Muller v. Oregon (1908) wherein the Supreme Court decided it would authorize the government to regulate the working hours of women on the basis of racial welfare. “The physical wellbeing of women becomes an object of public interest and care in order to preserve the strength of the race.”

Kelo v. New London (2005) wherein the Supreme Court decided that the authority of the government to seize private property for public use, paying the owner the current market value of the property, could be employed when the ‘public use’ consisted of selling the land to a private entity for commercial development that would generate more tax revenue for the state. This extension of the ‘takings’ power of the government makes the power so great as to render private property rights irrelevant in the face of a wealthy party who extends a bribe to the public purse to consume someone else’s land. Before this, a private entity had to engage in a voluntary exchange with another private entity to acquire title to land, thereby leaving each of us secure on our own land unless some public need (road, aqueduct, etc.) was apparent. Now, your rights are only secure until someone bribes the government to condemn your land and transfer it to their use.

Lone Wolf v. Hitchcock (1903) wherein the Supreme Court decided the “plenary power” of the United States Congress gave it authority to unilaterally abrogate treaty obligations between the United States and Native American tribes. The decision marked a departure from the holdings of Cherokee Nation v. Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832). Given how completely horrible our nation’s history is at fulfilling the treaties even before abrogation, it is shocking to see the Supreme Court go the ‘extra mile’ to make a ‘dependent domestic nation’ into a legal non-entity for no apparent reason.

The Supreme Court writes well, most of the time. It provides a final resolution for lawsuits. These two attributes are useful for our Republic and deserve to be honored and respected.

But it is no fortress of righteousness or bastion for the protection of liberty or self-government. Its actions over the last century have consistently reduced the scope and responsibility of our representative branches of government; and we should arrest that development if we hope to retain our rights under the Constitution our forebears drafted and ratified.