Law School Shouldas

Lately I’ve wished that I’d taken better advantage of being in law school when I was there. I floated through those three years like a ghost. I didn’t make any good friends among my classmates; I didn’t become close to any of my professors; I didn’t join any extracurricular groups, except for the lesbian and gay law student group during my final year, the only year of law school that I was out of the closet, and that group didn’t do much. I managed to graduate without leaving any impression on anyone. I didn’t do a judicial clerkship (although I did intern with a federal judge after my first year), and I didn’t work as a summer associate with a law firm. I had no idea why I was there.

I didn’t particularly like my first-semester classes, which were all mandatory: torts, contracts, civil procedure, criminal law, and legal writing. My torts professor was a joke; my contracts professor taught the concepts in the reverse order (we didn’t even learn the definition of a contract until the end of the semester); civ pro and criminal law were manageable, or at least they would have been without the monkeywrench thrown into the works: my legal writing class. On top of that, the law school was undergoing renovations during that first semester; there was lots of plywood. Every day I had lunch with a group of male classmates in my section, but I was the odd man out, because they insisted on talking about concepts from class, which I had no desire to discuss, or sports, in which I had zero interest. Plus, several of them were married and a few years older than me, while I was only 22 and a closeted homosexual with nobody to confide in.

I asked myself why I’d been foolish enough to go to law school. The reason I went was because I spent the year after college remaining at UVa, working for the university as a temp, with no idea what to do with my life. That Thanksgiving, I went home to visit my parents, and I saw their beautiful, stable house filled with beautiful, stable furniture and their beautiful, stable marriage, while my life felt totally slapdash and directionless. I needed direction. I’d taken the LSAT during my last year of college at the prodding of my parents and I’d done well, and my mom had continued to suggest law school even after I’d graduated college. It finally seemed like the answer, so when I got back to Virginia after Thanksgiving I applied to UVa Law and nowhere else. If I got in, great; if not, no big loss.

I got in, and from the first day it seemed like a mistake.

In November, people started outlining their notes for December’s final exams. Outlining? I had no idea what that was – it seemed like everyone knew so much about law school before they’d even started, except for me. I balked at outlining my course notes; I wasn’t about to do something I’d never heard of just because everyone else was doing it. Instead I studied in my own traditional way. I wound up getting the mean grade in two classes and below the mean in two others. (Legal writing was pass/fail; fortunately I passed.)

It wasn’t until my second semester that I truly enjoyed a couple of classes: constitutional law and a course that profiled particular Supreme Court justices over the course of American history. I got an above-average grade in the latter.

I tried out for the Law Review and one other law journal that spring. I didn’t really want to, but all the other first years were doing it, and I figured that I should probably do it too. The tryout consisted of a writing assignment that was handed out on a Friday and due the following Monday. We received a packet of materials – cases, commentaries, et cetera – involving the existence or lack thereof of a constitutional right to die, and we had to turn in a sample judicial opinion resolving a made-up set of facts. Apparently I didn’t do so well, because I didn’t make it onto the law review or the other journal, even though it seemed like lots of people made it onto a journal.

It wasn’t until my final year of law school, year number three, that I enjoyed a majority of my classes: U.S. constitutional history, voting rights, federal courts, family law (mostly), and “Schools, Race and Money,” about school desegregation and school financing. I received my one law school “A” in U.S. Constitutional History to the Civil War.

(When I got that grade I was thrilled and stunned. I wanted to talk to my professor to find out what I’d done right – and also to get some praise, perhaps, which I’d ached to get from anyone for more than two years. I passed him in the hallway one afternoon and asked, “Professor H—-, are you on your way to your office?” He responded, very coldly, “No, I’m on my way to class.” I was so intimidated that I never followed up with him. He had no idea who I was; I’d never spoken to him before, and that was my one and only conversation with the professor who gave me an A.)

There are some things I truly enjoy about the law. I love constitutional law and constitutional history. I like scholarship. I like reading law review articles about it; I have a few downloaded on my computer that I want to read. I wish I could write one, even though I’m not a professor. I wish I’d had this book in law school.

Sometimes lately I think it would be fun to be a law professor, even if I’d like the research and writing aspects more than the actual teaching aspects. I don’t know if I’m a quick enough thinker to teach law, although it’s always possible that I am and I just don’t know it. And becoming a law professor is hard, I think, although I haven’t fully researched it. I didn’t have a good judicial clerkship or get great grades or anything like that.

I don’t necessarily think law school was a mistake for me, like I used to think. It’s just that I should have waited longer before going; I should have waited until I was out of the closet, and had a better idea of my interests and focus; and I should have applied to schools that might have been better suited to me socially.

Ah, well.

Andersen v. King County

Well, I’ve read the main opinion by the Washington Supreme Court stating that the legislature is empowered to limit marriage to opposite-sex couples. I have to say – although I disagree with the ruling (primarily on the issue of fundamental rights), the three justices who signed onto the main opinion go out of their way to be respectful of gay relationships. (Except for granting them any rights, of course.) This decision is much better written than the recent New York decision, which came out a mere month after oral arguments and appeared to have been a rush job. This decision took 17 months.

Basically, the decision says, “Gay marriage would probably be a good thing, but as judges our hands our tied.” For instance, the court acknowledges that the lack of the marriage option for gay couples can be harmful to them:

We do not dispute that same-sex couples raise children or that the demographics of “family” have changed significantly over the past decades. We recognize that same-sex couples enter significant, committed relationships that include children, whether adopted, conceived through assisted reproduction, or brought within the family of the same-sex couple after the end of a heterosexual relationship. We do not doubt that times have changed and are changing, and that courts and legislatures are increasingly faced with the need to answer significant legal questions regarding the families and property of same-sex couples. …

We are also acutely aware, from the records in these cases and the briefing by the plaintiffs and the amici supporting them, that many day-to-day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples. A married person may be entitled to health care and other benefits through a spouse. A married person’s property may pass to the other upon death through intestacy laws or under community property laws or agreements. Married couples may execute community property agreements and durable powers of attorney for medical emergencies without fear they will not be honored on the basis the couple is of the same sex and unmarried. Unlike heterosexual couples who automatically have the advantages of such laws upon marriage, whether they have children or not, same-sex couples do not have the same rights with regard to their life partners that facilitate practical day-to-day living, involving such things as medical conditions and emergencies (which may become of more concern with aging), basic property transactions, and devolution of property upon death.

In its conclusion, the court states that “given the clear hardship faced by same sex couples evidenced in this lawsuit, the legislature may want to reexamine the impact of the marriage laws on all citizens of this state.”

Some other points:

Washington Supreme Court justices are elected, not appointed. That might have had a bearing on the outcome.

Interestingly, the court states that the plaintiffs didn’t ask the court to consider civil unions or the rights inherent in marriage, but merely to consider marriage or nothing. If that’s true, one can ask whether that strategy was a good one. Still, I’m pretty sure that courts aren’t limited to considering the narrow issue before them, and this court could have ruled for civil unions if it was so inclined. Instead, it appears to have been very cautious.

The opinion singles out the author of the concurrence, Judge James Johnson, four times for criticism. The concurrence is somewhat more hostile in style, and the concurring judge refers to one of the dissenters as “paranoid.” (Judge Johnson also cited a discredited study finding that same-sex relationships don’t last as long as heterosexual relationships; it’s been pointed out that such studies don’t take into account the fact that marriage is not available to same-sex couples.)

In sum: while I’m not happy with the main opinion, at least it’s not mean.

What’s next? The forthcoming New Jersey opinion. Things are not looking good this summer for court-granted gay marriage. Legal strategies are bound to change and focus more on state legislatures, which haven’t been accepting of gay marriage.

At least the decisions of the Washington and New York courts show strongly why a Federal Marriage Amendment is unnecessary.