February already? I’m with Oso on this time thing. It’s just moving too fast. He keeps talking about petitioning the Universe for more of it, but I don’t think that’s ever really going to happen. Maybe I should be proactive and get something going on PetitionOnline.com. I’ve been getting my calendar together in the attempt to actually be organized for once in my life. Every time I look at May and June I start feeling aged: 3 graduations and 1 wedding in the span of 4 weeks. There is nothing like a series of life’s little bookmarks to make you realize how quickly the years go by. One of these occasions is my sister’s high school graduation. My sister was born one week before my eighth birthday, and it has always been her youth that has kept me attached to my own. Now, with college applications, high school graduations and 18th birthdays around the corner I feel as though I’m the one going through life’s rite of passage.
I am half way to a milestone of my own. The second year of law school is infinitely better than the first. The truth is nobody, not even a lawyer, cares about property, torts and contracts — the standard 1st year curriculum. But taking a class on the legislative process with a man like Professor/Father Drinan is the reason I came to law school in the first place. Basically, he was personally ordered by the pope not to run for Congress for a fifth term because his positions were embarrassing to the church. Anyone who can agitate the church to the point of forcing the pope to issue a global proclamation has my eternal respect — and to do it from the inside is even more impressive. There are about a dozen people in the class, which he conducts in a modified version of the traditional Socratic method interspersed with fascinating, quasi-related stories about his life experiences – which he seems to have had more of than the vast majority of people on earth or off it.
So on the first day of class we’re discussing one of my favorite topics – statutory interpretation – and Father Drinan ambles towards me and says,
“Mr. Silberman, since you are first here on the seating chart,” as I nod and quickly sit up in my chair wondering how the guy in the back row could be first on the seating chart, “What do you think of the New York Supreme Court’s decision in Braschi?”
The case is pretty straightforward: two homosexual men had been living together for years in a rent-controlled apartment in NYC, the lease was in Brashi’s companion’s name who passed away, after which the landlord tried to evict the plaintiff. New York City regulations, however, stated that surviving “family” could take over the lease of a rent controlled apartment if the lease holder passed away. So the question: Does Braschi’s relationship fall under the definition of “family.” There are all sorts of legitimate ways to address the question: look up “family” in the dictionary; attempt to discern the intent of the legislature in passing the regulation and decide whether they intended it apply to such situations; look at the modern societal conception of “family” in New York City in 1989 and ask whether this situation comports with such a conception etc. The answer I heard myself defending surprised me even as I said it:
“Well, I think the judge was wrong to force a meaning of “family” on the statute that was clearly not meant by the legislature when they passed it. The courts should not overstep their boundaries of interpretation by imposing their social mores on the rest of society.”
What did I just say? Where the hell did that come from, the Conservative Manual of Judicial Interpretation? Have I been reading too many Scalia dissents? Did I even mean it? As Father Drinan prodded me with further questions I back-tracked and qualified my original position by arguing not that the judge was necessarily wrong to interpret “family” in that way, but that such an interpretation could actually hurt the cause by facilitating a backlash among the legislature that would set back gay rights. But this too was clearly disingenuous. The rest of the day, as I thought about my response it occurred to me why I had been so quick to resort to the modern conservative notions of judicial roles and statutory interpretation: it was easy. It is very easy, in any situation, and especially when on the spot, to say: “well, that’s not the role of the court, “family” means what it means and it don’t mean that.” It is much more difficult to argue the more nuanced alternative: that definitions and societal conceptions are constantly evolving and that what one group of people meant by something a long time ago is not only indeterminate but hardly even worthwhile as anything more than guidance. That two gay men or women share the same bonds of love and commitment as any other people and that they are equally as deserving of the protection of our laws regardless of whether a particular legislature thought to include them in their definition of a “family.” And that the purposes that are behind allowing a widow to take over the lease of the home she has lived in for the last 20 years apply with equal force to the survivor of a relationship that was never officially recognized by society, but that consisted of every aspect of our definition of family.
Shortly after the realization that my response was one of intellectual convenience and weakness under pressure, I decided to look up the actual meaning of “family”. To add to my lack of intellectual legal sophistication, I found that according to dictionary.com even the aforementioned Justice Scalia could not have argued with the ruling of the prescient New York Supreme Court:
fam•i•ly ( P ) Pronunciation Key (fm-l, fml) n. pl. fam•i•lies:
a. A fundamental social group in society typically consisting of one or two parents and their children.
b. Two or more people who share goals and values, have long-term commitments to one another, and reside usually in the same dwelling place.
2) All the members of a household under one roof.