Monday, November 12, 2012

Beyond Washington, Maryland and Maine: New Battleground States for Marriage Equality

Well, it indeed became official late last week that Washington state's referendum on marriage equality was in fact a win for marriage equality. Washington will thus be included with Maine and Maryland as the first three states to approve gay marriage by a popular vote, rather than strictly through legislative or judicial action.  They all did so in this November's elections. These three new states will now join the six other states (Massachusetts, Connecticut, New Hampshire, Vermont, New York and Iowa) and the District of Columbia as jurisdictions where gay and lesbian couples may marry.  New battleground states to watch, according to Queerty: New Jersey, Rhode Island, Illinois, Oregon, and Delaware.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Wednesday, November 7, 2012

Voters in Maryland, Maine and Washington To Approve Gay Marriage

Well, it seems to have happened.  All three of the states - Maryland, Maine and Washington - where same-sex marriage ballot initiatives were voted on yesterday, appear to be creating the right of same-sex marriage.  They join six other states (Massachusetts, Connecticut, New Hampshire, Vermont, Iowa, and New York) for a new total of nine states, plus the District of Columbia, where gay and lesbian couples may now marry.

(The vote has not yet been officially announced in Washington state, but is expected to come soon.)

These new states will be the first to create marriage equality through a popular vote, rather than through judicial or legislative action.  Three states, including our own Massachusetts, as well as Connecticut and Iowa, have judicially-created gay marriage.  The other three states, Vermont, New Hampshire, and New York, have legislatively-created gay marriage.

No doubt popular support for gay marriage equality is growing.  I continue to hope that family law scholar Joanna Grossman was right when, early this year, she optimistically foresaw, as her article title itself (following link) suggested, "the beginning of the end of the anti-same sex movement."  Indeed, another hopeful sign, from yesterday, was that Minnesota's voters rejected the ballot initiative there which called for a state constitutional amendment limiting marriage to the traditional, heterosexual marriage between a man and a woman.

I fear, however, that I may also be right in my own more pessimistic response that although progress is real, it is likely to continue to be rather slow.  (Here I am reminded of one of my favorite George Orwell quotes: "Progress is not an illusion, it happens, but it is slow and invariably disappointing.") Just as there will be a few states moving in the direction of equality, I believe there will continue to be, for many years, a large majority of states where social conservatives stubbornly refuse to recognize gay marriage.  After all, we're still only up to 9 states plus D.C..  That leaves 41 states without gay marriage, many of which already have bans on gay marriages. And of course we are still living with the federal statute (the Defense of Marriage Act).

Stay tuned.   The U.S. Supreme Court will surely weigh in soon on at least some of the issues presented by the laws for and against gay marriage.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Friday, November 2, 2012

Massachusetts Pets Now Included in Custody and Abuse Protection Orders

Over this past summer, the Massachusetts legislature passed a bill, which the Governor signed into law, that provides for the inclusion of pets in custody and abuse prevention orders.  See the recently issued Massachusetts Trial Court memo here.  I blogged about pets in restraining orders five years ago (No Longer Mere Chattel: The Rising Status of Pets in Family Law) when it was still a relatively new thing, and there were only a handful of states with such laws.  Since then, the total, not including the latest addition of Massachusetts, has risen to at least 22 other states, plus D.C. and Puerto Rico.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Thursday, October 25, 2012

Romney's Testimony in Stemberg Divorce Unsealed

Well, folks looking for a big October surprise from our state's family court may be disappointed.

This morning, according to the Boston Globe, the Norfolk County Probate and Family Court ruled that the Romney testimony in the Stemberg divorce will be unsealed.  Now it is up to the Boston Globe - which brought the litigation to report on the upcoming election - to examine the record of that testimony and tell us what, if anything, it reveals.  The confidentiality agreement between the parties to the divorce, which the former Mrs. Stemberg's attorney Gloria Allred tried to lift so she could talk about Romney's testimony, remains in place.   Allred and her client were trying to piggyback on the Globe's initial request, which included a lifting of the gag order as well as the unsealing of the testimony, but then the Globe dropped its request to remove the gag order when it was clear the testimony would be unsealed.

Gloria Allred and the former Mrs. Stemberg, who actually supplied the documents themselves as the court no longer had the two-decades-old transcripts, accused the Boston Globe of a "double cross" and will now have to petition separately for the lifting of that gag order.

There's likely no big story here, as today Mr. Stemberg rescinded his objection to the unsealing of the testimony (Romney had already stated no objection to the unsealing yesterday, but he was probably doing something of a piggyback of his own on Stemberg's objection at the time).  As this morning's proceedings, and the rescinding of the objection, occurred after Stemberg and Romney (and Staples) had been given time to review the testimony, it appears that Stemberg and his buddy Romney now see nothing in that testimony worth the political cost of continuing to object.  Furthermore, Gloria Allred herself suggested (see below), that her client needs to be allowed to speak in order to put the testimony into "context" or otherwise the testimony will not be meaningful to the public.

And to that I say, calling to mind a fine legal phrase: res ipsa loquitur...not!
The Globe originally moved to amend the confidentiality agreement to allow parties in the case to speak publicly about Romney’s testimony but dropped the request on Thursday, when Stemberg — who had opposed the Globe’s request to unseal the testimony — rescinded his objection.
Allred argued vigorously for Sullivan Stemberg’s right to address Romney’s testimony publicly, saying Sullivan Stemberg was being denied her First Amendment Right. 
“Out of context, [the testimony] has no meaning for the public,” Allred said. “She can put it in context.”The court ruled that because the Globe was no longer petitioning to modify the confidentiality order, and was satisfied by the release of Romney’s testimony, that Sullivan Stemberg would have to bring a separate motion to amend the order. 
Allred indicated that she would do so and after the hearing accused the Globe of a “double cross” because the paper stopped its push to amend the confidentiality order.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Wednesday, October 24, 2012

An October Surprise for Mitt out of Mass. Divorce Court?

Tomorrow morning there may be some interesting drama in one of Boston's family courts where I regularly practice, the Norfolk Probate and Family Court, involving sealed testimony by Mitt Romney, apparently given in support of his friend, former Staples CEO Tom Stemberg, during his divorce.   The ex-wife, represented by celebrity lawyer Gloria Allred, is reportedly here to tell the judge her client doesn't object to having the testimony unsealed.  

If this is just about Mitt's testimony that Tom Stemberg was a good father, we probably don't have much of a story.  On the other hand, if TMZ's reports are true that Mitt also falsely testified under oath that Staples was worth virtually nothing to aid his friend in misleading the court in order to reduce a payout to his exwife, then we may have a real story, an October surprise of sorts.

This may be the most excitement we have seen in the Norfolk Probate and Family Court since Bobby Brown's arrests here for contempt on child support arrears.   (I don't count the matter of the other Massachusetts Presidential candidate, John Kerry, who tried unsuccessfully, in 1995, to seal records here of his 1988 divorce to his first wife, as the facts of that case are rather boring.)

If TMZ's report about Mitt is accurate, and his testimony becomes unsealed, this could be significant news.  As we all know, from the most recent Clinton and Bush terms, a President's lying to Congress, the American people, and the United Nations about reasons for going to war is one thing.     But lying under oath before becoming President, in a deposition or trial, in a private civil case, such as a divorce or sex discrimination suit, is quite another.  It's absolutely unthinkable and disqualifies one from the very important job of lying about wars with absolute impunity and immunity.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Monday, October 22, 2012

Second Circuit Joins First in Striking DOMA

The Second Circuit Court of Appeals in New York just became the second of the intermediate-level federal appeals courts (circuit courts) to find the Defense of Marriage Act (DOMA) unconstitutional.   The first was our First Circuit Court of Appeals here in Boston back in May of this year.   The Second Circuit decision, which found the federal statute to be an unconstitutional violation of equal protection under heightened scrutiny (the "intermediate level scrutiny" for "quasi-suspect" classifications), is the most likely case on gay marriage to reach the US Supreme Court.  

Two other same-sex marriage cases likely to reach the Supreme Court are the First Circuit decision in Boston also striking down DOMA, and the Ninth Circuit decision overturning California's ban on gay marriage out there. 

For a short explanation of this Second Circuit case, with some discussion of related federal court decisions, see David Kemp's The End of an Unjust Law: The Second Circuit Strikes Down DOMA and Sets the Stage for Supreme Court Review.  Also see the New York Times article for an overview.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Wednesday, August 8, 2012

Mommy Wars, Daddy Wars, and Having it All

From the time I heard Anne-Marie Slaughter's interview on NPR, back in late June, and found my Atlantic Magazine copy waiting for me in my office later the same day, there with the by now much-ballyhooed article, Why Women Still Can't Have It All, which she had just discussed with Terry Gross on air, I have been thinking quite a bit about the issues raised.

I thank her for her provocative contribution to the dialogue among the chattering classes on issues of gender roles, feminism, motherhood, and fatherhood.   I must say, however, that I reacted to her article much as I did to the seminal work of Betty Friedan upon my first encounter with it back in college: I appreciated its historical contribution, but its focus seemed too bourgeois for someone with my more radical sensibilities.

I have since enjoyed reading and learning from many of the varied reactions to that Atlantic Magazine article.  Two of my favorites, which I will pass on without comment, are The Daddy Wars, by Jessica Valenti, and Why Can't All Parents Have More, by KJ Dell'Antonia.

Monday, July 9, 2012

Too Big to Jail

Here's the link to a great read I recently downloaded for my kindle: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful, by Glenn Greenwald.  You can read a sample chapter there for free.  A former litigator and now journalist with, Glenn Greenwald tells the recent story of how many of the biggest criminals on Wall Street are too powerful to be prosecuted.  

The book itself is the latest chapter in the ongoing class warfare saga of these United States, or what I like to call generally Justice for the Rich (one of my topics/labels for blog posts here).  Glenn Greenwald's book is mainly about the recent failure of our government to prosecute the biggest criminals on Wall Street, or the problem of - to use a title of one of the actual chapters of this book -  "Too Big To Jail."  That is to say, while big financial institutions are deemed "too big to fail," the leading banksters in charge of them are similarly just too big and powerful to be jailed. 

I heard Glenn Greenwald on NPR today, but the Democracy Now! interview, "Zero Accountability": Glenn Greenwald on Obama's Refusal to Prosecute Wall Street Crimesis more informative.  Glenn is one of at least two Greenwalds active in the political and journalistic arena and in it for the right reasons, to seek truth and justice.  The other is Robert Greenwald, whose documentaries I have often mentioned here on my blog.  I wonder if these two Greenwalds are related.   In any case, I have no personal connections to either and get nothing for this plug other than the satisfaction of passing on a good read.

Sunday, July 1, 2012

The President We Really Need

Dr. Jill Stein, Green Party Presidential Candidate, from Massachusetts, is the only Presidential candidate who is speaking the truth about Obamneycare and is talking about a real solution to the health care crisis: a single-payer system: Romneycare and Obamacare are class warfare and failures, says Stein; calls for "real solution" of Medicare for All.

She is the President we really need.  I am, however, about 100 percent sure we will instead get the one named Obamney.

Last election, my vote, and my campaign contribution, went to Obama.  This year, my contribution has already gone to Dr. Jill Stein and my vote will follow.   This year, I cannot bring myself to vote for the Demopublican over the Republicrat.   Each principal party candidate has now proven by his actions - despite what he may have said, or may now say, to get elected - that he is steadfastly in support of unnecessary and immoral wars, that he is shamelessly in favor of lavish corporate welfare and bailouts to the rich elite who regularly and legally steal from the rest of us, and that he will obsequiously kowtow to Wall Street and big corporations and continuously pretend to serve the public interest without actually doing so.

In this year, as in all national political election years, I am especially mindful of the eternal truth in George Orwell's statement that political language is "designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind."

Thursday, June 28, 2012

Obamneycare Upheld by SCOTUS Today

Obamneycare was upheld by the US Supreme Court today. While many of my fellow "liberals" applaud this result, I am mostly just sorry that this Heritage Foundation idea, first brought to fruition here in Massachusetts by Romney to protect the usual suspects, will continue to be viewed, due to Obama's unfortunate support of this, as a Democratic idea.

Thanks especially to the horrible mandate - already proven to be a disastrous failure here in Massachusetts - middle income people will be screwed by this terrible regressive law which will protect the interests of the bloated medical and pharmaceutical industries and the medical insurance racket at the expense of 99 percent of us.

Yes, some will benefit from the few good provisions such as that which prohibits denials for pre-existing conditions. But as Howard Dean has rightly said, it would have been better not to pass this law at all, as overall it is worse than the horrible system we had before it.

Meanwhile, true progressives, and conscientious physicians, await the only real solution: a single-payer system.  Yet the cynic in me thinks that more likely we will see Obamneycare morph instead into an even more regressive disaster for the vast majority of us, both poor and middle income.  I hope I am wrong.

Wednesday, June 6, 2012

9th Circuit Panel's Strike-Down of Prop 8 Will Stand

The Ninth Circuit Court of Appeals, in California, decided on Tuesday not to have a rehearing, by a larger en banc panel of that court, on the Proposition 8 case earlier heard by its 3-judge panel, which struck down the voter-enacted ban on gay marriage on equal protection grounds.  That means that gay marriage proponents have won for now, and that Proposition 8 backers will be attempting to take this up to the US Supreme Court.

It is not certain the US Supreme Court will review that case, however.

It's more likely the Supreme Court will hear the First Circuit case from here in Boston that just found DOMA unconstitutional.  But it's also possible the Supreme Court will elect to hear both cases (see constitutional law expert Erwin Chemerinsky's comments in the excerpted article below).  We shall see.

Meantime, there will be no gay marriage yet in California, as despite this final word from the Ninth Circuit in its favor, the mandate will be stayed until final disposition of the appeal to the US Supreme Court.  Here's my excerpt from the excellent article from's The Recorder:

The order denying rehearing leaves in place the court's February 2-1 ruling striking down the ban on equal protection grounds. The majority, led by famously liberal Judge Stephen Reinhardt, said the voter-enacted initiative served no purpose other than "to lessen the status and human dignity" of gays. 
Only four of the court's 25 active members publicly backed rehearing the case before an 11-judge panel. Three of them issued a short yet blistering dissent. "Based on a two-judge majority's gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia," wrote Judge Diarmuid O'Scannlain.  
"Even worse, we have overruled the will of 7 million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it." Judges Carlos Bea and Jay Bybee joined him.  
Judge N. Randy Smith, who dissented in February, also wanted the case reheard. O'Scannlain's three-paragraph "dissental," as judges on the court call them, opens by pointing to the media "firestorm" President Obama created with his recent announcement supporting same-sex marriage. "Drawing less attention, however, were his comments that the Constitution left this matter to the states and that 'one of the things that [he]'d like to see is that [the] conversation continue in a respectful way,'" O'Scannlain wrote. "Today our court has silenced any such respectful conversation."  
Judge Stephen Reinhardt and Senior Judge Michael Daly Hawkins, who joined him in the panel majority, fired off a single-paragraph response. "We are puzzled by our dissenting colleagues' unusual reliance on the president's views regarding the Constitution, especially as the president did not discuss the narrow issue that we decided in our opinion," the two Democrat-appointees said. "We held only that under the particular circumstances relating to California's Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage." 
Indeed, Reinhardt's panel opinion, leaning heavily on Romer, was painstakingly tailored to California. "Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only," Reinhardt's panel opinion said. "It stripped same-sex couples of the ability they previously possessed to obtain from the state, or any other authorized party, an important right — the right to obtain and use the designation of 'marriage' to describe their relationship."  
O'Scannlain's short dissent didn't go into the merits, but called Smith's February dissenting opinion "excellent." All four dissenters are Republican appointees.  
The Ninth Circuit's denial of en banc review means Perry could very well be on a similar track for Supreme Court review as a Defense of Marriage Act challenge that was before the First Circuit. A three-judge panel of the Boston-based court last week rendered unconstitutional the provision of DOMA that denies federal benefits to same-sex couples.
Some think a DOMA challenge would be a more likely candidate for high court review since it's a challenge to a federal statute, not a state voter initiative, and since plaintiffs in the Prop 8 case are asking for a far more sweeping ruling — one declaring marriage a fundamental right.  
"I would not be surprised to see the Supreme Court take both and have them both briefed and argued (as it often has done)," UC-Irvine law school Dean Erwin Chemerinsky wrote in an email. He noted the court often takes cases on related topics and has them handled "in tandem," where they would be briefed on the same schedule, argued the same day and decided in separate opinions. On the other hand, he said, the Prop 8 opinion is narrow in that it's limited to a state that granted a right and then rescinded it whereas the DOMA case, Gill v. Office of Personnel Management, strikes down a federal statute. 
"The court always is inclined to take a case where a federal law is struck down."

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Thursday, May 31, 2012

First Circuit Finds DOMA Unconstitutional

The First Circuit Court of Appeals in Boston found DOMA unconstitutional today.  But enforcement of this federal court of appeals ruling - which would extend the federal economic benefits denied by DOMA to gay couples - will have to await a decision by the US Supreme Court.   The First Circuit's decision is here.  For a good summary, see Ruthann Robson's blog.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Friday, March 23, 2012

Boston Globe Calls for Task Force to Study Child Custody Reform

I couldn't agree more with this suggestion from the Boston Globe that the governor or legislature convene a task force to explore child custody reform proposals. It's way past time for a serious consideration of reforms in our custody law to level the playing field for fathers, who have been treated unfairly for so many years, and whose children have suffered as a consequence.

The recently enacted alimony reform was a very real victory for gender equality in Massachusetts.  This victory has more than a few of us dads (and others who care about dads and their children) thinking about the possibility that we might finally reform our child custody laws as well.   As with alimony reform - which I supported long before it became popular - I have also gone on record, long ago here, in favor of a shared child custody presumption (see my first, second, and third posts on this issue from 2008).  I am not going to get too excited too soon, but I am very encouraged by the sight of this opinion piece in the Boston Globe.  Who knows? Maybe equality is contagious.

We have lived far too long with the "best interests of the child" standard not to finally implement laws and procedures that will fully give life to that standard as the true test, not just in theory but in practice.  While the "best interests of the child" has long been the legal standard - on paper - in practice that standard has proved vague enough to be undermined far too often by traditional, patriarchal and/or downright anti-male attitudes that earlier accompanied the now-extinct "tender years doctrine" and which attitudes have stubbornly persisted.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Tuesday, February 7, 2012

9th Circuit Panel Finds California's Gay Marriage Ban Unconstitutional

Well, here's the decision from the 9th Circuit out in California, released as expected today.  The three-judge panel affirmed the lower federal court's decision finding Proposition 8 unconstitutional.  See the AP article on this here.   

After reading the decision (and dissent) just then, I concur with Barry Deutsch, who opines here that this ruling is likely to survive scrutiny by the US Supreme Court because it was decided on narrow grounds.   It does not in fact declare that the US Constitution grants a right of gay marriage.  

The narrow issue actually decided was, as Barry Deutsch put it: "Can a state pass a special law to eliminate an already-existing right for same-sex couples to have the legal designation 'marriage' applied to their relationships, when the state otherwise makes no legal distinction between same-sex and opposite-sex relationships? And the Court’s answer is no.But this is not over yet, so stay tuned. Here's the gist of the AP article:
SAN FRANCISCO—A federal appeals court on Tuesday declared California's same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for a likely appeal to the U.S. Supreme Court.  
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution and Supreme Court precedents when he declared in 2010 that Proposition 8 -- a response to an earlier state court decision that legalized gay marriage -- was a violation of the civil rights of gays and lesbians. 
However, the appeals court said gay marriages cannot resume in the state until the deadline passes for Proposition 8 sponsors to appeal to a larger panel of the 9th Circuit. If such an appeal is filed, gay marriages will remain on hold until it's resolved.  
"Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted," the ruling states.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

The Latest on Gay Marriage - California, Washington and the Nation

Folks interested in gay marriage issues, particularly those living in California, are awaiting the 9th Circuit Court of Appeals' decision, expected to be released today, which will reveal its three-judge panel's opinion on whether Proposition 8 (the ban by voters on gay marriage in the state of California) is constitutional, specifically whether the lower court's opinion against the Proposition will stand.  If the lower court's decision is affirmed, the supporters of the ban plan to appeal to the entire panel of the 9th Circuit and then to the US Supreme Court if necessary.  Check out the AP story, as appears at

And there is yet more news on the West Coast. Law prof Joanna Grossman has another interesting article, this one mainly about the gay marriage legislation just passed by the state senate in the state of Washington, and which is expected to be passed soon by the house and signed by the governor there, and which would make Washington the seventh state (after Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York), along with the District of Columbia, where gay marriage has been created and legalized either by legislative or judicial action.

In Washington, this legislative action is unique, as Grossman points out, in that "it will be the first time, since the beginning of the modern same-sex marriage controversy, that a state legislature has reversed itself, moving from a statutory ban on same-sex marriage to a statutory authorization" and it will have all happened in a very short time. For more about these recent developments in Washington, and for a brief summary of the developments in the recent, nine-year-long history of gay marriage in the United States, see her online article, The Beginning of the End of the Anti-Same-Sex-Marriage Movement .

Grossman's optimism, in believing as she does that "same-sex marriage is an inevitable, eventual reality" is understandable, given this and other recent developments. She explains how the Washington state legislature did a rather quick about-face in favor of gay marriage, and sees that as a sign that views around the country are changing quickly and that "even deeply entrenched opposition may dissipate sooner than we thought." She notes that same-sex marriage bills are working their way through legislatures in other states, including those of New Jersey and Maryland.

I once shared her optimism, but now I have my doubts. Any suggestion that the six, soon-to-be-seven, states, plus the District of Columbia, will quickly grow in number to include most or all of the other 44 (soon-to-be-43) states where gay marriage has not been legalized, is wildly optimistic. It is far too easy for those of us who live in New England and New York (home to all but one of the current same-sex marriage states) to be out of touch with what is going on in the more conservative regions of the South and the Midwest, and indeed the vast expanse of the country. I tend to think we are going to continue to have, for the foreseeable future, a vast majority of states that are, as they have been, consistently and obstinately unfriendly to same-sex marriage, while a very small number of new states warm to the idea.

Gay couples are a very small minority of households, even in Massachusetts. In the more conservative states, where the religious right or at least conservative social values hold sway, the small minority of gay couples and their liberal and libertarian supporters are likely to continue to be drowned out by the louder, and stronger, voices of the more socially conservative majority. If you've read this far, you might find interesting as I did these numerous charts showing the demographics of same-sex couples in the US, derived from the latest (2010) US Census.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Sunday, January 29, 2012

SCOTUS Says Cops Need Warrant for GPS Trackers

At the US Supreme Court, sometimes they all get it right on a truly important issue, as they did on Monday: Justices Rein in Police on GPS Trackers (Wall Street Journal). See the court's opinion and the two concurring opinions in the court case here.