JURIST - Paper Chase: Saturday, February 25, 2012

[JURIST] Lawyers for the Bipartisan Legal Advisory Group notified the US Court of Appeals for the Ninth Circuit [official website] on Friday that they plan to appeal the ruling earlier this week in the US District Court for the Northern District of California [official website] that the Defense of Marriage Act (DOMA) [text; JURIST news archive] is unconstitutional [JURIST report]. House Speaker John Boehner, Majority Leader Eric Cantor and Majority Whip Kevin McCarthy [official websites] of the advisory group are pursuing the appeal [AP report]. The advisory group's two Democratic members, Minority Leader Nancy Pelosi and Democratic Whip Steny Hoyer [official websites], are not joining the GOP members in the appeal.

The district court's ruling is the most recent development in the debate regarding the constitutionality of DOMA and its repeal. The US Senate Judiciary Committee [official website] voted to repeal DOMA [JURIST report] in November, marking the first time a Congressional group has voted to repeal the law banning federal recognition of same-sex marriage. In a similar case this past October, a disabled Navy veteran filed a notice of appeal [JURIST report] with the Court of Appeals for Veterans Claims [official website] for denying her partner a share of her disability benefits under DOMA. The Department of Veterans Affairs [official website] allegedly told the veteran she could not receive benefits because her spouse was a woman. In March 2011, congressional Democrats introduced the Respect for Marriage Act [text], which was intended to repeal DOMA [JURIST report], but it has not yet passed. The Congressional action follows an announcement from US President Barack Obama last year that he would continue to fight for the repeal [JURIST report] of DOMA, and last year's announcement by the US Department of Justice (DOJ) [official website] that it will no longer defend the constitutionality [JURIST report] of Section 3 of DOMA in court cases challenging the provision.

[JURIST] A judge for the US District Court for the District of Columbia [official website] dismissed [opinion, PDF] a suit on Friday from the Electronic Privacy Information Center (EPIC) [advocacy website], a consumer privacy group, asking the Federal Trade Commission (FTC) [official website] to block Google's [corporate website] proposed privacy policy changes [text]. EPIC brought suit against the FTC earlier this month [JURIST report]. The new policy allows a user's information to be shared among different Google products, including YouTube, Gmail, and Google Maps. EPIC alleged that the changes to the privacy policy were in violation [EPIC materials] of a consent order [JURIST report] between the FTC and Google in October over a breach of consumer privacy rights and misleading consumers during the launch of Google Buzz, a social networking service. US District Judge Amy Berman Jackson stated that the decision to not block the privacy policy changes was within the FTC's discretion and thus not judicially reviewable:

[T]he FTC's decision whether to take action with respect to a potential violation of the Consent Order is a quintessential enforcement decision that is committed to the agency's discretion and is not subject to judicial review. ... The FTC is in the best position to evaluate whether Google's new policies will in fact violate the Consent Order, and if so, what course of action the agency should pursue.

Because the court ruled that the FTC's decision was not subject to judicial review, it never reached the issue of the merits of EPIC's case against the FTC. The changes to the privacy policy are set to take effect March 1.

Google's new privacy policy has faced heavy criticism from advocates concerned with consumer privacy. On Thursday the National Association of Attorneys General (NAAG) [official website] sent a letter [JURIST report] to Google, signed by 36 state attorneys general, expressing concerns about the company's new privacy policy. Last week, three US representatives sent a letter [text, PDF] to the Federal Trade Commission (FTC) [official website] asking it to look into [JURIST report] Google's new privacy policy. Last month, Google issued a letter [JURIST report] in response to concerns raised by members of Congress regarding consumer privacy rights as impacted by the new policy. In January, US Representative Edward Markey (D-MA) [official website] and seven other lawmakers sent a letter [text, PDF] to Google CEO Larry Page containing 11 questions regarding consumer privacy rights [JURIST report] as affected by Google's new privacy policies.

[JURIST] A Milan court on Saturday dismissed corruption charges against former Italian prime minister Silvio Berlusconi [Guardian backgrounder; JURIST news archive], finding that the statute of limitations had expired. Berlusconi was on trial for allegedly bribing his British tax lawyer, David Mills, to lie when testifying about Berlusconi and his holding company Fininvest in two trials that took place in the 1990s. Berlusconi, who was in office during most of the five-year-long proceedings, has been accused by some critics of attempting to use the majority he had as Prime Minister to change the law in order to give himself immunity and avoid prosecution. Mills was found guilty in a separate trial of receiving money, but that case was dismissed in 2010 because the statute of limitations had also lapsed.

Berlusconi, who resigned as prime minister in November, has been a defendant in nearly 50 cases. Last week, prosecutors asked a court to try him on tax evasion charges [JURIST report]. He is also facing charges of publicly releasing private wiretaps, embezzlement, and paying for sex with an underage prostitute [JURIST reports]. In July, an Italian appeals court ordered Fininvest to pay €560 million in damages [JURIST report] and fees to Compagnie Industriali Riunite (CIR) Group. The complaint stemmed from Fininvest's 1991 acquisition of Italian publishing company Mondadori, during which Fininvest bribed a judge in exchange for favorable decisions. In January 2011 the Italian Constitutional Court held hearings and subsequently struck down [JURIST reports] portions of a immunity law backed by Berlusconi that would have granted the premier and other public officials temporary amnesty from any charges while holding office.

[JURIST] A pro-same-sex marriage group in Maine, EqualityMaine [advocacy website], has gathered enough signatures to place a same-sex marriage [JURIST news archive] referendum on the November ballot. The question reads: "Do you favor a law allowing marriage licenses for same-sex couples that protects religious freedom by ensuring no religion or clergy be required to perform such a marriage in violation of their religious beliefs?" Same-sex marriage opponents will have 10 days to challenge the signatures [Reuters report] in an attempt to stop the bill from being placed on the ballot. In 2009, the Maine legislature passed a same-sex marriage bill, but voters chose to overturn the measure [JURIST report] by voting in a referendum much like the one planned for November. EqualityMaine now expects that voters will pass the same-sex bill by more than ten percent.

Recently, there has been a nationwide push towards acceptance of same-sex marriage. Earlier this week, the Maryland Senate passed a same-sex marriage bill [JURIST report], sending it to the governor. Also this week, Washington state legalized same-sex marriage [JURIST report] after Governor Christine Gregoire signed the legislation. New Jersey is also considering legalizing same-sex marriage soon, although it currently has a civil union system in place. Governor Chris Christie conditionally vetoed a same-sex marriage bill [JURIST report] last week and called for a voter referendum to decide the issue, rather than the state legislature. Same-sex marriage has also been legalized in New York, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports].