Doe v. Reed

The Supreme Court issued a fascinating decision this morning in connection with the marriage equality movement. It pits Justice Scalia against the anti-gay folks, and I’m not totally sure which side I agree with here.

Last year, in Washington State, the governor signed a same-sex domestic partnership bill into law. In response, a group called Protect Marriage Washington tried to get an initiative onto the ballot to repeal the law. They managed to get enough signatures to do so. In response to that, a coalition of groups sued under the state’s Public Records Act to learn the names of everyone who signed the petition.

Protect Marriage Washington argued that this would be a violation of the First Amendment rights of everyone who signed the petition, because it would have a chilling effect on speech. They argued that if you can’t sign a petition without staying anonymous, this will discourage people from signing petitions and thereby their free speech rights will be curtailed. They also argued that in this particular instance, the signers of the petition were subject to threats from gay-rights people.

This morning, the Court, in Doe v. Reed, ruled that there is no blanket right to anonymity if you sign a petition. But they refrained from ruling on the particular circumstances of this case; they kicked back to the lower court the issue of whether there’s a legitimate threat against the petition signers that would necessitate keeping their identities secret.

Chief Justice Roberts wrote the majority opinion, which was 6-3, although the lineup is a little splintered. Only Justice Thomas dissented completely, arguing that the First Amendment in all cases protects the anonymity of petition signers.

Scalia’s concurrence is the most interesting, though. He argues that there is no protection of anonymity regardless of whether there are threats; he examines American history and finds that there is not even a First Amendment right to a secret ballot in an ordinary election, because until the late 19th century, most states didn’t have secret ballots, and the secret ballot was instituted not because of First Amendment concerns, but in order to minimize election fraud.

The highlight of his concurrence is at the end:

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously… and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

He’s basically saying to the anti-equality people: don’t be such wimps. Have the courage to argue your opinions in public.

And I kind of respect that.

I’m still not sure if I agree whether petition signers should have the right to their anonymity. I think I’d say, no, except in certain circumstances, such as someone signing a petition for racial equality in the South during the 1960s, in a time and place where there was a history and demonstrated threat of racial violence.

And I don’t like the idea that you can sign a petition to take away someone’s rights and then turn around and falsely complain that you’re subject to the threat of violence for doing so.

Finally, it’s interesting to read this decision alongside the Court’s January ruling that the Prop 8 trial in California shouldn’t be broadcast because it could cause “irreparable harm” to the anti-equality side’s witnesses.

It’s always funny to me that lots of anti-gay people make fun of gay men for being sissies and yet cower in fear of physical harm from them.

Stevens to Retire; Appoint a Woman!

So, there it is… Justice Stevens is retiring at the end of this term, the day after the Supreme Court begins its summer recess.

First, some geekery. His retirement date means that he’ll just miss becoming the second-longest serving justice in Supreme Court history, as I speculated last fall, since the Court will most likely recess on June 28. Even if the Court recesses on July 1 — which is not likely and might happen only if there are too many decisions to announce at the end of the term — Stevens would retire on July 2, and thus tie Stephen Field as the second-longest serving justice. Right now Stevens ranks fourth; 41 days from now he’ll surpass the legendary John Marshall to become third.

I’m sure he doesn’t care about any of that stuff, though. Only geeks like me do.

Now the speculation begins on a successor. And I really, really want Obama to nominate another woman.

It’s ridiculous that in the year 2010, only two of the nine justices are women. Bush tried to nominate a woman to replace O’Connor — Harriet Miers — but when her nomination failed, he nominated Sam Alito, leaving Ruth Bader Ginsburg as the only woman on the Court. Obama did the right thing in choosing a woman to replace Souter, and Stevens’s replacement should be a woman as well.

Demographics should be secondary to a Supreme Court nomination, but when a president is looking for someone of a particular ideology or judicial temperament, there are usually several people to choose from, so he has the leeway to choose another woman. Fortunately, it looks like the name with the most buzz for the last couple of months has been Solicitor General Elena Kagan. Several weeks ago, SCOTUSblog profiled her, as well as a few other contenders, and considered her the front runner.

But this is interesting — if she were nominated and confirmed, the Supreme Court would have six Catholics and three Jews. Would fundamentalist Protestants be annoyed at having no representation? After all, to quote that link, “it’s not like having devout Catholics on the bench is a substitute for having a couple of Protestants, any more than having a Clarence Thomas on the bench is the same as having an African-American.”

The Supreme Court is problematic today — a small group of nine people can enact major change in this country, for better or for worse. Perhaps a larger court would be better, and not just because it would dilute the identity politics somewhat. (The Constitution doesn’t say there have to be nine justices — all it takes is an act of Congress, although the last time a president tried to make that happen, it didn’t work out.)

Of course, even in a larger body — the current United States Senate — only 17 out of 100 members are women. But given the infrequency with which the Supreme Court membership turns over, change comes even more slowly to that body.

Even three out of nine justices would be too few women on the Court. But it would help redress a great annoyance.

Greenwald on Alito

Glenn Greenwald criticizes Alito’s conduct:

The Justices are seated at the very front of the chamber, and it was predictable in the extreme that the cameras would focus on them as Obama condemned their ruling. Seriously: what kind of an adult is incapable of restraining himself from visible gestures and verbal outbursts in the middle of someone’s speech, no matter how strongly one disagrees — let alone a robe-wearing Supreme Court Justice sitting in the U.S. Congress in the middle of a President’s State of the Union address? Recall all of the lip-pursed worrying from The New Republic‘s Jeffrey Rosen and his secret, nameless friends over the so-called “judicial temperament” of Sonia Sotomayor. Alito’s conduct is the precise antithesis of what “judicial temperament” is supposed to produce.

Obama and Alito

I’m glad Obama criticized the Supreme Court’s campaign finance decision in his State of the Union address last night. It was great political theater — Roberts, Kennedy and Alito sitting there stonefaced as everyone around them stood up and applauded the criticism. Um, awkward.

In response to one of Obama’s criticisms, Alito mouthed, “No way. Not true.” He probably didn’t realize the camera was on him — I doubt he would have muttered openly to himself otherwise.

(Oh, and Ruth Bader Ginsburg looked like she was asleep during half the speech.)

Now, I’ve read a couple of random blog comments from people who say it was “classless” for Obama to criticize the Supreme Court to their faces, or something like that. But that’s nonsense. It was perfectly appropriate for Obama to criticize a judgment of the Court. Despite the robes, Supreme Court justices are not gods; they’re a branch of the federal government, like Congress. If the President can criticize Congress, he can criticize a Supreme Court decision.

I really like this take on the matter and wish I had written it:

The Supremes are used to wafting into the House in their black robes, sitting dispassionately through the speech and wafting ethereally out again on a cloud of apolitical rectitude. It’s like they forget they’re there because they’re one of the three branches. And I truly don’t think it ever occured to them that crassly injecting themselves into the sordid partisan fray of what they like to call “the political branches” with that catastrophic decision would cause the President to treat them like people who’d injected themselves into the sordid partisan fray. (And why should they? After all, they got away with Bush v. Gore with barely a dent in their credibility). I even thought I detected a bit of “told you” coming from the four in the minority.

A Constitutional Law Primer on the Prop 8 Case

It strikes me that some of what’s going on in the Prop 8 trial can be hard to follow. So I’m going to put on my constitutional law hat here and give a little primer. We’ll see how well I’ve remembered most of this stuff from law school.

Broadly, the plaintiffs in the Prop 8 case — the lawyers who are trying to get Prop 8 overturned — are trying to prove two things: (1) that marriage is a fundamental right that should be open to gay couples as well as to straight couples, and (2) that gays as a group are deserving of equal protection. Basically, discriminatory laws are subject to a high level of scrutiny if (1) they involve a fundamental right (like marriage) or (2) the discrimination is against certain protected groups (like blacks).

(Very little of this doctrine is actually set forth in the Constitution; it has been enumerated in bits and pieces by the Supreme Court over the decades in various constitutional law cases.)

To use a classic example: a state can allow optometrists to conduct eye exams but prevent opthamologists from doing so, because there is a rational reason for the law (one group has the expertise to conduct eye exams, the other does not). But you can’t pass a law permitting optometrists to get married but prohibiting opthamologists from doing so, because marriage is a fundamental right. And you can’t pass a law preventing black people from conducting eye exams, because they are a protected class with a long history of discrimination against them. You also can’t do either of these things because on a minimal level, there is no rational basis for the discrimination.

So this case is, to put it very simply, about (1) whether treating gays differently from straights in the area of marriage is the same as treating optometrists differently from opthamologists in the area of eye exams (i.e. is there a good reason for letting straights get married but not gays), and/or (2) whether sexual orientation should be a protected class like race is.

So here’s how that all plays out:

One, the lawyers on our side are trying to show that sexual orientation should be a protected class, i.e. a “suspect classification.” In other words, they are trying to prove that laws that discriminate on the basis of sexual orientation should be subject to a higher level of scrutiny just as laws that discriminate on the basis of race are subject to higher scrutiny.

Now, one of the characteristics of a group that is subject to this special protection is that the group lacks the political power to achieve its goals through the democratic system. So our side is trying to show that gays lack political power and therefore deserve protection, whereas the other side is trying to show that gays have adequate political power so what’s the big deal. The theory is that the courts will only look out for groups for whom the political system is rigged against them: i.e. blacks in the mid-20th century (who in many cases were being prevented from voting). Basically, the anti-gay folks are saying, “Look, gays have just as much political power as anyone else — see, people like watching TV shows and movies about gay people and there are lots of politicians who support them! Therefore, if they can’t win ballot measures about same-sex marriage, it’s not because of a fault in the political system, it’s just that they lost in a fair democratic vote!”

The whole thing about lacking political power is silly, because it’s paradoxical. Basically, we have to prove simultaneously that (1) gays are getting screwed by the political system and (2) society has evolved enough so that same-sex marriage isn’t that much of a further step. It’s never made much sense to me.

Another characteristic of a group that gets special protection is that that group has an immutable characteristic. So, some of the testimony has been about what makes people gay, can gay people change, etc.

So that’s the “suspect classification” argument.

But if they fail on that point, there is another tack: they are trying to show that Prop 8 does not even have a rational basis and is therefore unconstitutional.

One way to do this is to show that it was motivated by animus. The Supreme Court said in Romer v. Evans that even if a particular group does not deserve special protection, you can never constitutionally discriminate against a group merely because of animus and nothing else. Romer was the 1996 case in which the Court threw out a Colorado constitutional amendment that banned any laws protecting gay people from discrimination; there, the Court found that the reason the people of Colorado passed that amendment had no basis other than animus. That’s one of the reasons why our guys wanted to put William Tam on the stand — to show that he had a hand in the Prop 8 fight and that his reasoning was based on irrational, animus-driven prejudice (i.e. gays are child molesters, gays want children to be able to get married, etc.), and that his thinking reflects the thinking of most of the Prop 8 forces generally.

Another way to show that it lacks a rational basis is to go into the substantive stuff about why gays should be able to get married, why it does not harm children, etc.

So, all of that is the “equal protection” strand of the argument.

The other strand of the argument is the “fundamental right” strand, which also involves much of the substantive stuff about gays and marriage. But the main thrust on the “fundamental right” issue is that the Supreme Court has already, in the past, declared that marriage is a fundamental right: you can’t deny interracial couples the right to marriage, and you can’t even deny someone in prison the right to get married, even though the prisoner might never be able to have conjugal relations with the spouse. So the lawyers are trying to show that this already-declared fundamental right of marriage should not be denied to same-sex couples.

So this is basically what’s going on in the Prop 8 trial.

Prop 8 Trial Continues

During the Prop 8 trial, I’ve been following the Prop 8 Trial Tracker blog created by the Courage Campaign. It seems like our side has been putting on a great case, and the Prop 8 folks have been putting on a pretty lackluster case.

Of course, none of this really matters, because even if Judge Walker rules in our favor, and even if the Ninth Circuit upholds that decision, this will eventually wind up in the U.S. Supreme Court, where Justice Kennedy will be the deciding vote. No matter how rational our side’s arguments are, we’ll never get the votes of Roberts, Scalia, Thomas or Alito.

It’s really unclear what side Kennedy would be on. He’s written a couple of seminal pro-gay decisions — Romer and Lawrence. But what would he think about the validity of marriage equality?

No matter what happens in the Supreme Court, though, this trial has been a net plus. While I don’t know how much publicity the trial has had since the first week, it can only change people’s minds in favor of equality. I seriously doubt it would turn anyone againstmarriage equality who wasn’t already opposed.

Even if we lose in the Supreme Court, that’s not so bad. The Court wouldn’t outlaw marriage equality; it would just leave everything up to the states, which is where we are now. And any state-based marriage case that involved the interpretation of a state’s constitution would be unaffected, because the U.S. Supreme Court has no legal say over how to interpret a state constitution.

There are some who say that an adverse decision in the Supreme Court would set back the cause of equality, but that’s not necessarily so. As last week’s campaign finance case shows, the Court has no compunction about overturning its own precedents, even if those precedents are less than ten years old.

So I think that whatever happens, this trial has been a net win.

There’s a Martin Luther King quote that Obama has often used in the last couple of years:

The arc of history is long… but it bends towards justice.

In the long run, we’re moving toward equality.

Prop 8 Trial Re-enactment

In addition to the transcripts, there’s also going to be a re-enactment of the Prop 8 trial using the those transcripts, produced by freelance journalist and filmmaker John Ireland . So far there’s a preview video up. Looks pretty cool.

Does this mean the actors will get harrassed because viewers will get confused and think they’re the real participants?

(That’s a little joke about the Supreme Court ruling against cameras.)

SCOTUS: No Cameras in Prop 8 Trial

“Irreparable harm.”

Nobody expected the U.S. Supreme Court to get involved in the Prop 8 case so soon, but a couple of hours ago, the Court issued an order preventing the broadcast of the Prop 8 trial to five federal courthouses across the country after being asked to do so a few days ago by the pro-Prop 8 lawyers. The order doesn’t address whether the trial can be broadcast on the internet, because that issue is still being worked out at the lower level (“the technical staff encountered some unexpected difficulties preparing a satisfactory video suitable for on-line posting”).

This whole case has so many people on edge — me included — that anything the Supreme Court says about it, even on a supposedly tangential issue like cameras in the courtroom, is being given talmudic scrutiny.

What worries me is the makeup of the justices in this decision. It just so happens that the five justices who voted to bar cameras in this case — and therefore agreed with the pro-Prop 8 lawyers — are Roberts, Scalia, Thomas, Alito, and Kennedy, and that the four justices who dissented are Stevens, Ginsburg, Breyer, and Sotomayor. This is exactly the lineup a decision on the merits could have, with the possible exception of Kennedy.

The thing is, I tend to agree more with the majority here, that the lower court probably didn’t follow proper procedure in allowing cameras in this case. But I could be persuaded that the minority is right as well. This really isn’t an emotionally charged issue — except for the fact that it happens to involve a trial about Prop 8.

And the fact that the trial is about Prop 8 is relevant. The majority opinion, which is unsigned, isn’t just about proper procedure; it also endorses the claims raised by the pro-Prop 8 lawyers that some pro-Prop 8 people have been harrassed, even physically, and says that there could be “irreparable harm” in letting cameras in.

Never mind the fact that we’re not even talking about broadcasting the trial on the internet — we’re just talking about broadcasting the trial in five federal courthouses.

So, is this an attempt to paint pro-gay-rights people as crazy harrassers? What about the people who get gay bashed? What about kids who get driven to suicide because their classmates taunt them for being gay or even just for being effeminate? Granted, the anti-Prop-8 people apparently didn’t bring that up in their arguments. But in citing “irreparable harm,” the majority opinion seems a little too sympathetic to the anti-gay side here. And again, that worries me.

So “irreparable harm” rears its ugly head again. It’s a valid legal concept, and there’s nothing inherently wrong with it. But I can’t help but remember that it came up in Bush v. Gore, too. There, Justice Scalia said — in an example of great chutzpah: “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”

I really hope this procedural order isn’t a portent of how the case turns out.

New Yorker on Marriage Equality Lawsuit

The New Yorker has a terrific article by Margaret Talbot on the marriage equality case, Perry v. Schwarzenegger, that began yesterday in San Francisco. It has pretty much everything you need to know about the case from soup to nuts.

I have to admit that while I was very leery of this lawsuit and thought it was a terrible idea, the more I read and think about it the more excited I am. It feels good to be going on the offensive. Ted Olson may be a Dark Lord, but in this case he’s our Dark Lord. By which I mean that he’s a top-notch lawyer, and it’s great that he’s finally using his powers for good. If there’s going to be a marriage equality case before the Supreme Court, we couldn’t have stronger legal representation.

And yes, it’s possible that the case will wind up in the Supreme Court and that we will lose. On our side: Ginsburg, Breyer, hopefully Sotomayor, and hopefully whoever replaces Stevens after he likely retires this summer. On the other side: Scalia, Thomas, Roberts, Alito. In the middle: Anthony Kennedy, who wrote Romer and Lawrence and therefore would seem to be on our side, but you never know, especially since it would be a really big deal for the Court to overturn the laws of 39 states. Some say that if we lose, it will set gay rights back for years. On the other hand, what do we really have to lose? And if not now, when? Roberts, Alito and Thomas are all young, and Scalia could be on the Court for another 10-15 years. The makeup of the Court isn’t going to change in our favor anytime soon.

More importantly, this case is a great teaching moment. From the list of witnesses that Ted Olson and David Boies have put together, it looks like the case will touch on everything from marriage to discrimination to child-rearing to children’s education to so-called “conversion therapy.” Despite the ballot initiatives and the state legislatures that keep going against us, the more we discuss marriage equality, the more the public gets on our side.

On the other hand, if the Supreme Court rules in our favor, it could give fuel to the movement to pass the Federal Marriage Amendment. But you know what? I can’t see 67 U.S. senators voting to enshrine discrimination in the Constitution. And I’m tired of worrying about what our opponents are going to do if we fight for our rights. We’ve been timid for too long. What happens, happens.

Interestingly, there’s another federal marriage equality case going on right now, Gill v. Office of Personnel Management, which seeks not to overturn state laws against marriage equality but rather to overturn part of the Defense of Marriage Act. Gill seeks to force the federal government to recognize same-sex marriages that were validly performed in a state that recognizes them. Normally, if, say, Massachusetts allows a marriage to take place, the federal government doesn’t second-guess Massachusetts and refuse to recognize that marriage. Why should it be any different in the case of same-sex couples? This is what the Gill plaintiffs argue, and in a sense it’s a more palatable case, because it seeks not to overturn state laws but rather to strengthen them. It’s not clear which case will get to the Supreme Court first, Gill or Perry.

In the meantime — still waiting for Obama to stop discharging U.S. soldiers for being gay, and for Congress to repeal Don’t Ask, Don’t Tell.

Damn, I’m tired of waiting.

2009 in Books

For the last few years I’ve been keeping a list of the books I read. (Here’s last year’s list.) What strikes me about 2009 is the number of just plain big books I’ve read. In the winter was The President’s House: A History, by William Seale. In the spring there was Nixonland: The Rise of a President and the Fracturing of America, by Rick Perlstein. In the summer, inspired by the anniversary of Apollo 11, I read This New Ocean: The Story of the First Space Age, by William E. Burrows. And in the fall I read Ideas: A History of Thought and Invention, from Fire to Freud, by Peter Watson.

By far, my favorite book this year was The President’s House. I have rarely become so immersed in a book as I did in this one. In two volumes, it’s an incredibly leisurely stroll through 200 years of White House history, from the building of the house up through the present day. Along the way you meet all the presidential families who have lived there, and some of their long-serving aides. You live through weddings, deaths, funeral processions, wars. You experience the fire set by the British in 1814, the Lincolns’ life during the Civil War, the installation of gas lamps and then electricity, the utter reimagining of the house by Theodore Roosevelt, the creation of the West and East Wings and the Oval Office, the destruction of the Oval Office by fire in 1929 and its rebuilding, the complete gutting of the White House by Harry Truman so that a steel skeleton could replace the crumbling infrastructure and the two sub-basements could be added, and the postwar decades. The book is a presidential history, a social and cultural history, and an architectural history. It was a very special reading experience for me and I was sad when it ended. I feel like I know the White House much more intimately than I ever did. I fantasize about taking up residence in one of the several bedroom suites on the third floor (which you can’t really see from the outside, since it’s hidden by the parapets), hanging out up there in the solarium or the music room on a snowy day.

Anyway, here’s the complete list of books I’ve read this year, in chronological order:

The President’s House: A History, William Seale (2 vols.)

On Being a Therapist, Jeffrey A. Kottler

The Fortress of Solitude, Jonathan Lethem (started)

Nixonland: The Rise of a President and the Fracturing of America, Rick Perlstein

Nixon’s Shadow: The History of an Image, David Greenberg

Tear Down This Myth: How the Reagan Legacy Has Distorted Our Politics and Haunts Our Future, Will Bunch

Reagan’s Disciple: George W. Bush’s Troubled Quest for a Presidential Legacy, Lou Cannon and Carl M. Cannon

Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice, Joan Biskupic

The American Supreme Court, Robert G. McCloskey (started)

This New Ocean: The Story of the First Space Age, William E. Burrows

The Fabric of the Heavens: The Development of Astronomy and Dynamics, Stephen Toulmin and June Goodfield

Ideas: A History of Thought and Invention, from Fire to Freud, Peter Watson

Feeling Good: The New Mood Therapy, David D. Burns

Four Days in November: The Assassination of President John F. Kennedy, Vincent Bugliosi

Reclaiming History: The Assassination of President John F. Kennedy, Vincent Bugliosi (a third of it)

The Man Who Folded Himself, David Gerrold

Here’s to more happy reading in 2010.

Justice Stevens

So, it looks like Justice Stevens might be retiring next spring, or so say the Supreme Court kremlinologists. Justices usually hire clerks a year in advance, and Stevens has hired just one for the 2010-11 term instead of the usual four. The man’s going to be 90 years old in April, so it wouldn’t necessarily be surprising. But I thought he was going to stick around until death, and he apparently still plays tennis regularly. Anyway, retirement announcements don’t usually come until the spring, so we won’t know for a while.

If Stevens announces retirement effective at the beginning of the summer recess, like Souter did, that would peg his retirement at about 300 days from now, and he might just miss surpassing Justice Field as the second-longest-serving justice. If he announces a retirement upon the swearing-in of his successor, like O’Connor did, then that would be a couple of months longer (or even more, if we get a Roberts–>Miers–>Alito situation, like we did four years ago), and in that case he would definitely surpass Field, leaving him second only to William O. Douglas in longevity — who happens to be the man Stevens replaced on the bench in 1975.

Think about that. If Stevens retires next spring, then only two justices will have held that particular Supreme Court seat since 1939. And who held it before Douglas? Louis Brandeis! That’s how long it’s been.

Judicial Liberalism Not Happening

If you believe in judicial liberalism — which I sometimes do and, to be honest, sometimes don’t — the current direction of the Court is a little depressing. Tom Goldstein, Supreme Court analyst extraordinaire, points out that the conservatives on the Court are free to move at a measured pace in overturning liberal precedents, at least for a while:

For the moment, there is no reason to rush. Time permits a jurisprudence of not just originalism, or textualism, but actuarialism. The sand running through this hourglass will not expire for eight years.

Later in his term, President Obama will likely replace Justice Stevens with someone else on the left. If he is reelected in 2012, he will replace Justice Ginsburg with someone on the left. Nothing changes.

It isn’t until the election of 2016 at the earliest that there is a real prospect for a significant shift to the left in the Court’s ideology. Actuarially, that election is likely to decide which President appoints the successors to Justices Scalia and Kennedy (both on the right, and both 73 now) and Justice Breyer (on the left, and 70 now). Absent an unfortunate turn of health, between now and the summer of 2017 there is no realistic prospect that the Court will turn back to the left. Over the course of that eight years, it is possible to take enough measured steps to the right to walk a marathon. Again, no need to rush.

Unless something happens to Scalia, Thomas, Roberts, Alito, or Kennedy in the next few years, the Court is on a slow rightward trajectory.

On the issue dearest to my heart — gay rights — it probably doesn’t mean much. Kennedy has been pretty pro-gay (Romer, Lawrence), but I don’t expect the Court to take up same-sex marriage for a while. It didn’t overturn the nation’s sodomy laws until only 13 states were left with such laws; the Court is too cautious to constitutionalize same-sex marriage rights at this point, when only six states allow such marriage.

What else could the Court tackle? Don’t Ask/Don’t Tell will be history in the next few years — I’m pretty sure Obama will get around to it after health care and energy are taken care of. DOMA (full faith and credit clause) is a possibility — which would be a sidelong way to rule on same-sex marriage. But I don’t think the Court will touch that right now. Again, the issue is just too volatile, and the Court generally knows when to stay out of things. (It has learned from abortion; would Roe v. Wade come out the same way today? Who knows; the opinion would at least be less intrusive if it were written today.)

Of course, I could be wrong. Issues have a way of showing up on the Court’s docket unexpectedly, especially since it only takes four Justices to vote to hear a case.

But for now, things seem to be in stasis, at least where gay rights are concerned. As for everything else — drifting right.

Repubs Take NY Senate

Fucking fucking fuck. Two Democratic state senators have defected to the Republicans, giving Republicans control of the New York State Senate. So much for marriage equality in New York in the next year and a half.

The two who defected are a real couple of winners:

Why Mr. Espada and Mr. Monserrate suddenly defected on Monday afternoon was not immediately clear. Both men are under investigation by the authorities. The state attorney general’s office is investigating a health care agency, Soundview HealthCare Network, that Mr. Espada ran until recently. And Mr. Monserrate, who was indicted on felony assault charges in March stemming from an attack on his companion, would automatically be thrown out of office if convicted.

What the fuck is wrong with this state? Why is it so hard to get marriage equality in New York, of all places? First the state supreme court screws us, and now this. It’s not just upstate that’s the problem — these anti-gay Democrats are from New York City: the Bronx and Queens.

I am so pissed off right now.


This is a busy day for legal topics I’m interested in: the U.S. Supreme Court and gay rights law. Within the course of several hours we had the Sotomayor nomination and the California Supreme Court’s decision on Prop 8.

First, Sotomayor. She seems like a decent enough pick for the Court, but beyond her life story and the Jeff Rosen hack job on her, I don’t know much about her. I was hoping for a fierce liberal advocate to counter Scalia — I would have loved to see Obama pick Pam Karlan. Will Sotomayor be that fierce liberal advocate? Maybe, maybe not; I don’t know. You can read summaries of her past appellate rulings here. At any rate, it’s sure to be an interesting confirmation process.

As for the Prop 8 decision: no real surprise. The court upheld Prop 8 but kept the existing same-sex marriages intact. This is an incredibly long opinion — the main opinion alone is 135 pages — and I haven’t had a chance to read much of it. But the decision is ridiculous for the simple reason that it allows a majority of a population to strip a minority of equal protection of the laws. As the sole dissenting justice wrote today:

The equal protection clause is… by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect.

This case is really about whether a particular method to change the California Constitution is itself a violation the California Constitution. I’ve skimmed the decision and it seems to spend a lot of ink on the difference between a constitutional “revision” (which requires the legislature’s imprimatur) and a constitutional “amendment” (which does not), but it doesn’t really matter, because whatever you call it, changing a constitution is supposed to be difficult. As I wrote last year, it should take more than a simple majority to change a constitution. The whole point of a constitution is to have a restraint on day-to-day political passions. A constitution is supposed to be higher than ordinary law and therefore harder to amend. If it’s no different to pass a constitutional amendment than to enact a popular initiative, then you have mob rule. If not for decisions by the United States Supreme Court that found race and sex discrimination to be violations of the U.S. Constitution — which outranks the California Constitution — then it would be possible for the general population of California to enshrine constitutional discrimination against blacks and women today. The process for amending the California Constitution is nonsensical.

Our founders didn’t believe in direct democracy; they believed in representative government. They believed in the wisdom of having a particular group of people, chosen by the populace, to legislate and act in their best interests. They believed that this political class had “virtue,” an amorphous concept that I don’t think really exists, but put virtue aside and the point remains that legislators are usually smarter and more thoughtful than the populace at large. (There are exceptions, of course, such as Michelle Bachman.) The stupidly simple California amendment process flies in the face of the constitutional and political theories in which our founders believed.

Nevertheless, although this decision is a big disappointment for supporters of gay rights, I find myself not too concerned in the long run. Constitutional jujitsu is possible here: since it’s so easy to amend the state constitution, all you need is a simple majority to overturn Prop 8. The vote in November was close, 52% to 48%. Attitudes continue to change, and at some point — hopefully soon — a majority of Californians will support same-sex marriage rights, and Prop 8 will lie in the dustbin of history.

A Gay Justice

There are two lesbians on various people’s shortlists for Justice Souter’s replacement on the Supreme Court: Kathleen Sullivan and Pam Karlan, both professors at Stanford Law School. (Karlan was a professor at UVa Law when I went there, but I wasn’t in any of her classes.)

I don’t think it’s going to happen — this isn’t a “West Wing” episode — and Karlan doesn’t seem to think she’ll get the nod, or else she would have been less vocal about the vacancy. But some people think Karlan would be a brilliant justice.

Scotusblog on Souter

Tom Goldstein at ScotusBlog has interesting thoughts on Justice Souter’s retirement and his possible replacements.

David Souter will be the first Supreme Court justice whose career I’ll remember from start to finish. I was too young to know about Sandra Day O’Connor’s appointment; I was 16 when Souter was appointed in the summer of 1990, living at my aunt and uncle’s house in New Jersey on a break from Japan. Souter’s will be one of the shortest terms in recent Supreme Court history, at just 19 years. O’Connor served for more than 24 years; Rehnquist, more than 33; Blackmun, 24; White, 31; Marshall, 24; Brennan, 31. The last justice to serve fewer than 20 years was Lewis Powell, from 1972 to 1987.

So Souter will retire at age 69 and go back to New Hampshire, where he can spend the rest of his life hiking, reading, and eating his daily lunch of a whole apple (including the core) and yogurt, seemingly unchanged by the city where he’s spent the last two decades. I wish him a happy retirement.

Thoughts on Iowa Opinion

Some thoughts on the Iowa Supreme Court decision:

(1) Four state supreme courts have now mandated allowing same-sex couples to marry: Massachusetts, California, Connecticut, and Iowa. The latter three have come down in the past year.

(2) Of these, the Iowa opinion has the most extensive discussion of the religious aspect of the debate, as far as I can recall. It’s added almost as a postscript — see pages 63-67. The court says that religion is not relevant to the debate. In fact (as Andy and others will be happy to read), the court points out that there are religious groups and people who support same-sex marriage. The whole section is worth reading for a good explanation of why religious arguments have no place in a secular debate.

(3) Among its arguments, Polk County put forth one of the stupidest rationales I’ve seen for banning same-sex marriage (pp. 60-63): the conservation of state resources. As the court phrases the county’s argument, “couples who are married enjoy numerous governmental benefits, so the state’s fiscal burden associated with civil marriage is reduced if less people are allowed to marry.” (Fewer, not less! Sigh…) For example, since married couples get tax benefits, allowing same-sex couples to marry would deprive the state of tax revenue.

But as the Iowa Supreme Court says, “Excluding any group from civil marriage — African-Americans, illegitimates, aliens, even red-haired individuals — would conserve state resources in an equally ‘rational’ way. Yet, such classifications so obviously offend our society’s collective sense of equality that courts have not hesitated to provide added protections against such inequalities.” Additionally, the court states, “Indeed, under the County’s logic, more state resources would be conserved by excluding groups more numerous than Iowa’s estimated 5800 same-sex couples (for example, persons marrying for a second or subsequent time).”

One wonders if the county’s heart was really in this argument or if they were just feeling desperate.

(4) As for why civil unions would not be good enough, the court states (p. 68): “Iowa Code section 595.2 is unconstitutional because the County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage. A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution.”

The court doesn’t explain it any further. It basically says, if there’s no reason to prevent same-sex couples from getting married, then let them get married — there’s no need for this civil union nonsense. The Massachusetts court went into much greater depth in its special statement about this distinction, but that was in response to a specific question from the Massachusetts senate. Neither of the parties in Iowa asked about civil unions, so there was no need for the Iowa court to say much about it.

I’m still embarrassed that Iowa has gone where New York and New Jersey didn’t go. But it shows how interesting our federal system of government is, where states work out so many of these issues for themselves. The patchwork quilt gets patchier!