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.

There was some highly entertaining testimony yesterday in the Prop 8 trial. It was from William Tam, who worked on behalf of Prop 8. Tam had originally been a party to the case, but he dropped out because his theories would have come off as too batshit crazy. But Olson and Boies subpoenaed him as a witness anyway to showcase how nutty some of the Prop 8 people are. And Tam certainly delivered. He even admitted that his fears about marriage equality are “paranoid.”

His testimony starts on page 145 of yesterday’s transcript. Below is the first example I saw of how reasoned argument can be used to demolish inflammatory rhetoric; this starts on page 182. The questions were asked by David Boies.

Q. And you say: “The San Francisco city government is under the rule of homosexuals.” Do you see that?

A. Yes.

Q. Did you believe that, sir?

A. Yes, I believed that.

Q. Who are the homosexuals that San Francisco is under the rule of?

A. Uhm, at that time, supervisor Tom Ammiano was a supervisor there.

Q. And there was also a mayor, right?

A. Yes.

Q. The mayor was a homosexual, was he, according to you?

A. I don’t think so.

Q. You don’t think so? No, I don’t think so either, actually. So if you knew the mayor wasn’t homosexual, why are you telling people in part of the Proposition 8 campaign that San Francisco is under the rule of homosexuals?

A. Uhm, well, you see, Mayor Newsom pass out the same-sex marriage licenses in 2004. And if he is not a friend of them, why would he do that?

Q. When you say that San Francisco was under the rule of homosexuals, did you mean San Francisco was under the rule of heterosexuals that were friends of homosexuals? Is that what you meant?

A. Could be.

Q. Could be.

A. Yeah, you know, I’m not a lawyer. I don’t write things so specifically. You know, that well-defined.

Yes, if you’re having a debate about the civil rights of human beings, it would be silly for the arguments to be “well-defined.” It’s much better to distort the truth.

You know, instead of allowing nutjobs to argue on cable TV and make outlandish claims that don’t get refuted, we should require every debate to be conducted in front of a judge, in a civilized, rational manner, because that’s how the truth really comes out.

Tam unintentionally admits the real truth on pages 221-222:

[I]f the name of “marriage” is not so narrow, which is between people of different — different blood, of different — of age above 18, then our children — you know, I always, we always look at things from the angle of a parent — that they would fantasize. Everyone fantasize whom they will marry when they grow up. So children will fantasize about marrying either a man or a woman. And to us parents — you may say that I’m a paranoid Chinese parent — we get very, very upset about that.

Many a true word is spoken in jest.

Do you ever wonder if the reason some people are against marriage equality is because they will no longer be assumed to be straight if someone sees them wearing a wedding ring? That if they say “I am married,” someone will respond, “Oh, to a man or to a woman?”

Throw in a little insecurity over your own sexual orientation and there you go.

For a while I’ve had the idea of writing a post from an alternate universe, where Hillary Clinton is president, and things are going horribly for the Democrats, and we all say, “Darn, if only we’d only elected Obama, things would be going so much better for us!”

I’m feeling down about politics again — Democrat Martha Coakley is in danger of losing her Senate race against Republican Scott Brown, in Massachusetts of all places. If Coakley loses, that leaves only 59 Democrats in the Senate, which means that health care is dead unless the House passes the Senate bill as is. (Or unless both houses get their shit together and vote on a compromise bill already. The Senate passed its bill three weeks ago! What’s taking them so long?)

In the past I’ve blamed Harry Reid for the Democrats’ problems. But I also blame Obama. Things should never have gotten to the point they did last summer, when the “death panel” rumor ran rampant. The New Yorker article on marriage equality that I linked to yesterday has a part that struck me, about Chad Griffin’s experiences working on Bill Clinton’s 1992 campaign:

But the Clinton “war room” remained Griffin’s model of how to make noise in the world. “Every single hour was strategic,” he recalled. “I was this little freakin’ kid hanging around watching Paul Begala and James Carville and George Stephanopoulos. They did not let the opposition gain an inch, and if it did they knocked it down with firepower.”

Can anyone describe the White House efforts at health care reform that way? No.

It’s funny. In 2008, all the anti-Obama people were saying, “Obama’s an idiot, he’s all flash and no substance, all he knows how to do is give a speech.” But in fact, that wasn’t true. I can’t remember where I read this, but there was an article in 2008 saying that Obama as a candidate actually started out really wonky and earthbound and uninspiring, and his campaign managers had to convince him to spice things up a bit, inspire people, use more poetry instead of prose. But now that he’s president, he seems to be just a policy wonk again. Candidate Obama was full of inspiration and hope, but President Obama is just boresville. He’s Calvin Coolidge.

Sometimes lately, I find myself wishing that Hillary Clinton had been elected president. But who’s to say that things would be better if she were in the White House? It’s tempting to say, “Darn, Hillary Clinton would have been a much better president than Obama! She would have kicked ass!” But there’s no way of knowing. She might have turned out to be a bad president: remember her disorganized primary campaign, her wooden speaking ability, the landing-in-Bosnia-under-fire thing. Could she have gotten health care legislation as far along as Obama has? I can just as easily see her overplaying her hand and screwing it up as I can see her intimidating the Republicans and keeping all the Democrats in line.

When we imagine that things would have been better only if things had turned out differently, it’s basically “hope” aimed in a different direction. “Regret” and “hope” are cousins. In each case, we’re imagining some alternative world where things are going much better than they are now: it’s either the future (hope) or an alternate universe (regret).

There are, of course, factors outside of Obama’s control here. If Ted Kennedy hadn’t gotten cancer, there would be no special election in Massachusetts to worry about right now. If tons of white people weren’t racist and xenophobic, there would be no Tea Party movement to deal with. But there’s a lot more Obama could have been doing these last few months other than being idealistic.

Anyway, there is nothing that I, myself, can do to change anything going on in politics right now. So I can continue to follow it and get depressed about it; or I can just ignore it, which isn’t going to happen, because I’m a politics junkie. Finally, there’s the third option, which is that I can continue to follow it and realize that there’s nothing I can do about it so there’s no point in getting depressed about it.

I will probably choose the last one.

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.

I went to law school with Bill Baroni. He graduated a year or two ahead of me. He didn’t know me, but I knew who he was. He was nicknamed “mayor of the law school,” because he was apparently a nice guy who seemed to know everybody. He was from New Jersey, and everybody said he would go into politics.

He did. He got elected to the New Jersey Assembly, and then he got elected to the New Jersey Senate. And now he’s on the New Jersey Senate Judiciary Committee.

Last night, the Judiciary Committee approved a bill to allow marriage equality in New Jersey, which allows it go to the full New Jersey Senate on Thursday.

The committee passed the bill 7-6. One Republican voted for the bill. That Republican was Bill Baroni. Had he voted against the bill, it would have died.

Senate passage is by no means guaranteed, but it has passed a crucial step with Bill Baroni’s help. I want to thank him for doing what is right. And I hope some of his fellow Republicans in the senate do the same thing on Thursday.

More about Bill here.

This all happened so fast. Until a few hours ago, I didn’t even expect the state senate to vote on marriage equality this session. And then I glanced at the NYTimes.com late this morning and saw the surprising news that they’d be voting today. All the marriage equality proponents have been arguing that no matter how the senate voted, it would be progress if they at least held a vote.

And that’s true. Holding a vote and losing is better than not holding a vote at all. (I think.) Now every senator is on record with a position on marriage rights, so we know whom to target next time. The senate has broken the taboo against voting on it. Progress comes in slow steps — sometimes agonizingly slow steps.

But that doesn’t mean it doesn’t hurt.

I would like the 38 New York senators who voted against marriage equality to TELL ME TO MY FACE that they don’t think I should be able to get married. Fucking bigots.

My friend Tim Jarrett has posted about an incident in Massachusetts where an employee of Brookstone was fired, ostensibly for opposing marriage between same-sex couples. But further examination shows that this was not the case.

Apparently Peter Vadala was talking with a female coworker, and she referred to her upcoming honeymoon. Vadala congratulated her and asked where “he” was taking her. She responded that her fiancée was a woman. He became a little uncomfortable, and she noticed, so apparently she brought it up in front of him a few more times that day. Finally, at the end of the day, when she brought it up for a fourth time, he claims to have responded that he believed homosexuality was bad and immoral. Someone else overheard him, and he was brought to HR and was subsequently fired for violating Brookstone’s antidiscrimination policy.

Mass Resistance, an anti-marriage organization, has raised the alarm, claiming that this is what happens when marriage for same-sex couples becomes legal: Christians start getting fired for expressing their beliefs!

That’s bunk.

Now, one could argue whether or not Vadala should have been fired for expressing a personal opinion about homosexuality and whether his statements actually constituted discrimination. Maybe, maybe not.

But that’s not the issue here, because that’s not the point Mass Resistance is trying to make. Mass Resistance is trying to turn this into an argument against same-sex marriage, when same-sex marriage is actually a huge red herring here. It has nothing to do with what happened.

In the video on that page, Mr. Vadala himself states that he was fired “because I expressed my belief that homosexuality is wrong. That’s the reason that I was fired.”

He also says that at the end of the workday, after the employee again brought up her fiancee, he told her, “Regarding homosexuality, I believe that’s ‘bad stuff.’”

He then refers to the fact that he was just “expressing my sincere belief that homosexuality is wrong.”

What Mr. Vadala is really trying to do is defend a right to speak out against homosexuals, not a right to speak out against married gay couples. Mr. Vadala would have been fired even if same-sex couples could not legally marry in Massachusetts. Here’s why.

What if the incident took place in, say, Maine, where the marriage of same-sex couples remains illegal? Suppose the employee had repeatedly mentioned not her fiancée, but her female life partner, and Mr. Vadala got tired of it and decided to respond, “Regarding homosexuality, I believe that’s ‘bad stuff,’” and then later stated, “I was just expressing my sincere belief that homosexuality is wrong”?

The termination letter from Brookstone states that “we maintain a healthy, safe and production work environment free from discrimination based on race, religion, gender, sexual orientation, age, national origin, physical or mental disability.” Presumably this policy existed even before same-sex couples had the legal right to get married in Massachusetts; most companies have had such anti-discrimination policies in place for years, since long before same-sex couples could legally marry in any U.S. state.

One could argue whether or not Vadala’s statement constituted a firing offense. But one cannot argue that the facts of this incident have anything to do with marriage. The outcome would have been the same either way.

So let’s not pretend that legal marriage between same-sex partners is going to oppress people because of their religious beliefs. Our society has long enshrined the principles of both religious liberty and civil rights. Occasionally they conflict; this is nothing new. Over the years, we have developed rules to deal with such situations. Discrimination against gay people is already illegal in many states and will remain so. And that’s what groups like Mass Resistance are really interested in: not discrimination against same-sex marriage, but discrimination against gay people, plain and simple.

This result in Maine makes me think about the complicated issue of popular initiatives and referenda. Any time marriage equality goes to the people for a direct statewide vote, it loses. The exception was one time in Arizona, but then the anti-gay side tried again and they won. Loss after loss leaves me frustrated and hurt, and I’m sick of these things getting onto the ballot. Popular initiatives are stupid, I tell myself, because the general public is too uninformed to vote on an issue directly.

But I don’t know. On the one hand, we are not a democracy, we are a representative democracy. We elect people to govern us and make policy decisions, because there are certain people who have a better grasp of the issues than Joe Q. Public does. It’s a principle of a representative democracy that you entrust governance to the representatives you’ve voted for.

But a hundred years ago, referenda and initiatives became popular. Why? Because legislative bodies were seen to be taken over by special interests. Obviously, this is still true today on many issues.

But shouldn’t you only resort to public initiatives when it involves an issue where the legislature is captive to special interests? This is often the case with economic issues, but how is it the case with gay rights? If anything, the people who oppose gay equality are better organized than those who support it. Aren’t they the special interest?

And yet, you can argue that it was the people’s decision to entrust most of its power to the legislatures, and that the people can choose to reserve certain issues for themselves if they want to. You can argue that if enough people feel passionately about a particular issue, rightly or wrongly, then the people can validly decide to reserve the decisionmaking power on that issue to themselves. Clearly there are plenty of people who are passionately opposed to gay equality, and even though they are guided by mistaken impressions of gay people, can provide no logical reason to prevent gay couples from marrying, and can provide no clear answer why other people’s marriages affect them, they are still the people. Or at least they are a portion of the people. And if they can get a majority of voters to agree with them, well, maybe we have to accept that this is a valid expression of democracy?

Except that individual rights should not be subject to democratic vote. Majorities should not be able to take away the rights of minorities.

Also, you can argue that legislators are better informed than the public, because they actually have to debate the issues, whereas the public is too busy with their daily lives. Except… there are plenty of stupid, uninformed legislators out there.

In the end, it’s pointless to argue whether the popular initiative process is valid or not. It’s a reality, and supporters of gay equality have to deal with them.

They can actually be a good thing in the long run, because they provide an opportunity for us to interact with voters — our fellow citizens — and to try to convince them that we’re right. Courts are sometimes necessary as a last resort, but achieving social change through litigation can lead to lazy activism. It’s one thing to convince four or five judges to rule in your favor; it’s another thing to convince your neighbors, and ultimately, the latter is more important, because it is more lasting. Court decisions can be reversed by amendment or by massive social resistance. Ten years after Brown v. Board of Education, virtually no schools in the South were racially integrated. It took the popular uprisings of the late 1950s and the 1960s to lead to real change.

Yes, there are plenty of people who just want the legal rights we are entitled to as Americans. When you’re out of work and in poor health and you can’t get onto your partner’s health insurance plan because the insurance company doesn’t consider you to be married, you don’t particularly care about winning over the hearts and minds of your neighbors; you just want your rights. But ultimately, because we live in a civil society, it’s important to have the support of your fellow citizens, or even just a grudging tolerance — if only to ensure that once a right is acknowledged, the people won’t decide to take that right away from you.

Popular initiatives may be a pain in the ass, and they may clash with the idea of representative democracy. But they give us a chance to change public opinion. And with public opinion on your side, you have a much stronger foundation for real, permanent change.

This is turning out to be a depressing election night. My home state, New Jersey, has elected a Republican governor for the first time in eight years. (I no longer live there but I do work there.) Maine seems to be rejecting marriage equality. And the Republicans have retaken the governorship of Virginia, another state where I used to live.

Matt and I voted today for NYC mayor. Apparently we were among the pathetically small percentage of New Yorkers who did so. We both supported Bloomberg, but at the last minute Matt decided to vote for Thompson in order to send Bloomberg a message and keep him from getting too cocky about his victory. Bloomberg’s margin of victory is surprisingly thin — apparently lots of other people either did the same thing as Matt or just stayed home because they assumed it would be a blowout.

The only bright spots tonight are that Bill Owens has beat the know-nothing right-winger Doug Hoffman in upstate New York, dealing a blow to Palinism, and that Washington State voters have preserved expansive domestic partnership rights for same-sex couples on par with marriage. These both make me happy.

As for Maine: marriage equality is a generational thing. I’m so sick and tired of seeing gay equality voted down again and again in this country. But younger people support it, and the elderly who oppose it are dying off or heading into nursing homes. The tide is slowly turning in our favor. Our day will come.

And as for New Jersey and Virginia, my consolation is that governors don’t make foreign policy. Christie won’t invade Pennsylvania or something. He hasn’t made clear what he plans to do to fix New Jersey’s economy; Corzine cut government spending and raised taxes. Is Christie planning to do something different? Is there some super-secret non-entitlement spending he plans to cut that Corzine didn’t know about?

Finally, these results are not a reflection on Obama: he still has decent approval ratings in both Virginia and New Jersey. People are pissed off about the economy, but they still support the president. Jon Corzine is an incredibly poor communicator. Virginia, well, Virginia is Virginia.

Sigh. Good night.

The Times has an article today about a judge’s refusal to dismiss the federal marriage equality lawsuit:

In the courtroom, Mr. Cooper’s arguments seemed to fall of their own weight. The government should be allowed to favor opposite-sex marriages, Mr. Cooper said, in order “to channel naturally procreative sexual activity between men and women into stable, enduring unions.”

Judge Walker appeared puzzled. “The last marriage that I performed,” the judge said, “involved a groom who was 95 and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?”

Mr. Cooper said no.

“And I might say it was a very happy relationship,” Judge Walker said.

“I rejoice to hear that,” Mr. Cooper responded, returning to his theme that only procreation matters.

I watched Obama’s speech to the Human Rights Campaign on Saturday night. I was underwhelmed.

Many others have pointed out that it was the same speech Obama could have given as a candidate. As Dan Savage wrote, “Imagine all the wonderful things this guy is going to accomplish if he ever actually gets elected president.” Ooh, Obama mentioned Stonewall in his speech! What is this, 1992? Mentioning Stonewall is like buying a Hallmark card. It means you don’t really give a shit, so you’re going to resort to a cliché. What about Frank Kameny? What about Harry Hay?

Then there was the appalling email that the head of the HRC, Joe Solmonese, sent out a few days ago, apparently saying that we shouldn’t judge Obama’s gay rights record until January 2017. I don’t think he was saying what some critics claim; I think he was merely making the point that by the end of Obama’s administration, we will have seen progress on gay rights, and hey, let’s be optimistic and hope Obama serves two terms instead of one. But that’s not how it came off to some influential people, such as Andrew Sullivan and Dan Savage and John Aravosis, and that’s not surprising given that the HRC has accomplished nothing except raising money and holding fancy dinners. To Sullivan and the others, Solmonese seems to be saying that we should wait until 2017 to see any progress. So we may as well have waited until 2012 to elect a Democrat.

Yes, Solmonese’s email was misinterpreted, but it serves him right. Oooh, hate crimes laws! Yay! As if hate crimes aren’t already prosecuted as crimes.

Meanwhile, my frustration with Obama is growing. I’m guessing that he’s waiting until health care passes before addressing gay rights, and that in early 2010, we’ll see him start to move on DADT. He’s afraid of bringing up any “touchy social issues” until health care’s out of the way, and he’s spooked by what happened to Clinton in 1993. But this is 2009, not 1993. Ending DADT is no longer controversial; nearly 70 percent of the public supports ending it.

To be honest, if the choice were between health care reform and gay rights, I’d choose health care reform, because that affects tens of millions of people and it’s one of the biggest problems our country faces. But who says there has to be a choice? Is gay rights really going to drain political capital from health care? Really? If it can survive fake death panels, it can survive DADT.

Obama, despite what the teapartiers think, is not a radical. He’s cautious about moving too quickly — in this case, perhaps too cautious. And nothing can excuse those awful legal briefs in which the administration defended DOMA. I’d be amazed if Obama actually takes any action against DOMA, especially since he’s on record as not supporting marriage equality. (Never mind that both Bill Clinton, who signed DOMA, and even Bob Barr, the former Republican congressman who wrote DOMA, think it should be repealed.) That said, if Congress passes the Respect for Marriage Act, I don’t doubt Obama would sign it.

Still — once again, we are lured for our votes and our money, but a Democratic president isn’t going to lift a finger to actually do anything to help us. If he doesn’t do anything next year, we’ll know Obama doesn’t give a shit about gay rights.

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.

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.

Go Maine! The state’s governor decided to sign the same-sex marriage bill! It goes into effect in September.

Baldacci said in a statement that while he has opposed gay marriage in the past, “I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage.”

When empathetic people realize that this is a question of constitutional rights, of equality, they come around.

Maybe this will put pressure on New Hampshire’s governor to sign his state legislature’s bill, too.

Same-sex marriage is now legal in Vermont! I’ll have analysis of the court decision shortly. Oh, wait, no I won’t, because this was done by the legislature.

Overriding the governor’s veto, no less. Darn those antidemocratic legislatures!

There’s a push to legalize same-sex marriage in all six New England states by 2012. Three down, three to go.

(Update: in Vermont it will take effect on September 1.)

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!

The Iowa Supreme Court has ruled, unanimously, that banning same-sex marriage violates the Iowa constitution. Unanimously! Iowa!

See, New York Court of Appeals? See, New Jersey Supreme Court? That’s how it’s done.

And now I’d love to rewrite the “The Music Man” to make it a gay romance. Darien the Librarian, anyone?