Author Archives: Tin Man

The Supreme Court and Prop 8

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On November 4, 2008, Barack Obama was elected president and California passed the unconscionable Proposition 8. Four years later, Barack Obama has been re-elected, but the legal status of same-sex couples in California remains in limbo.

And that limbo continues for at least several more months, because today the U.S. Supreme Court announced that it will hear the Prop 8 case.

This is a surprise, at least to me. It was nearly certain the Court would choose to hear one of the DOMA Section 3 cases, but it wasn’t certain what they would do about Prop 8. The issue before the Court with Section 3 of DOMA is potentially narrow: whether the federal government must recognize the marriages of same-sex couples who were legally married in states that allow it. This wouldn’t have any effect on states that discriminate against same-sex couples with regard to marriage. The issue before the Court with Prop 8 is, potentially, more sweeping: whether any state in the country has the right to prevent same-sex couples from marrying.

That’s not the way the Prop 8 case came up to the Court from the Ninth Circuit. The Ninth Circuit struck down Prop 8 on narrow reasoning: that once a state grants same-sex couples the right to marry, it can’t then take that right away. The only state where those circumstances are relevant is California, so the decision got the job done on as narrow grounds as possible in order to prevent being overruled by the U.S. Supreme Court.

But the U.S. Supreme Court can rule as broadly or as narrowly as it wishes on case before it. For instance, in the Citizens United case, the parties came to the Supreme Court on a pretty narrow issue: whether “electioneering communications” — in that instance, a political documentary — could be prohibited from airing on TV within 30 days of a primary election. But the Court decided, on its own accord, to broadly overturn a century of campaign finance law.

The Court can do one of several things in the Prop 8 case. It could rule that:

(1) The U.S. Constitution guarantees that same-sex couples have the right to get married. This would be a sweeping ruling that would probably lead to renewed calls for a constitutional amendment allowing states to discriminate against same-sex couples. Such an amendment would not likely get the 2/3 congressional majority it would need in order to be passed to the states, but there could be “massive resistance” in some states (let’s say, the southern states), where government officials may simply refuse to marry same-sex couples. This is the least likely ruling.

(2) Same-sex couples have no constitutional right to get married. States are free to allow it, but they don’t have to. In other words, we’d have the status quo, and marriage equality would continue its state-by-state progression. In 2016, there would probably be a ballot initiative in California to overturn Prop 8, and it would probably pass.

(3) The opponents of Prop 8 lack standing to argue the case. Interestingly, the Court directed the parties to brief this question. After Judge Walker struck down Prop 8, the state of California refused to appeal the case to the Ninth Circuit; Prop 8’s opponents asked the Ninth Circuit if they could argue it instead. The Ninth Circuit ruled, on the advice of the California Supreme Court, that it could. But the U.S. Supreme Court could find that the Prop 8 opponents are not a party to the case, in which case the Ninth Circuit’s Prop 8 ruling would be invalidated. It’s not clear what would happen then – would Judge Walker’s broad decision remain in effect? Or would it only apply to the couples who actually argued the case?

(4) Prop 8 is unconstitutional, but only because of the circumstances specific to California. In other words, it could affirm the Ninth Circuit’s decision.

I’m not sure the Court will do this. To be honest, the Ninth Circuit’s decision was a little disingenuous. The Ninth Circuit reached the right decision — that Prop 8 is unconstitutional — but it was a bit too clever. It doesn’t really make sense that the constitutional right to marry depends on whether a couple previously had the right to marry or not. The court, citing Romer v. Evans, says that taking away a pre-existing right is evidence of animus, and that animus is not a valid reason for taking away a right. But the people who didn’t want gay couples to get married after Prop 8 are the same people who didn’t want gay couples to get married before Prop 8. Why was it animus to believe so after Prop 8 passed, but not before? It doesn’t make sense, and I suspect a majority of the U.S. Supreme Court agrees, no matter how they feel about the substantive right at issue.

Then again, the Ninth Circuit did base its ruling on Romer, which said this very thing. So it’s possible that Kennedy (who wrote Romer) along with Ginsburg, Breyer, Sotomayor and Kagan could uphold the Ninth Circuit’s ruling using Romer as precendent.

But why would it do so? Why not just refuse to hear the case and let the Ninth Circuit’s decision stand? It takes four votes for the Supreme Court to hear a case, and we have no idea which justices voted to hear this one. If it was the four conservatives, perhaps they think they can win Kennedy over. Or Kennedy himself, who, for good and for ill, doesn’t seem to know the meaning of judicial restraint, might have voted to hear the case in order to put the Court’s own stamp on things. We have no way of knowing.

All we know for sure is that same-sex couples in California have been on a roller coaster over the last four years. Their hopes have been raised and dashed repeatedly. Last week it seemed that Prop 8 might soon be in history’s dustbin; the same seemed true earlier today. Instead, these couples will have to wait for justice until at least the end of June.

And justice delayed is justice denied.

Lincoln

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I finally saw Lincoln yesterday and very much enjoyed it. I don’t have a particularly long attention span, and I often start to get bored when a movie passes the 100-minute mark. But even though this film is two and a half hours long, it flew by for me.

The combination of Tony Kushner’s words with Steven Spielberg’s visual direction was an interesting one that mostly worked. There were some middlebrow, emotionally heavyhanded Spielbergian moments, but not too many, and they were balanced out by Kushner’s complex, earthbound, well-crafted screenplay.

The acting is across-the-board terrific — and I hadn’t realized how many familiar faces were in this movie. More than once I had to rack my brain: “Who is that? I know I’ve seen them before.” Hello, Stephen Spinella and Julie White. And I had forgotten that Lee Pace, whom I adore, was in this, so it was a nice treat when he showed up on screen.

Daniel Day-Lewis, as usual, inhabits his role completely. He’s one of those actors who transforms himself with every part he plays. Sally Field gives Mary Todd Lincoln an unsettling, off-kilter energy. Tommy Lee Jones chews up the screen as the radical congressman Thaddeus Stevens — he’s so much fun to watch. David Strathairn as William Seward is also wonderful.

It’s a great movie. Go see it.

Obama’s Re-Election

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At around 11:15 pm last night, when Rachel Maddow suddenly announced that Obama had won Ohio, putting him over the top, I felt joy, and also relief. A heavy tension lifted from my body, a tension that I’d felt for I don’t know how long — going back to the 2010 midterms, and even before then. Scott Brown’s election in early 2010? Death panels in the summer of 2009? The rise of the Tea Party a few months after Obama took office?

We have a weird system in this country: if you get elected president, you’re a success, but if you serve only one term as president, then you’re a failure. You’re only considered a successful present if you get re-elected. Presidents really start running for re-election the moment they win that first term.

And last night he did it. This man who came seemingly out of nowhere a few years ago to win the presidency in 2008 just did it again. One-term presidents (Carter, Bush I) are a blip; two-term presidents (Clinton, Bush II) get eras named after them. We’re not in the Obama blip; we’re in the Obama era. Now even more kids will grow up under a black president, and they will find nothing extraordinary about it at all.

Here is what I wrote about Barack Obama after he was elected four years ago:

Obama will make mistakes. He has difficult decisions ahead. Our country’s in the toilet. And day-to-day governance is messy, with its daily news cycles, the messy legislative process, wins and losses, Washington sniping, political roundtables on TV. Poetry gives way to prose. In the euphoria of his election and inauguration, Bill Clinton talked about changing the culture of Washington. So did George W. Bush. It never happened.

There will be times I disagree with President Obama, get annoyed at him, disappointed in him. There will be times when the public does as well.

But this is an extraordinary man. And if things are even a smidgen better than they’ve been for the last eight years, we’re in luck.

In retrospect, this seems pretty accurate to me. There have been a few times that I’ve been really pissed off at Obama: after Scott Brown’s election, after the midterms when it seemed like repealing Don’t Ask Don’t Tell was off the table, during the debt ceiling crisis, and most recently about a month ago, when he tanked during the first debate. But I always come back.

During the transition four years ago, when Obama was at the height of his promise and seemed like he’d be truly, remarkably transformative president along the lines of FDR, I read a biography of FDR. Thinking back to that time, happy thoughts mingle in my head — the holiday season, the promise of a revolutionary presidency, a good book.

Now we’re coming upon the holiday season again, and instead of being almost over, it turns out the Obama presidency is not yet even halfway done. (We’re about 47.5% through it, to be specific.) This is probably the happiest time for a two-term president: after getting re-elected, but before the second inauguration. There’s lots of work to do — fixing the fiscal cliff, most importantly — but he also gets to enjoy a moment of triumph.

Here’s Obama’s first press conference as president-elect, four years ago. It reminds me how crappy things were at the time. Things are still improving. But wow, how far we have come.