More Thoughts on Issues of the Day

More random thoughts on issues of the day:

• President Obama was awarded the Nobel Peace Prize today.  While I am a supporter of his, what has he done to win this already?  Keep in mind that the nomination deadline was 12 days after Obama took office (the deadline is February 1).  I think there is a good possibility that Obama could earn this prize later in his term as president, but he doesn’t seem to have done much yet other than lay out some goals and set a tone.
• State Assemblyman Tom Ammiano was out of line yesterday.  He yelled “You lie!” and “Kiss my gay ass!” to Governor Schwarzenegger yesterday during a speech the governor was making to a Democratic fundraiser in San Francisco.  Apparently the governor was not expected.  It was, after all, a Democratic fundraiser and Schwarzenegger is a Republican.  But Ammiano was out of line.  This kind of attack should have no place in American politics.  It doesn’t matter if emotions are running high.  That kind of thing is just not needed.  The only (slightly) redeeming factor is that Ammiano’s outburst did not come during a joint session of Congress.
• Apparently the National Republican Congressional Committee thinks that House Speaker Nancy Pelosi needs to be “put in her place” and said as much yesterday.  Do they not see how offensive that is?  Do they not see how sexist that is?  I’m not exactly a huge Nancy Pelosi supporter, but this just isn’t right.
• Charlie Rangel needs to resign.  Now.  Every day he doesn’t (and every day the House Democratic leadership continues to protect him), the chances grow that he’ll cost the Democrats in next year’s mid-term elections.  “The Republicans did it, too!” (with Tom DeLay) is not a good defense.  Sure, the Republicans are hypocritical in their posturing.  So what?  It only matters what Rangel did and the appearance of Democrats improperly protecting their own.
• Julian Bond is right on in his op-ed in today’s Washington Post.  LGBT people still do not have equal rights in America.  As he points out, our “…struggle is no less necessary, nor worthy, than a similar struggle fought by blacks several decades ago. Now, as then, Americans are denied rights simply because of who they are.”  It’s past time we had equal rights.  It’s also past time for Obama (and Nancy Pelosi and Harry Reid) to actually do something to help get those rights passed in Congress

California’s School and Prison Problem

The Los Angeles Times has some stories out this week about the overcrowding in California prisons and the problem with the huge increases in fees and tuition that will be charged to University of California students.  Those pieces, along with a San Francisco Chronicle story about the huge cuts made to education’s budget, illustrate a problem that will haunt California for a long time.  Simply put, if we don’t pay to educate our kids now, we’re going to pay to incarcerate them later.

It’s a question of values, really.  Do we prepare our children to lead productive lives, or do we lock them away when they are adults?  We’re doing the latter now, and we’re going to be doing a lot more of it in the future, too.  Don’t get me wrong — there will always be bad people in society, people who have gotten all the chances they should have and still do terrible things.  Prisons will always be needed for that reason.  But we’re adding to that population when people don’t even have a chance to get started in their lives because they can’t get a decent education.  (And no, not all of that is the state’s fault either; I believe in personal responsibility as well.)

Right now, Governor Schwarzenegger has until midnight (see the first link) to give a federal judge his plan to reduce the overcrowding in California prisons.  Currently the system has about 149,100 prisoners in a system designed for about 80,000.  And the budget for those prisons has almost doubled since 1999, from $3.22 billion to $5.57 billion in fiscal year 2008-2009.  The really telling statistic, though, is the cost per inmate over the same time period — $22,737 to $48,536 (see LA Times graph to the right).  That’s a huge increase, and it’s actually down slightly from fiscal 2007-2008.

And still California’s prisons are overcrowded.  The inmate population keeps rising, in large part because many of the inmates have nothing else to do except sell drugs or commit other crimes to survive.  The long term solution isn’t more prisons, even though those will probably be needed in the short term.  The solution is more and better schools and making sure that all California children get a good education and aren’t priced out of going to a good state school like UC Berkeley or UCLA.

Yet California cut its school budget by something like $8.4 billion this year (see third link above), after other cuts were previously made, totalling about $18 billion.  Yes, I know California’s budget crisis necessitated making hard choices.  But cutting like this is akin to eating your seeds instead of planting them.  You’re not hungry now, but you will be tomorrow.

That makes it necessary for the schools to lay off teachers and staff.  It also makes it necessary for the UC Regents to raise fees by a factor of almost four, for the 2010 spring term, as well as lay off and furlough professors and other staff.

[...] basic undergraduate fees for California residents next year would rise to about $10,300, not including room, board and other campus expenses. That figure would be 44% higher than in fall 2008.

In all, most UC undergraduates living in on-campus housing would pay more than $26,000 a year under the proposal, although officials said needy students would receive enough additional financial aid to cover the increases.

Yes, saddling them with more debt as they come out of school and start their lives.  That’s a huge burden.

Under the fee proposal, professional school students in areas such as medicine, law and dentistry also would see steeper increases over the next three years. For example, by 2012-13, a UC Berkeley law student would pay $51,818 per year, or 40% more than this year, and a UCLA medical student would pay $34,616, or 33% more. Those figures do not include the costs of living and books.

More huge burdens.

I’m not saying that education is without its problems.  I’m not saying that there isn’t waste, and I’m not saying that there aren’t ways to make the schools more efficient.  But the fact of the matter is that educating children requires money.  We have to pay for good teachers, and yes, we even need back office types in the schools, so that teachers get paid and have benefits.  We have to have good colleges and universities, and they can’t be priced so high as to make it unreasonably difficult to go or to pay back the student loans that are needed.

We’re shooting ourselves in the foot here in California, but I see the same thing happening all over the country.  Yes, we need prisons, but we need schools — good schools — more.

Equality California: Wait Until 2012 to Repeal Prop 8

So it’s been decided at the highest levels of the “gay establishment.”  We will wait until 2012 to try to repeal Proposition 8 in California. 

For the first time, we have the opportunity to choose the best time to go back to the ballot, and we strongly think 2012 is the way to go.

I suppose the thinking is that because it’s a presidential election, the turnout will be stronger.  The thinking probably also goes that because Obama will be on the ballot again, we can ride his coattails to victory.  It’s an idea, anyway.  But in the meantime, we have gay and lesbian families who are unable to marry, who are unable to protect their families.  That’s not directly the fault of Equality California, although the No on 8 campaign was weak, to be kind.  It never should have come to this.  It wouldn’t have, if the No on 8 people had taken this seriously and treated it as a campaign that could have been lost rather than one that was in the bag.

I don’t doubt their assessment: Proposition 8 can’t be repealed in 2010 and we have to wait until 2012.  My point is that it’s a long time to wait.  Prop 8 will continue to be attacked on legal and constitutional grounds, and have some chance of winning there (to my non-lawyer’s mind).  And some people will still try to get the Prop 8 repeal on the ballot for 2010.  Will the gay establishment in California back them if they’re successful?  That’s an important question; we cannot lose another statewide referendum; it would be a calamity.

In the meantime, though, same-sex marriage is threatened in Maine.  No on 1 needs our help.

Newsom Mandates Healthy Eating in San Francisco

San Francisco Mayor Gavin Newsom took another step toward a full nanny city on Wednesday when he issued an executive directive mandating healthy eating in San Francisco.  This, after he banned bottled water for city employees (which I agree with on fiscal grounds — bottled water costs money and honestly Hetch Hetchy water is excellent anyway), and ordered composting citywide.

Newsom on Wednesday issued an executive directive he hopes will dramatically change how San Franciscans eat.

All city departments have six months to conduct an audit of unused land – including empty lots, rooftops, windowsills and median strips – that could be turned into community gardens or farms that could benefit residents, either by working at them or purchasing the fresh produce. Food vendors that contract with the city must offer healthy and sustainable food. All vending machines on city property must also offer healthy options, and farmers’ markets must begin accepting food stamps, although some already do.

The mayor will send an ordinance to the Board of Supervisors within two months mandating that all food served in city jails, hospitals, homeless shelters and community centers be healthy.

And effective immediately, no more runs to the doughnut shop before meetings and conferences held by city workers. Instead, city employees must use guidelines created by the Health Department when ordering food for meetings.

Examples include cutting bagels into halves or quarters so people can take smaller portions and serving vegetables instead of potato chips.

“We have an eating and drinking problem in the United States of America,” Newsom said Wednesday. “It’s impacting our health, and it’s impacting our economy.”

Now honestly, this is an honorable initiative.  People do need to eat healthier.  Turning unused land into gardens is an excellent idea.  But just how far does government need to intrude on citizens’ lives by now mandating how and what people eat?  Obesity certainly is an issue in America (I struggle with my weight, too).  But mostly these are personal, lifestyle choices that people make, unless there is a health issue like a thyroid problem. 

California is already a nanny state of the worst kind (and this is coming from someone with genuinely progressive leanings).  The state mandates all kinds of things from limiting cell phone use in cars to proscribing smoking in a car with a child in it.  Again, some of these are excellent ideas.  But for a state that can’t even pass a budget, doesn’t it have better things to do than intrude on people’s choices?

Now, San Francisco wants to worry about how people eat.  President Obama has mentioned it as well, but you haven’t seen him issuing executive orders on this.  The United States is a republic founded on the basis of personal liberty.  We don’t need the government infringing upon that one little step at a time.  Pretty soon Big Brother will indeed be watching.

UPDATED: Another California Fiscal Year Begins With No Budget

Another July 1 has come and California does not have a budget.  That’s been the case since I moved here in the mid 1990s; in fact that has been the norm for longer than that. 

This time, though, the impasse is particularly bad. 

California’s historic fiscal crisis became even more difficult to resolve today, after the state Senate failed to pass three bills that would have averted an immediate cash crunch.

The bills – which would have made immediate cuts in schools, saved the state additional cash by deferring certain payments to schools and made technical changes in how the state shifts funds from redevelopment agencies to schools – were unable to gain the required two-thirds majority support in the Senate by the midnight deadline. The failure of the bills could push the deficit to more than $27 billion.

Legislators are trying to solve a $24.3 billion deficit, which just got worse by another $3 billion because they missed the deadline.  Now the state will begin to issue IOUs to pay its bills probably as early as tomorrow.

Democratic legislators are trying to deal with that piecemeal, but Governor Schwarzenegger insists that the legislature deal with the entire deficit at once, something that seems to be an impossible task.  Schwarzenegger is also insisting that there be no new taxes on anything and promises to veto anything that passes that contains new taxes.  He is insisting that the legislature not kick the can down the road.  Personally, I think Schwarzenegger is being needlessly hardheaded on this.  There is no pragmatism in California at the moment, just people in entrenched positions, launching occasional forays against the other side’s emplaced machine gun nests.

The legislature is hindered by a requirement that budgets pass with a two-thirds majority, a provision that was enshrined in the state constitution when Proposition 13 passed in 1978.  That measure is still popular in California, largely because people vote (understandably) with their own pocketbooks in mind.  That, and all the mandated spending passed by California’s overly robust referendum system, has hog-tied the legislature.  It is a genuine struggle each year to get the required majority and to keep the budget within constitutional limits.  Because you know that if they don’t, someone will sue.

There is no help from anywhere.  The federal government doesn’t really want to help, although if California makes all the budget cuts it needs to make, it will deepen an already bad recession in California and in the rest of the country.

States across the nation are suffering the effects of lost tax revenue in the worst economic downturn since the Great Depression. California’s woes are similar and different in kind, played out on a grand scale in a state that boasts the world’s eighth largest economy and a Hollywood star in the lead role. After voters rejected a slew of convoluted budget-balancing measures, the governor has proposed cuts to programs that would make California more like a struggling Third World state than 21st century America: welfare subsistence benefits would end, 1 million poor children would lose health care, college aid for the state’s best and brightest would be phased out, nonviolent prisoners would be released, hundreds of state parks would be shuttered, and thousands of teachers would lose their jobs.

[snip]

This week, however, the Obama Administration said it was not going to do anything to help California right now, believing that the state should try to get its budget mess in order first. There are good reasons for the Treasury not to rush to California’s aid. If it backstops Sacramento, rewarding the state’s bad behavior, it would set an example for other states to follow. A nightmare scenario: the Federal Government backs California’s loans, which leads to a downgrading of the Treasury’s credit rating and the unnerving of the global credit markets. Spooked, the Chinese government, which currently bankrolls a large portion of the U.S. deficit, decides to take its money elsewhere.

Stark news indeed.  California is in shambles, a far cry from Pat Brown era, when the state spent loads of money on freeways, aqueducts, schools, universities that were the best in the world.

So, how did the state get here?  I’ve alluded to that a little above.  Proposition 13 bears much of the blame.  It requires a two-thirds majority in the legislature to pass a budget or to raise taxes.  Then we have other propositions — like Proposition 98 that sets education spending levels — that mandate state spending but doesn’t say how the legislature has to pay for that mandated spending.  It’s a real mess (and I know I’ve over-simplified it).  California’s dream, as Harold Meyerson writes today, is decimated.

In Sacramento, they can hear the chimes at midnight. State legislators and Gov. Arnold Schwarzenegger have been told by State Controller John Chiang that he will be compelled to pay the state’s bills with IOUs starting tomorrow unless they come up with a way to close California’s mammoth $24 billion deficit.

[snip]

But California is a special case simply because it’s so big. Closing California’s budget gap entirely through cutbacks in programs, as Schwarzenegger and the Republicans in the legislature propose, will deepen not only the state’s recession but also the nation’s. Fully 1 in 4 of the nation’s underwater mortgages, for instance, are on California homes, and the effects of the governor’s proposed cuts — which UCLA’s Anderson School of Business estimates will cause 60,000 state employees to lose their jobs — will be to create a new wave of foreclosures and toxic assets on the banks’ books. California accounts for 12 percent of the nation’s gross domestic product and a disproportionate share of the federal government’s revenues (and for every dollar that Californians pay to the feds, they get just 80 cents back in services).

Right-wing ideologues see the crisis as an opportunity to shrink government regardless of the consequences. Schwarzenegger is proposing to end welfare, not just as we know it but altogether, and to throw 1 million children off the rolls of the state’s healthy families program. But the consequences of closing the deficit simply through cutbacks will be felt by more than the poor. Already reeling from $15 billion in cutbacks that the state put through in February, many school districts, including that of Los Angeles, have canceled summer school this year. Scholarships that enable students of modest means to attend California’s fabled university system have been slashed. Most of the state’s parks may have to be closed as well.

The terrible irony in decimating the public sector to save the state is that the California that was the epicenter of the postwar American dream was fundamentally a creation of government. Fighting a Pacific war during World War II compelled the federal government to spend billions on California industry and infrastructure, and the state was the leading beneficiary of Pentagon dollars during the Cold War. As Kevin Starr, California’s leading historian, points out in “Golden Dreams,” his brilliant new history of the state in the 1950s and early ’60s, fully 40 percent of all defense dollars for manufacturing and research in 1959 went to California, anchoring the state’s booming economy in a well-paid workforce that was either unionized or professionalized, and seeding an electronics and high-tech sector that was to blossom in the following decades. Building on that prosperity to create more prosperity, Earl Warren, Goodwin Knight and Pat Brown — two Republicans, one Democrat — invested state dollars in schools, universities, freeways and aqueducts that were the best in the world. The Golden State was never more golden.

Today, its governor seems determined to turn that gold to dross. On Monday, the Democrats in the legislature passed a budget that included cuts of $11 billion, levied a tax on oil companies and tobacco, and raised auto registration fees by $15 per car to keep the state parks from closing. Schwarzenegger reiterated his refusal to raise any taxes or fees and said he would veto the budget.

From a model for far-sighted investments in the future, California has become a state that uninvests in the present and has no vision at all for the future. Proposition 13, enacted by state voters in 1978, effectively blocked its cities and counties from funding their own endeavors, and the Republican minority in the legislature, abetted by Schwarzenegger, has made it all but impossible to invest in the kind of projects that Warren, Knight and Brown undertook. Today’s California visionaries are calling for a constitutional convention to rewrite the plainly dysfunctional rules by which the state governs itself. It is not only Californians but also America that has a stake in their success. A California that decimates itself during recessions drags the rest of the nation down with it.

I agree with the suggestion in the last paragraph of Meyerson’s piece.  It’s time for a constitutional convention in California.  The system of government we have now is not working.  When something doesn’t work for as long as California’s constitution hasn’t worked, it’s time to try something else.  Prop 13 needs to be repealed (as does Prop 8, for that matter).  The people need to stop mandating spending that sounds good but isn’t actually provided for, putting the legislature behind the 8-ball.  The referendum system needs to be completely overhauled.

California needs to dig out of this mess, and will probably require federal help to do it.  But it has to help itself in the long run and enact some sensible political system reforms so that this doesn’t happen again.

UPDATE: Governor Declares State of Emergency

Gov. Arnold Schwarzenegger declared a fiscal emergency today citing the Legislature’s inability to pass a comprehensive solution to solve the state’s $24.3 billion deficit.

The Republican governor called a legislative special session under Proposition 58, which requires lawmakers to adopt a plan to close the deficit within 45 days.

In addition, the governor signed an executive order forcing 220,000 state workers to take a third furlough day without pay beginning this month.

What good will that do?  The legislature can’t fulfill its constitutional requirements to pass a budget already. 

2010 Too Soon to Repeal Prop 8?

Dale Carpenter thinks it would be folly to try repeal Prop 8 next year in California.  He lays out a compelling case, too, in a post on the Independent Gay Forum.

On November 2, 2010:

1. A repeal of Prop 8, in some form, will be on the California ballot.
2. About $60 million will have been raised in the effort to repeal Prop 8.
3. The repeal will fail.
4. The margin of loss for SSM advocates in California will be greater than the margin of loss in November 2008, probably in the neighborhood of 46% “yes” (for repeal) and 54% “no” (against repeal).

These are very adamant predictions.  He then lays out his case to support each of his predictions, which I’ll let you read at the linked post.

More from Carpenter, as he sums up:

The longer we wait for repeal, the more likely we’ll win. This assumes that younger voters continue to support SSM, that older voters gradually get used to the idea, and that the oldest die-hard opponents succumb to certain actuarial realities over time. So, all else being equal, 2012 would more likely produce a victory for SSM than would 2010. And 2014 or 2016 would be even more likely, although gaming results that far out is hazardous because of political factors that have nothing to do with repealing Prop 8 (like whether Obama serves a second term and Republicans take back the White House in 2016).

What would be the harm in rolling the dice in 2010, even if 2012 is a better bet? We might still win in 2010, after all, which would be great. But what if we lose in 2010? We just put it back on the ballot in 2012, then 2014, then 2016, until we win.

The problem is that losing has consequences beyond the immediate loss. Initiatives — from gathering the needed signatures to running an effective campaign to winning — require a huge investment of money, people, and time. Such resources are finite. The $60 million or more that will be spent in 2010 could go to other things, like state and congressional elections or fighting a possible SSM repeal (Maine? Iowa?) or amendment ban in another state. Those volunteers and organizers could be doing other productive things with their time. And losing in 2010, especially if the margin is greater than in 2008, will be deflating. It will harm morale. It will scare off legislators elsewhere. And it will be taken (incorrectly) as a sign that the tide is beginning to turn against SSM, with numerous political consequences in the short term. Losing doesn’t mean you start from scratch the next time you try. It means you start from scratch with a bigger political, psychological, and financial burden. Waiting until 2012 would be better, in this sense, than losing in 2010 and trying again in 2012.

The only thing that can stop the mad dash to 2010 is donors, both inside and outside California. They can refuse to fund the initiative drive, which will mean that it will fail to make the ballot. That’s what I hope will happen. Supporting SSM does not mean pressing for it everywhere, at any time, by any means. It means thinking hard about the choices, the likely outcomes, and the consequences of those outcomes.

But if a repeal makes it to the ballot in 2010, we’ll have no choice but to join the fight.

As I re-read his summation, the more I think that he might be right and that trying to repeal Prop 8 in 2010 would be folly.  And of course we want — and deserve, really — Prop 8 repealed as soon as possible.  But is it better to wait until 2012? 

As Carpenter points out, 2012 is a presidential election year.  Presumably, President Obama will be on the ballot trying to be reelected.  That should bring out more “liberal” voters, people who would be more likely to vote to repeal Prop 8.  Let’s face it, unless you’re gay (or care deeply for someone who is), you’re not likely to go out to vote based on a ballot measure that would repeal Prop 8.  Conversely, it could bring out the more conservative people who vote on “values issues.”

I would rather be patient and wait a couple of years than be defeated again next fall and start to have this issue become “old” in people’s minds and have them start turning off as it becomes old hat.  But perhaps I’m taking an overly pessimistic view.    So what do you think?  Should we go for it next year, or wait until 2012?  Vote below, and tell us why in the comments.

California’s Day of Reckoning

When all of the ballot measures (except the one limiting pay increases for the legislature) on the May 19 special election failed, it brought home the fact that California has lived far beyond its means for far too long.  Californians want to have myriad government services, but they don’t want to pay the freight. 

That means that California’s day of reckoning is here, according to Governor Schwarzenegger.  Yesterday, in a short speech to the legislature, he pushed for quick action on the immense budget deficit.

Gov. Arnold Schwarzenegger, in a rare joint legislative session to address the state’s fiscal crisis, urged lawmakers on Tuesday to swiftly close California’s huge deficit and make lasting changes to shrink government.

Schwarzenegger didn’t mince words in sounding the alarm for quick action to close a $24.3 billion deficit through June 2010.

“California’s day of reckoning is here,” he said in a somber speech on the floor of the state Assembly that lasted less than 12 minutes. “Our wallet is empty. Our bank is closed. Our credit is dried up.”

Schwarzenegger’s address came a day after his finance officials finished describing the governor’s spending reduction ideas to a joint legislative budget committee that began meeting last week to deal with the fiscal emergency.

There has been a fiscal emergency in California for years, really.  The state spends more than it takes in and has for years.  There really shouldn’t be a huge surprise that this house of cards has finally fallen. 

It’s pretty simple to me: If I make $50,000 per year (that is not my salary, for the record), I can’t spend more than that.  Sure, I can go into debt for a house or car, but I can’t run up my credit cards buying flat-screen televisions and vacations to Europe, no matter how much I might want those things.  And the sum of all those payments — house payment, car payment, utilities, food, day care, etc. —  can’t exceed my salary.  If it does, I have a deficit situation.

The state has the same issue.  (I know that this is drastically over-simplified.  I recognize that there is good debt — bonds for roads or schools, for example – and bad.)  But still the sum of all the outflows can’t exceed the inflows.  Especially in California, where a balanced budget is required by law.

We’re in a huge budget mess now.  Spending has far exceeded tax receipts for years.  So what to do?  We either have to raise taxes — not easy in California even in a good economy as it required a two-thirds vote in the legislature – or we have to cut spending.  Probably both will be necessary. 

Schwarzenegger wants to do it all by cutting spending:

In his speech, Schwarzenegger reiterated his belief that voters’ rejection of his budget-related ballot measures in the May 19 special election carried the strong message that they want state leaders to solve the deficit using cuts, not tax increases or borrowing.

The governor’s plan includes deep spending cuts that would close more than 200 state parks, release certain prison inmates early, eliminate health and welfare programs, phase out cash grants to college students and cut state workers’ pay.

Schwarzenegger said the cuts are difficult for him to accept as well.

“I know the consequences of these cuts are not just dollars,” he said.

But the state simply must live within its means, he said.

The governor also argued strongly for restructuring government, making it more efficient and even lifting rules on how school districts use their funds. His ideas included:

– Privatizing state prisons to lower the current cost per inmate of $49,000 to the national average of $32,000.

– Saving money by making public school textbooks available in digital formats and possibly using the savings to hire more teachers.

– Lifting state rules that could save money at the local level. School districts, for example, could cut costs by hiring contractors for school maintenance instead of being required by the state to employ those workers.

– Eliminating the Integrated Waste Management Board, the Court Reporters Board, the Department of Boating and Waterways, and the Inspection and Maintenance Review Committee, and doing away with or consolidating other boards, commissions and departments.

– Selling state properties, such as San Quentin State Prison and the Cow Palace, to pay off debt.

“I will not cut a dollar from education, a dollar from health care, a dollar from public safety, or a dollar from state parks without first cutting the Waste Management Board,” he said.

That agency pays salaries of more than $132,000 a year to five board members, three of them former lawmakers, including former state Sen. Carole Migden of San Francisco, and has been a source of contention for Schwarzenegger, who wants to bring the functions of the board under one of the agencies that the governor controls.

(And none of that addresses the deficit in the unemployment insurance fund either, by the way, which is another ticking time bomb in California.)

That means, of course, that programs that help a lot of people are going to be cut or eliminated.  That means that class sizes will increase.  Either that, or there needs to be another $30 to $40 billion in new taxes. 

The bottom line is that California got itself into this budget mess.  Its voter-approved programs (like Proposition 13) have tied the legislature’s hands in raising taxes when they needed to be raised.  We could have had smaller increases — and saved programs — if we had been clear-eyed about the real costs of all these programs. 

Regardless, the current fiscal emergencies need to be fixed now.  And then the underlying, systemic issues have to be fixed, too.

I’m a Democrat.  I have a progressive point of view.  I love social programs designed to help the elderly or the disabled; they are important.  But we have to pay for them if we want them.  And if we don’t want to pay for them, we can’t have them.  It’s really that simple.

More on the Federal Marriage Lawsuit

Pam’s House Blend posted quite an interesting point of view from a legal scholar — Tobias Wolff, a law professor at the University of Pennsylvania Law School.  He thinks that only the US Supreme Court can hear the marriage case and decide it.  If that is the case — and this is the only opinion on this that I’ve seen so far — then Boies and Olson are playing a truly dangerous game with same-sex marriage rights. 

I know — nothing ventured, nothing gained.  But if this case loses in the Supreme Court — and let’s not forget the make up of this Court — marriage rights will be set back by perhaps decades.

Here’s the portion of Pam’s post that’s really got me thinking (although her whole post — linked above — is excellent and deserves to be read in its entirety):

In 1972 — 5 years after Loving v. Virginia, the anti-miscegenation case — the Supreme Court actually did weigh in on the question of the federal constitutional argument for marriage equality.  In a case called Baker v. Nelson, the Minnesota courts had denied a marriage equality claim by a gay couple.  The case was appealed to the Supreme Court of the United States, which responded by dismissing the appeal “for want of a substantial federal question.”  This is a type of action that the Court uses only infrequently — even a lot of lawyers have not heard of it.  What it basically means is that the Supreme Court dismissed the appeal without issuing any written opinion, expressing the view that there was no serious federal or constitutional issue to be decided — in other words, it said that it could dismiss without even issuing a written opinion because the claim on appeal did not have enough merit to warrant a full explanation.

This kind of dismissal is binding on the lower federal courts.  (It is not binding on state courts, though some choose to follow it anyway.)  What that means is that, when the Supreme Court has spoken to a federal issue in this backhanded way, and the exact same issue comes before a lower federal court in a later case, the proper thing for the lower federal court to do is to dismiss the case because it is bound by the Supreme Court’s earlier action.

As should go without saying, the Supreme Court’s summary dismissal in Baker v. Nelson was flat wrong.  It was wrong when it was decided in 1972, and, more to the point, I doubt that any serious lawyer would argue that it can be defended on the merits today.  Even if you disagree with the constitutional arguments in favor of marriage equality, I don’t think anyone could argue today that the issue does not present a serious and substantial question, especially in light of the Court’s rulings in Romer v. Evans (the Colorado / Amendment 2 case from 1996) and Lawrence v. Texas.

But the Supreme Court has also said, on several occasions and very forcefully, that lower federal courts are not permitted to disregard binding Supreme Court precedent simply because there have been intervening changes in the Court’s own cases that undermine the original decision.  Rather, the Supreme Court has said that it is the Court’s job, not the job of lower federal courts, to say when an earlier Supreme Court precedent has been effectively overruled by subsequent developments.

What does all of this mean for the Olson / Boies lawsuit?  Insofar as their lawsuit argues that marriage equality for everyone is required under the U.S. Constitution, there is a strong argument that the lower federal courts should simply dismiss and decline to hear the case because they are bound by Baker v. Nelson.  If that happens, then the Supreme Court itself is the only one that could overrule its earlier precedent and actually decide the case on the merits.

This is an important fact to understand for a number of reasons.  First, as a simple matter of predicting what will happen, it’s entirely possible that the Olson / Boies lawsuit will be dismissed very quickly by the lower federal courts.  Second, it reinforces the point made by the LGBT groups about the importance of laying a solid groundwork before we get our one shot at litigating this issue before the Supreme Court (and, realistically, we will likely get only one shot).  Baker v. Nelson prevents the lower federal courts from engaging in the ordinary process of wrestling with a contentious issue in a series of cases before the Supreme Court finally weighs in.  It is therefore all the more important to develop a solid foundation of precedent in the state courts, because we may not have the opportunity to do that in the federal courts.  And, with all due respect to Olson and Boies and despite my whole-hearted agreement that we should not have to wait to enjoy the rights that we deserve, the fact is that the Civil Rights Movement was the most strategic, careful and patient litigation effort that this country had ever seen, waiting decades to bring the school desegregation and anti-miscegenation cases until they knew that they had laid a sufficient groundwork to achieve a victory before the Supreme Court.  I am thrilled at the outrage that these two men feel on our behalf and I welcome their input and their efforts.  But they do need to learn their history.

Two more quick points.  This kind of “dismissal for want of a substantial federal question” is not a good way to decide cases, and there is a strong argument that it should always be construed narrowly.  So, for example, in the challenge to the federal portions of DOMA that GLAD has brought in Massachusetts federal court, Baker v. Nelson should not pose any obstacle.  GLAD is raising a very different kind of claim — that the federal government can’t discriminate against couples who have already been validly married by their home state.  The lower federal courts are free to decide that issue on its merits.

By the same token, if Olson and Boies had brought a much narrower challenge to Proposition 8 — if they had argued that the particular sequence of events in California raised a unique constitutional problem because Prop 8 took marriage away from a group of people who already enjoyed equal rights under state law — then matters would be different.  Baker v. Nelson probably would not control a more carefully drafted lawsuit like that, and the dangers associated with such a lawsuit might be somewhat more contained (though there would still be serious questions about whether it represents the right approach).  There are hints of that more narrow argument in the Olson / Boies complaint, but only hints — in the end, they do not make the more careful argument but instead just go for broke.

There’s a lot of food for thought here.  As I said, I haven’t seen any other opinions on this so far.  But this is a high-stakes game here, played with people’s lives.  I’m sure Olson and Boies know that, but I hope they keep it in the forefront of their minds.

Prop 8 Challenged in Federal Court

This is interesting.  David Boies (who represented Al Gore in Bush v. Gore) and Theodore Olson (a former Solicitor General who also represented Bush in Bush v. Gore) have filed suit in federal court, saying that because the Californian Supreme Court upheld Proposition 8, they have created a category of “second-class citizens” in violation of that category’s federal rights.  They have also asked for preliminary injunction to restore marriage rights to same-sex couples while the lawsuit is being litigated.

Law Dork has more:

Ted Olson, President George W. Bush’s Solicitor General and counsel for him in Bush v. Gore, and David Boies, best known for leading the Justice Department lawsuit against Microsoft and then representing Vice President Al Gore in Bush v. Gore, are teaming up to have filed a case in federal court on May 22 challenging Proposition 8.

The San Francisco Chronicle expands:

Theodore B. Olson and David Boies, long identified as opposing forces for conservative and liberal groups, filed a lawsuit in federal court on behalf of two gay men and two gay women, arguing that a California constitutional amendment eliminating the right of gay couples to marry violates the U.S. constitutional guarantees of equal protection and due process.

Olson said he hopes the case will wind up before the U.S. Supreme Court.

“This is a federal question,” Olson said in a telephone interview Tuesday. “This is about the rights of individuals to be treated equally and not be stigmatized.”

He said that he and Boies, who have become close friends in the years since Bush v. Gore, decided to collaborate on the issue.

“We wanted to be a symbol of the fact that this not a conservative or a liberal issue. We want to send a signal that this is an important constitutional issue involving equal rights for all Americans,” Olson said.

[snip]

The lawsuit names six California officials as defendants, including Gov. Arnold Schwarzenegger and Attorney General Jerry Brown. It cites numerous precedents including the 1967 case of Loving v. Virginia, which struck down bans on interracial marriage. It cites language in that decision that holds “marriage is one of the basic civil rights of man, fundamental to our very existence and survival.”

The lawyers said that by relegating same-sex unions to “the separate-but-unequal institution of domestic partnership,” California is violating the 14th Amendment to the U.S. Constitution, which guarantees equal protection for all.

They cite numerous alleged violations of the federal amendment including singling out gays and lesbians for a disfavored legal status and discriminating on the basis of gender and sexual orientation.

“We believe this is the kind of matter where Americans must come together and recognize the rights of all citizens,” Olson said.

The lawsuit is not an appeal of Tuesday’s state high court decision but rather a challenge of the Proposition 8 constitutional amendment. It was assumed that federal courts would be waiting for the California decision before deciding whether to enter the fray. The lawyers hoped that filing early would give them priority to enter the federal courts.

Olson said no matter how the case is decided in the district court, either side would likely appeal to the 9th U.S. Circuit Court of Appeal. A decision there could be appealed to the U.S. Supreme Court, setting up the ultimate legal contest.

Olson, a former U.S. solicitor general, has argued 55 cases before the U.S. Supreme Court. He has prevailed in more than 75 percent of those arguments. He has served in high-level positions at the U.S. Department of Justice in the Reagan and George W. Bush administrations.

Besides the Bush v. Gore case, Boies has made headlines for other cases, including his successful defense of NASCAR against antitrust charges. He collected a record $4 billion for American Express in its litigation against Visa and MasterCard in 2008.

These are two very high-powered lawyers teaming up to defeat Proposition 8.  I really wonder, though, if this is in the best interest of the gay community at this time.  A case leading to the Supreme Court — this court, even with Sotomayor — is likely to fail and could cause a huge backlash.  Gay rights organizations agree with that view.  On the other hand, timidity is a large part of why Prop 8 was passed last fall.  Perhaps Olson and Boies are subscribing to the l’audace, l’audace, toujours l’audace theory.  Regardless, I hope they know what they’re doing.

I still think that same-sex marriage will end up at the Supreme Court one day, maybe soon, unless Congress and the president get into this fight and repeal DOMA (and DADT).  I would rather gay rights come from the legislative process (and I know this is wanting it both ways) even though I think the California Supreme Court’s decision was wrong.  Of course, Prop 8 could be moot next year, when a new ballot measure to repeal Prop 8 is passed by voters.

A Small Majority Can Now Withhold Rights

California’s Supreme Court upheld Proposition 8 in a 6-1 vote.  The justices created a pocket of married same-sex couples — the 18,000 or so couples who married get to stay married — while banning any further same-sex marriages in California.  It may have been the right decision under California’s law — I’ll leave that to the legal experts, which I am not – but the implications are much further reaching than just same-sex marriage.  I laid out some of these implications in a post back in March.

Because the Court decided in favor of Prop 8, it now means that a small majority can decided which groups of people get which civil rights, within the constraints of federal law, anyway.  From my March post:

Much has been made of the claim that same-sex marriage is not about civil rights, that it’s about same-sex couples wanting special rights.  The argument goes that being gay is not an immutable characteristic like race.  That’s false, of course.  Do you think, honestly, that people choose to have a more difficult life?  Of course not.  It’s who we are.  It’s a given in our lives, just like being straight is a given in straight people’s lives.

Terrance is asking the right questions:

• Which of your civil rights do you want to put to a majority vote?
• Which of your civil rights do we get to vote on?
• Who gets to vote on your civil rights?

These are the correct questions.  Who’s next?  Whose rights are next on the chopping block?  That can happen now in California; the Supreme Court said that’s perfectly fine.  I saw the writing on the wall — the Court was always going to rule this way.  But I suppose that I differ from some others: In my opinion, the third branch of government — in its capacity of reviewing laws — is there to provide a check to the other two branches of government. 

In California, because we have such a broken system of referenda, they also have to provide a check to the people.  All too often, the people write some pretty bad laws.  (Just look at Proposition 13 and the mess it’s helped to make of California’s budget process.)  In its opinion the Court stated that all power is inherent in the people.  That’s true.  However, the people sometimes need to be saved from themselves, which is what needed to happen here.  Now we have a situation in which a small majority can legislate rights for other groups.

I’m sure that’s not a precedent the Court wanted to make.  But they did make it.  And now we’ll have to live with the consequences of that decision until we have a new constitution in California that fixes our broken system of government.

Regardless of the Court’s wrong decision today, there has been much progress in the fight for gay rights in America; there is a lot to celebrate.  Iowa has same-sex marriage, as does Massachusetts and several other states.  It will happen in California and it will happen in all the other states, too.  I still hope that happens soon; I want my child to grow up knowing his family is stable and is married just like all the other families out there.  And I hope that Congress and President Obama get involved in this fight soon.  It is a cop-out for Obama to sit idly by in this, the most significant civil rights fight of this generation.

But the biggest takeaway is this: You may not be gay, but you may be next.  Watch out.