Obama Administration Begins to Change Its Tune on DOMA

The Obama administration came out today and said that DOMA is wrong and is discriminatory.  The Department of Justice is, however, still defending the law in court, saying that the DOJ has to defend laws it doesn’t agree with.

President Obama made clear Monday that he favors the repeal of the Defense of Marriage Act, and intends to ask Congress to repeal the 13-year-old law that denies benefits to domestic partners of federal employees and allows states to reject same-sex marriages performed in other states.

Obama has long opposed the law, which he has called discriminatory. But his Justice Department has angered the gay community, which favored Obama by a wide margin in last year’s election, by defending the law in court. The administration has said it is standard practice for the Justice Department to do so, even for laws that it does not agree with.

The Justice Department did so again Monday in its response in Smelt v. United States, a case before a U.S. District Court in California. But, for the first time, the filing itself made clear that the administration “does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.”

Some people have said that the DOJ doesn’t have to defend a law it doesn’t agree with.  I’m not so sure about that.  It seems to me that laws that have been duly enacted have to be enforced.  (But as I’ve said over and over, I’m not a lawyer and if I’m wrong about this, please correct me.)  The tone that’s taken, though, when defending a law is another matter entirely.  The Obama DOJ’s previous defense of DOMA was a slap in the face. 

The brief today strikes an entirely different tone.  This seems to me to be a repudiation of the earlier DOMA brief (linked above).  I still haven’t seen the president call on Nancy Pelosi and Harry Reid to get a bill repealing DOMA (and DADT) passed, though.  So this is welcome, but it seems a bit weak at this point.

And as for what this brief means, see Law Dork:

For those, reasonably, asking if this brief in any way “takes back” the earlier, problematic arguments made in the previous DOJ Smelt brief, it does not.  But, what it does do is put that brief in context of the Administration’s opposition to the policy aims of DOMA.

In order to get a full picture of the Administration’s changed approach on defending DOMA, we will need to wait until mid-September, when the Justice Department files its Motion to Dismiss in Gill v. Office of Personnel Management et al., the Massachusetts GLAD case.  I previously discussed the Amended Complaint filed in the case by GLAD earlier this month.  The government’s response to the Complaint is due by Sept. 18.]

So, we wait on the legal front, for this brief.  And we continue to wait on the legislative front for this administration to get off the dime and actually do something for the gay community.

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.

Norm Coleman’s Ridiculous Court Fight

Norm Coleman, Al Franken’s Senate opponent in Minnesota, just can’t seem to face the reality that he has lost.  But still he fights on, quixotically.  He has repeatedly lost in state court; a three-judge panel yesterday allowed 351 previously-rejected absentee ballots to be counted.  That resulted in Franken’s lead growing from 225 votes to 312, which Coleman immediately said was an error by the court.  He then said that he would appeal to the Minnesota Supreme Court.  Does anyone think that if he loses there that federal court — and a years-long fight — doesn’t loom large?

That denies the citizens of Minnesota a representative in Washington.  It also, not incidentally, denies the Democrats in the Senate a 59th vote, which would bring them very close to the 60-vote margin needed to stop filibusters.  That’s immaterial in my view.  Coleman has lost.  He needs to face up to reality and concede.

If he doesn’t, that could put Governor Tim Pawlenty — who has presidential aspirations in 2012 — on the spot.  It would be a no-win position for him.  Does he want to anger the voters in his own state who voted for Franken and who think that he should be seated in the Senate, or does he want to anger his party base which he will need to win a Republican nomination?  It’s a Solomonic problem, but there’s no baby to split in two.  He’ll have to make a choice.

This battle seems to be part of a larger Republican strategy: If you can’t win at the ballot box, win in the courtroom.  The problem here is that it can’t be won in the courtroom or the ballot box and all Coleman is doing is dragging out the inevitable.

Something in a Politico piece (via the Minneapolis Star Tribune) caught my eye:

To Republicans, the battle is about drawing a line in the sand after taking a brutal Election Day beating and claiming the moral high ground on voter-protection efforts — an argument typically associated with Democrats.

Does anyone really believe that “voter protection” is the real reason behind Coleman’s stalling action?  If you believe that, I have some nice beach front property I’d love to sell you.  No, it’s about politics and keeping as much power away from the other guy as possible.

The Republicans were beaten soundly last November.  They ran out of ideas, and it showed.  They still have no ideas and have no real leaders with new ideas.  (Don’t give me Newt Gingrich — he served four years as House Speaker and resigned from the House after losing House seats in the 1998 election.  He’s had three wives, and treated the first quite poorly, discussing divorce terms with her while she was recovering from cancer surgery.  Nice guy.)  They’ve shown that they’re leaderless and bereft of ideas since Obama took office, voting no on the stimulus and again on Obama’s budget. 

Coleman’s court battle looks to me to be a continuation of the delay and obfuscation tactics that Republicans are employing these days.  Regaining moral authority?  Right.

The Iowa Same-Sex Marriage Ruling

Make no mistake.  The ruling in Iowa’s Supreme Court is a major win for same-sex marriage.  Not only was the ruling unanimous, but it essentially called gays and lesbians and same-sex marriage normal.  It is, of course, but to have a court unanimously say it is groundbreaking.  And it completely changes the map of same-sex marriage; it is no longer confined to the “liberal” coasts.  It is in the heartland of America.

The AP in the San Francisco Chronicle:

Iowa’s Supreme Court legalized gay marriage Friday in a unanimous and emphatic decision that makes Iowa the third state — and first in the nation’s heartland — to allow same-sex couples to wed.

[snip]

“We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective,” the Supreme Court wrote.

Iowa lawmakers have “excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification.”

To issue any other decision, the justices said, “would be an abdication of our constitutional duty.”

The Iowa attorney general’s office said gay and lesbian couples can seek marriage licenses starting April 24, once the ruling is considered final.

Barring same-sex marriage “does not substantially further any important governmental objective.”  Of course it doesn’t.  And the earth isn’t going to open up and swallow Iowa for daring to legalize same-sex marriage.  No one’s existing marriage will be degraded, either.  It simply recognizes facts.  Gays and lesbians are responsible members of society who raise children and have committed, loving relationships with each other.

Coming so soon after the Vermont legislature voted to allow same-sex couples to marry, the past week or so has been quite a good one in the battle for full marriage rights. And the Republic will endure.

Of course, there’s still California — which used to be a civil rights leader in this nation — where Prop 8 will likely be upheld.  I sincerely hope, though, that the justices do the right thing even though it will get them into hot water with the conservatives.  We simply can’t let a simple majority take away rights from a minority.

Congratulations to Iowa, and to Vermont!

Unintended Consequences of Proposition 8

I was reading an article (from March 6) in the Sacramento Bee this morning (hat tip: Box Turtle Bulletin) that got me thinking.  Here are the pertinent parts:

The California Supreme Court could decide that there are two kinds of same-sex couples: those who can’t get married, and those who already did.

A ruling that upholds both voters’ November decision to ban gay marriage and the 18,000 same-sex marriages conducted earlier in California could come off as a safe compromise. But it also promises to keep alive an issue that has split the state as few others have.

Such a decision would give same-sex marriage advocates an avenue to pursue a federal appeal, and an argument for compelling the state to, as Associate Justice Ming Chin put it, “get out of the marriage business.”

Justices on the high court appear hesitant to overturn Proposition 8, while also reluctant to invalidate same-sex marriages performed before it passed, legal observers agreed Friday.

During Thursday’s oral arguments on a trio of lawsuits seeking to overturn the ban, Chin and Chief Justice Ronald George seemed to anticipate the difficulty in reconciling the state constitution’s promise of equality with its commitment to giving voters wide discretion to pass laws.

Chin, who was not part of the court majority that ruled last year to legalize same-sex marriage, twice asked whether the court should direct the state “to employ non-marriage terminology” and instead make only civil unions or domestic partnerships available to all.

Gay-rights lawyers and Pepperdine University law school dean Kenneth Starr, who was representing Proposition 8’s sponsors, agreed that making marriage the province of religious institutions was one way, however unanticipated, around the problem.

What I get from that is that same-sex marriage advocates could force the state to offer civil unions for all Californians who want to be civilly married and force marriage into having only a religious definition.  If religion has such a problem with the “marriage” for same-sex couples, and if all people are supposed to be treated the same under the law, isn’t that fair?  I’ve often thought that this would be an equitable way to go forward.  I’m less convinced now, though.   Marriage is what matters.  It is what society recognizes.  The problem is that it has two meanings — religious and secular.

The “civil unions for all” idea raises some questions in my mind.  How would the federal government recognize these unions?  What happens to existing marriages — both same- and opposite-sex?  Is this really what conservatives meant to do when they wanted to lock the marriage doors to same-sex couples?

More from the article:

Although the 14-word measure holds that “Only marriage between a man and a woman is valid or recognized in California,” the justices indicated their discomfort with dissolving the unions of gay and lesbian couples who married before the election.

Having some gay couples allowed to stay married while others are prohibited from saying “I do” would provide legally plausible, if politically debatable, grounds for an appeal under the equal protection clause of the U.S. Constitution, according to [David] Cruz [a constitutional law professor at the University of Southern California].

“If they say Proposition 8 is valid but it doesn’t touch existing marriages, what that raises is the fact that there are now these two groups of couples who are treated differently under the law for no functional reason,” he said.

California already affords same-sex couples who register as domestic partners all the rights and benefits of marriage. As a practical matter, that means wed and unwed same-sex couples should not have different experiences when it comes to issues such as hospital visitation rights, filing state income taxes or suing for child support.

In reality, though, service providers, employers and public agencies still have a hard time regarding domestic partners as the legal equivalent of married spouses, said Tobias Wolff, a University of Pennsylvania constitutional law professor. The confusion is especially great when such couples visit states without similar categories, Wolff said.

“It’s very easy to imagine there will be a lack of understanding, that there will be skepticism, that people will be challenged and need to start producing time- and date-stamped copies of their marriage licenses. It’s going to create a lot of serious burdens on the couples,” he said.

There are several points here.  First, creating two classes of same-sex couples — those who are married before and those who cannot be married — is certainly worth an appeal to federal court under the Equal Protection clause of the US Constitution.  That, I think, is a valid and convincing argument.  That’s the point of our Constitution.  All are equal under the law.  Having two classes of same-sex couples is anathema to that.  (I still think that the Equal Protection argument is a good one for same-sex marriage in general.)

I want to explore the conservatives’ intent in passing Proposition 8 a bit more, and explore the unintended consequences.  Their intent was clear — to limit marriage to being between a man and a woman in California.  However, as Professor Cruz says, “There is a long tradition of requiring different parts of the California Constitution to be harmonized.  It’s not necessarily what the voters intended – their only clear intent was to stop gay people from getting married.” 

Instead the Yes on 8 campaign (and subsequent defending of the proposition in court) may end up killing civil marriage for everyone in California.  That can’t be what they wanted to do.  All they wanted to do — according to their own campaign rhetoric — was to preserve the sanctity of marriage and keep gays out.  Wouldn’t it be ironic if, in their over-zealous defense of “traditional” marriage, they destroyed the institution?  That is, effectively, throwing out the baby with the bath water.

All same-sex couples want to do is to join the institution of marriage.  We don’t want to destroy it.  It will be very sad if that happens as a consequence of Proposition 8.

The Prop 8 Arguments

From everything I’m reading this afternoon, I still am not encouraged.  I still think it likely that there will still be existing same-sex marriages in California — those 18,000 or so who were married before Proposition 8 took effect.  But there won’t be any more going forward.  That, of course (if that is what the court does), would create a pocket of married same-sex couples.

Andrew Sullivan has a roundup of reactions.  Here is his post, with links to the sites with the reactions:

John Culhane live-blogged it:

If I had to guess, I’d say that those married between June and November 4, 2008 will still be married. Going forward, forget it. It’s time to dive back into the political process. I don’t expect a unanimous decision on either issue, but I’d be surprised if either vote is close. (I do think that there’s at least a chance that the retroactivity issue will be unanimous.)

Dale Carpenter agrees:

I’m out of the business of predicting with confidence what the California Supreme Court will do based on its oral arguments. So I’ll predict without confidence that: (1) the court will hold that Proposition 8 was a valid amendment, but (2) will also hold that the 18,000 same-sex marriages entered between June and November continue to be recognized and valid in California.

Marriage opponent Maggie Gallagher enjoyed herself:

The most fun was watching the justices grill the California state lawyer, poor man, who had to defend Attorney General Jerry Brown’s official position: Prop. 8 was an amendment, not a revision, but the court could strike it down anyway because it violated the “inalienable rights” clause of the California constitution. A joy to watch!

Andy Towle:

Two quick impressions, just from watching the proceedings, were that Justice Joyce Kennard, who was in the majority 4-3 ruling for the legalization of same-sex marriage last May and was the only justice in that majority to vote against hearing the challenges to Proposition 8 seemed to take an immediately aggressive position toward those challenging the measure. And Kenneth Starr, who immediately followed a rather bumbling and hesitant performance by Christopher Krueger, senior assistant attorney general under Attorney General Jerry Brown, displayed an almost arrogant ease in the courtroom that was only magnified by Krueger’s fits and starts.

Paul Cates, ACLU:

This case is not just about marriage or gay people. If a simple majority of the voters can take this core right away from gay people, it can take any right away from any other group as well (Kenneth Starr – who argued for the supporters of Prop 8 – acknowledged this in court today). If Prop. 8 is upheld, then Californians could, for example, vote to take religious freedom away from Muslims, or free speech rights away from women, or the right to vote away from Chinese-Americans. This case is important for every Californian: it’s about whether the limits we’ve set on the power of the majority have meaning.

Ethan Leib:

From what I heard, I didn’t think the Court seemed very eager to call it a revision and strike it down. 

Back to me, now (not Sullivan).  I am not hopeful that the court will overturn Propsition 8.  I think it will need to be back to the ballot box for same-sex marriage advocates.  And we better run a better campaign next time.

Prop 8 Will Likely Be Upheld

The Los Angeles Times analyzes today’s oral arguments in the California Supreme Court (hat tip: Box Turtle Bulletin).  It’s not exactly encouraging.  But the court may take some middle ground that upholds the 18,000 or so existing marriages while still upholding Proposition 8.

It seems to me that the strategy the advocates for same-sex couples are using is flawed and Jerry Brown’s argument has much more merit.  We’ll see what the court thinks.

The California Supreme Court may reveal Thursday whether it intends to uphold Proposition 8, and if so, whether an estimated 18,000 same-sex marriages will remain valid, during a high-stakes televised session that has sparked plans for demonstrations throughout the state.

By now, the court already has drafted a decision on the case, with an author and at least three other justices willing to sign it. Oral arguments sometimes result in changes to the draft, but rarely do they change the majority position. The ruling is due in 90 days.

Chief Justice Ronald M. George, who wrote the historic May 15, 2008, decision that gave same-sex couples the right to marry, will be the one to watch during the hearing because he is often in the majority and usually writes the rulings in the most controversial cases.

Most legal analysts expect that the court will garner enough votes to uphold existing marriages but not enough to overturn Proposition 8. The dissenters in May’s 4-3 marriage ruling said the decision should be left to the voters.

One conservative constitutional scholar has said that the court could both affirm its historic May 15 ruling giving gays equality and uphold Proposition 8 by requiring the state to use a term other than “marriage” and apply it to all couples, gay and straight.

“The alternatives are for the court to accept Proposition 8 and authorize the people to rewrite the Constitution in a way that undermines a basic principle of equality,” said Pepperdine law professor Douglas Kmiec. If the court overturns Proposition 8, “that is the short course toward impeachment.”

The court is under intense pressure. Opponents of gay marriage have threatened to mount a campaign to boot justices who vote to overturn the initiative. The last time voters ousted state high court justices was in 1986, when then-Chief Justice Rose Bird and two colleagues lost a retention election.

On the other side, the Legislature has passed two resolutions opposing Proposition 8, and protests are being planned statewide to urge the court to throw out the measure.

“It is one of the most important cases in the history of the California Supreme Court,” said Mark Rosenbaum, legal director of the ACLU of Southern California. “The core tenet of our constitutional democracy is that fundamental rights of historically disadvantaged minorities are not dependent on the whim of the majority.”

The challenges to the initiative are based on novel legal theories. Gay rights lawyers argue that the measure was an illegal constitutional revision, rather than a more limited amendment. The court has struck down constitutional amendments passed by voters as impermissible revisions only twice in its history, and there are relatively few precedents on the subject.

“While no case forecloses the revision argument, there is no case that really supports it, and most of the cases mildly cut against it,” said UC Davis law professor Vikram Amar.

Upholding existing same-sex marriages would be a lower hurdle for the court, Amar and other scholars said.

“There is enough ambiguity in Prop. 8 that the court could easily interpret the measure as not applying to existing marriages,” Amar said. “That is a legally plausible interpretation, and it is so clearly the just interpretation that I think getting four votes for that seems easier.”

State Atty. Gen. Jerry Brown’s office will ask the court to uphold the marriages and strike down the initiative as an illegal repeal of an inalienable right without compelling justification. Brown’s argument is even more novel than the revision challenge, which his office said had no merit.

The Proposition 8 case has attracted more friend-of-the-court briefs than the marriage dispute that led to last year’s historic ruling — the previous record-holder. Most of the outside groups that have weighed in have asked the court to overturn the initiative.

Pepperdine’s Kmiec said replacing the word “marriage” with another term would both leave intact the court’s May 15 ruling and deter a recall campaign that could damage the court as an institution. He said couples could still marry in their religious communities.

That would “restore a religious meaning to a word that is a religious word,” he said. Kmiec, a Catholic, said he reluctantly voted for Proposition 8 “because of the instructions of my faith community” but felt “entirely unsatisfied” with the outcome.

Well, now we’re back to civil unions.  If they are equal, that’s okay with me.  If they are unequal in any way, I have a major problem with that.  If that — civil unions — is what the court ends up doing for (to?) same-sex couples, they need to apply the same term to opposite-sex couples.  If a religious marriage is what a couple wants, they should head to their church or synagogue or other religious institution.  Let the state get out of the business of marriage per se, but have the state provide for a civil union that is marriage (in today’s terms) that provides the social contract that exists for married couples today. 

George, a moderate Republican, is considered a swing vote on the court and, until the marriage decision, was widely regarded as cautious. Scholars have said the marriage ruling would be pivotal to his legacy on the court.

“It is difficult to imagine, although obviously plausible, that the majority of justices who ruled in the marriage cases would so quickly endorse an undermining of at least a significant portion of their ruling,” said Kate Kendell, executive director of the San Francisco-based National Center for Lesbian Rights.

Pepperdine law school Dean Kenneth Starr, hired by the Proposition 8 campaign, will urge the court to uphold the measure and declare that existing same-sex marriages are no longer valid. Benefits, such as inheritance, acquired by couples during their marriages would not be taken away, but couples would have to register as domestic partners to protect their future rights.

“The people ultimately decided,” Starr wrote in his final brief in the case. “Under our system of constitutional government, that is the end of the matter.”

I agree that the people decided.  That doesn’t necessarily make it the right thing to do.  And I think we should remember what the framers of the Constitution (and Plato, and Tocqueville) were warning against when they talked about the tyranny of the majority.  The majority is being used here to deprive a distinct group of people of their rights.  That is in fact tyranny.  And that is why we have a court system — to call a halt to those situations.

So even if Prop 8 is upheld, same-sex couples will have full rights one day.  Perhaps the court can find some middle ground.  But with DOMA being challenged, and public opinion moving inexorably toward supporting full rights for gay people, it will happen.  The times, they are a-changing.

Guantanamo Bay Ruling

The Supreme Court said today that habeas corpus is still the rule of the land.  That basically means that Guantanamo will have to close, unless Bush can get legislation through a Democratic Congress.  So it’s one more thing that Bush has done to run roughshod over people’s civil liberties, all in the name of “security.”

His administration has been about lies and fear mongering.  He is the lamest of lame ducks.  It is mercifully almost over.  But he can still be dangerous, especially saber-rattling with Iran.  But this one is a win for the rule of law, and common decency.

The Judge Issue

This year’s presidential election is hugely important.  It’s not just because of the usual issues (defense, the war on terror, Social Security); it’s important because of the judges the next president will appoint — Supreme Court Justices, appeals court judges and federal trial judges.  It was important in 2004 as well.  George W. Bush was re-elected and appointed Roberts and Alito.  I’m sure they’re excellent judges, but Kerry would have appointed people a little more progressive.

There are issues that the courts will have to decide which will be coming before courts in the next few years.  I’m talking about issues like privacy, gay marriage, abortion, for example.  These judges need to understand that the Constitution is a living document and needs to be interpreted as such. 

The Founding Fathers could never have imagined a world where the Internet contains most of the world’s information electronically.  They had never conceived of computers or the people who use them to invade privacy.  They had never conceived of identity theft and the huge amount of work it takes to fix the damage that someone has done.  They could never have imagined a world in which two women or two men would want to marry each other.  They could never have imagined a world in which there would be such a debate on abortion.  They could never have written a Constitution to take these eventualities into account.  It’s clear to me that they meant it as a living document, to interpret it taking the times into account.

The choice is quite stark this fall.  Elect Barack Obama and he will be looking for judges in the mold of Earl Warren or Thurgood Marshall – people who understand that judges sometimes do have to act to right a wrong.  These judges will understand that the Constitution has to be interpreted in the times in which we live.  Elect John McCain and he will appoint “strict constructionists” — judges who view the Constitution as static, that it’s perfect as it is and needs to be treated as such.  McCain does not want activist judges.  Never mind that an activist Supreme Court handed George W. Bush the presidency in 2000.

The Los Angeles Times had an interesting piece on this in today’s paper.  It really points out the differences between Obama and McCain.  See the story here.

The comments from the Harvard law professors (quoted in the linked story) notwithstanding, I think Barack Obama is mostly correct.  I don’t think judges should have preconceived notions.  But without “activist” judges, we wouldn’t have Brown v. Board of Education, or Roe v. Wade, or even Miranda v. Arizona.  And we certainly wouldn’t have had President George W. Bush.