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Posts Tagged ‘292’

How Full the Glass?

May 28th, 2009 No comments

As I explained in my two posts on the Prop 8 decision (analyzing the majority and dissenting opinions), I was disheartened by the court’s retreat from the principle of equality it had so eloquently championed in In Re Marriage Cases. Dale Carpenter, among others, agrees with me on at least this point.

Not everyone sees the glass so empty, though. A regular reader invited me to comment on this reaction, from one of Andrew Sullivan’s readers:

“Have been through the Prop 8 opinion and dissents. It appears that this is a blockbuster pro-gay-rights decision, restricting the effect of Prop 8 to the effect of removing the designation of gay civil unions as ‘marriage,’ but upholding all equal rights previously declared by the Court; and, suggesting that if the opponents of gay rights were to try to restrict equal union rights for gays by constitutional change, such change would be an Amendment (not a revision) and thus would be procedurally much more difficult to accomplish.

“Being able to lay claim to the word ‘marriage’ is important, but in all other respects this appears to be a spectacular decision in favor of gay rights.

“The decision leaves intact the holding of the Marriage Cases that gays have the fundamental ‘right to marry’ under the California constitution, now and in the future; but unless and until the California constitution is again amended to the contrary, such unions cannot be called marriage.

“Opponents of gay civil union rights could try another ballot initiative to expressly amend the constitution to ban such rights, but under the Court’s ruling, that proposed amendment would have to ban such rights expressly to be effective. The Court’s opinion makes clear that generally, amendments will not be interpreted to repeal constitutional rights by implication. The disfavor of repeal by implication is a longstanding legal principle, and the Court’s use of it here is a deft way of sending this issue back to the political process while upholding gay civil union rights for the foreseeable future.  Under this approach by the Court, opponents of gay civil union rights would have to word any future proposed amendments in such a way as to expressly ban gay civil union rights, and as a result, their ability to secure a sufficient number of petition signatures to get the amendment on the ballot, and then a majority of votes at the polls, will be all the more difficult.

“This is a very, very good day for the cause of gay marriage rights.”

I think the nub of our disagreement is this: I’m concerned about the constitutional implications of the court’s willingness to jettison the principle of true equality based on a simple majority vote (even though, it must be said, there is some precedential support for its holding), while this reader sees things from a practical standpoint: All of the rights are still intact, and any effort to further limit them will have to be carefully crafted. Moreover, the court will read any restrictions very strictly, and might even be unwilling to support further compromises to equality.

This reader is probably right as to most of the above. But as I’ve stated, I don’t know (nor can anyone) how far the court would be willing to go in supporting more far-reaching restrictions on the rights of the GLBT community, including revoking domestic partnership protections. Indeed, the majority expressly stated that it was not going to decide that issue. The court is doubtless hoping it won’t have to deal with a “parade of horribles,” but hope is hardly a sound principle for constitutional decision-making. In my view, the court’s actions revealed principle to be rhetoric, expendable at the first sign of trouble (read: the prospect that the justices might not be retained when they next appear on the ballot).

Now comes the federal lawsuit. More on this presently.

Three Acts on Prop 8: III (A)

March 6th, 2009 No comments

So here we are: It appears very likely that, on or before June 5, 2009, the California Supreme Court will uphold the “right” of California voters to pass Prop 8, taking away a right — the right to marry — that the court had barely more than a year ago deemed fundamental. (Under California law, the court must decide the case within three months of oral argument.) This was a substantial risk that those filing the suit took, and many believed that this legal terrain would have been best left unmapped.

I don’t agree, because I think that the court’s decision, assuming I’m right in my prediction, will underscore that we have substantial work to do to win  “hearts and minds.” The reality that this struggle will continue to be difficult hit home immediately after last November’s elections: While they’re already being forgotten in the California-consumes-all-energy frenzy surrounding Prop 8, initiatives in several other states were also blows to the marriage equality movement. In Florida, for example, more than 60% of voters uncharitably passed an amendment restricting not only marriage rights but other forms of relationship recognition. It remains to be seen how broadly the law will be interpreted.    
But there is plenty of good news, too. As the always eloquent and perceptive Hendrik Hertzberg observed at the time, these measures had the feel of a “last stand.” His piece is required reading for those inclined to despair at recent (and upcoming?) developments and setbacks. Marshalling the pile of relevant polling data available as well as marriage developments in Massachusetts and Connecticut, he argues that the public’s view of gay rights and relationships is moving inexorably in a progressive direction.

He’s right, and things have only moved more briskly since last November. Indeed, Prop 8 may ultimately be remembered not because of its radical removal of fundamental rights from a “suspect class,: but because of the cascade of dormant activism it unleashed. In a post later today, I will offer a review and assessment of the legal, social, and political work that has been done since the dawning of the Age of Obama. As you’ll see, things are getting better.   

More on Prop 8: Quixotic Fundamental Rights

March 5th, 2009 No comments

Breaking my vow to blog only once a day, I can’t resist adding a few comments to my earlier, live-blogging post.First, calling something a “fundamental right” is essentially meaningless if it can be taken away by simple majority rule. Justice George’s opinion for the majority in last May’s In re Marriage Cases ruling contained lofty pronouncements about the right of all people to marry someone of their choosing, and about the clear message in the legislative approach of granting the rights of marriage while withholding the label. If I’m right in my prediction about Justice George’s vote based on his questioning at oral argument, he’s willing to let the people abrogate these rights by a simple majority vote, blaming it on the constitutional initiative process.

(“Riddle me this, Batman: When is a fundamental right not worth a sou?” “When it’s established by the California Supreme Court.”)

The second point is closely related: The process for amending the constitution in California, and indeed the entire direct democracy idea, is just plain loony. I know I’ll regret saying this when Prop 8 is reversed, as I predict will happen within a few years, at most. But even when that happens, one doesn’t need to restrict oneself to Prop 8 to find myriad reasons for questioning this whole process. I looked at the raft of propositions on last November’s ballot and was struck by their range and complexity. Are the voters really equipped to vote a simple “up or down” on a complex statute? Legislators, fed by committees and countless experts, are barely competent to engage in this high degree of difficulty  exercise. Leave the amateurs out of it, please.

Tomorrow I will have final thoughts on today’s arguments and where the movement goes, in California and elsewhere, from here. And although I  typically have no idea what I’m going to blog about in the future, I can state with assurance that next week’s blogs will be rife with withering analysis and condemnation of (some of the) anti-marriage-equality forces, whose sanctimonious dissembling I can no longer bear. First up will be Maggie Gallagher, whom no reasonably intelligent person should take seriously. (As a start, go to Andrew Sullivan‘s blog where he summarizes some of the reaction to today’s Prop 8 arguments, including hers.)         

First Post

January 6th, 2009 No comments

Here’s the problem with starting a blog: Since most of us who consider doing so are blog readers ourselves, we’re acutely aware that the challenge is daunting. There are more blogs out there than you can shake a cyber-stick at, and reading too many in any sufficiently short period of time leaves the indelible impression that the blogosphere is graphically best represented as a series of (possibly rabid) dogs chasing each other in a dusty, never-ending vortex. (I couldn’t find such an image on the internet, although I admit that I gave up after a few minutes. Will this inexplicable coffee table do?)

doggie coffee  table

Possibly because of the intimidating nature of the challenge, I’ve been generating posts for about a month now but haven’t yet committed any of them to public scrutiny. Well, today’s my birthday so I just decided: Sheesh, just start it, already.

One reason for you to read it is that it will shortly become the most read, most interesting and insightful, and most painfully funny of all known blogs. OK, probably not, but that’s really my goal – and, one would hope, the goal of every blogger. And why not? If I’m going to do this, I need to keep in mind that there are many excellent writers out there. I want to be able to say something in a different, or (from my perspective) a better way.

You’re wondering: Around what topics and themes will this blog cohere? I’m a law professor, so some of the posts will analyze legal topics in ways that I hope are accessible, interesting, and more than occasionally amusing, to everyone. (Some legal blogs do this very well. In this vein, consider my colleague Bobby Lipkin’s excellent work. His love of the format has inspired me.) Within the legal arena, I’m very interested in issues of rights (especially gay rights) and social justice, and the connection between law and public health and policy. (See my linked publications list for examples of my articles on these topics.) A bit further afield, politics, literature, (certain) sports, and investigative journalism are other interests that will either inform or be the subject of some posts.

A few words about the blogger: In addition to being a law professor (at the Widener University School of Law in Wilmington, DE), I teach at the Yale School of Public Health (lecturing on public health law). I’ve published a couple of dozen law review articles and a smaller number of general interest (i.e., magazine and newspaper) pieces, appeared and presented at a number of conferences and symposia, have been on radio (discussing California’s Prop 8 in an NPR show on Dec. 2, 2008) and television, and am one of the featured speakers in a new film about Hurricane Katrina and broader issues of infrastructure and compensating and caring for injured or unhealthy victims of tragedy. (Now available to educational institutions and soon to be scheduled for theatrical release.)

As for my personal life: To the extent it becomes relevant in future posts (and it will, because I’ve already written some of them), I will make due disclosure. I hope you enjoy the blog, and I welcome all serious – not necessarily somber – and civil criticism.

Tomorrow: What is marriage equality for, anyway?