Posts Tagged ‘307’

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.

Justice Moreno: Prop 8’s Lone Dissenter

May 27th, 2009 1 comment

I think that Andrew Sullivan summed up the views of many people (some fair-minded, some not) to yesterday’s prop 8 decision with this statement:

“For my part, I will leave the fine legal analysis to those trained in these matters (and link to them).1 Politically, this seems to me the perfect decision. It would have been dreadful if voters were retroactively told their valid vote was somehow null and void – it would have felt like a bait and switch and provoked a horrible backlash.”

Politically, I agree: The court did the right thing. As a countermajoritarian institution, it risks compromising the credibility and good will on which it depends (or used to, before Bush v. Gore) when it’s seen as subverting popular will. The opinion went as far as it could to affirm the rights of gay couples without actually throwing out Prop 8. The court: valididated the marriages already entered into; reiterated that distinctions based on sexual orientation will continue to be subject to the highest level of scrutiny; affirmed that same-sex couples enjoy all of the rights of marriage (albeit without the label); and stated that constitutional amendments will be narrowly construed to do minimal violence to the court’s role in the protection of minority rights.

But the decision never should have been left to the voters in the first place. Here’s a point that I’ve not seen made:

Before Prop 8 appeared on the ballot, the court had the opportunity to decide that the proposed initiative was an impermissible revision rather than an amendment, and therefore should not have appeared on the November ballot. The court declined to consider the matter. (See pages 21-22 of pdf of case, which you can find here.) Once it made that decision, the court might be seen as having committed itself to upholding the results of Prop 8 — otherwise, they might fairly have been asked why they put everyone through an expensive, wrenching, and divisive “exercise.”

OK, that’s the politics of it. What about the law? In my reaction post yesterday, I wailed — yea, keened — about the majority getting to decide my rights. My plaint elicited this response (from a far-right-of-center gay Texan):

“Well of course people get to vote on your rights. Where do you think your rights come from? Or, to put it another way, how do you know when something is a right? Because you say so?”

Does it all come down to who has the most votes? Well, yes and no. One reason for the constitutional guarantee of equality might be described in this way (as set forth, roughly, by the philosopher John Rawls): We all imagine ourselves behind a ‘veil of ignorance’ — knowing, generally, what society is like and the various sorts of roles and positions (rich/poor; white/of color; gay/straight) that exist within that society but not knowing “who” we will be within that society. So positioned, we’d want to create a government, a society, perhaps even a constitution that would offer fair terms (not necessarily equality of outcome) to everyone. This cardinal principle calls for something like an equal protection clause, to ensure enforcement of the bargain that we struck, as a constitutional matter, in forming our society. Hold onto your hat as I quote Justice Scalia favorably: Equal protection “requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.2

So there’s the answer. Equal protection occupies a deep, even central part of the law and serves as a good part of its justification.

And now I can move to my analysis of Justice Moreno’s dissent in Strauss v. Horton (the Prop 8 case). He spends the first several pages discussing the fundamental promise of equal protection, and concludes by stating that the guarantee of equality “cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect.” Thus, you don’t (or shouldn’t) get to vote on my rights where your vote deprives me (or any other class) of equal protection.

Justice Moreno’s dissent undertakes two discrete tasks; one easy, one less so. The easier job is to eviscerate the majority’s holding that Prop 8  constitutes a constitutionally permissible deprivation of equality. As I did yesterday, Justice Moreno notes the inconsistency between the court’s statements in last year’s In Re Marriage Cases holding and it said in upholding Prop 8. Last year, the distinction in name between marriage (straight couples) and domestic partnerships (gay couples) was unconstitutional because it “impinge[d] upon a same-sex couple’s fundamental interest in having their family relationship accorded the same dignity and respect enjoyed by opposite sex couples[,]” and treated us as “second-class citizens.” And here’s the money quote from In Re Marriage Cases, which the majority now surely wishes it could retract:

“There exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state…has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from and less favorably than, heterosexuals individuals and opposite-sex couples.”

In yesterday’s decision, the court, er, issued “a judicial decision upholding the differential treatment of opposite-sex and same-sex couples….” (How’s that for an exercise of ipsissima verba?)3 It has thereby “validated” the proposition that unequal treatment of gays and lesbians is permissible.

The court, and particularly Justice Werdegar in her concurrence, tried to mitigate the effect of what it was allowing; the majority by declining to consider whether wholesale deprivation of rights could constitute a permissible amendment to the state’s constitution; and Werdegar by simply announcing that only l’il deprivations would be OK. Justice Moreno would admit of no compromise here: equality means, well, equality: “Promising equal treatment that is almost equal is fundamentally different from ensuring truly equal treatment.” (Partial Dissent, page 6.)  And he did this pointedly, because there’s no difference, logically, between the inequality countenanced here and more sweeping deprivations of rights. Moreno lists what the majority had derisively referred to as a “parade of horribles,” pointing out that nothing would prevent a simply majority of Californians (at least under the state’s constitution) from enacting limitations on freedom of religion; interracial marriage; the rights of women to pursue businesses or professions — and there’s no end to it.

Justice Moreno is devastating and, to me at least, unanswerable on the equality issue. But there’s still the matter of the processes for effecting constitutional change in California. As a reminder, the issue is whether the change is sufficiently fundamental to constitute a revision of the constitution, or a less sweeping amendment. (Only an amendment can be approved by a simple majority within prior legislative approval.) The precedent isn’t particularly good for Justice Moreno, but he deftly handles the problem.

First, he foregrounds his discussion of the precedential cases by looking into the history of the initiative process, finding that when it was introduced (in 1911), the goal was to grapple with the issue of government corruption, and the stranglehold of corporate power that had compromised both the judiciary and the legislature. He finds no indication that anyone intended “to prevent courts from performing their traditional constitutional function of protecting persecuted minorities from the majority will.” (p. 10)

As for the precedent, he handles the toughest case — in which the court upheld an initiative that found the death penalty not to be “cruel and unusual” punishment — rather straightforwardly: It wasn’t a majority opinion, having been signed onto by only three of seven justices. Other decisions that affected minorities were about permissible remedies for constitutional problems (school busing, for example), not about the substance of the underlying right. He then focuses on the single best case for his position: Raven v. Deukmejian, 52 Cal.3d 336 (1990), in which the court struck down a voter initiative that would have effectively stripped the court of jurisdiction on matters of state constitutional interpretation in criminal procedure cases. In upholding Prop 8, he notes, the court is allowing itself to be similarly stripped of the power to interpret its own constitutional guarantee of equality.

This case, in short, fundamentally weakens the equal protection clause, and therefore can only be seen as a revision to the state’s constitution.

He’s right.

  1. And thanks for the link, by the way.
  2. Cruzan v. Director of Missouri Department of Health, 497 U.S. 261, 300 (concurring opinion).
  3. OK, I stumbled across this phrase while looking up something else and couldn’t resist using it. It means: “the exact language used by someone quoted.”

Analysis of Prop 8 Decision

May 26th, 2009 No comments

Here’s a good background to today’s decision on Prop 8 (Strauss v. Horton)  if you need to get up to speed before reading my layperson’s analysis of the court’s holding today.

First, the results: The court, by a 6-1 vote, has ruled that this ballot initiative was a valid exercise of the process to amend the state’s constitution. On the other hand, a unanimous court briskly disposed of the contention that Prop 8 should be read retroactively to strip those 18,000 or so already-married couples of their status.

The plaintiffs had argued that Prop 8 represented an unconstitutional revision of the constitution; unlike amendments, revisions require the legislature to first approve the measure — by a 2/3 vote — before the voters get to decide the question. So, what is the difference between an amendment and a revision?And what is the proper allocation (“separation,” in the argot) of powers between the branches of government? These were the principal points of contention on the substance of Prop 8.

The majority went on for almost 140 pages. In brief, their points — which I’ll next explore in somewhat greater depth — are these: (1) The California Constitution is easy to amend, and that’s not something we can change; (2) The deprivation of rights isn’t that big a deal, really, because all that’s been removed by Prop 8 is the word “marriage” rather than the rights that go with it; (3) Based on precedent and constitutional history, Prop 8 is a permissible amendment to the state’s constitution — not a more substantial revision, which would require prior submission to the legislature (and a 2/3 approval) before going to the voters; (4) There’s no separation of powers problem here: Everyone’s doing their constitutional job; and (5) The Attorney General’s “novel” argument that certain rights are “inalienable” and therefore immune from the vagaries of majority rule, has no traction. Each point will be discussed under a separate heading.

Ease of Amending the California Constitution

The court began by situating the reader within the unusually amendable California Constitution. Comparing it to other Constitutions — especially with regard to marriage equality and the difficulty of withdrawing that right — the court characterized the petitioners’ claim thus: “[I]t is just too easy to amend the California Constitution through the initiative process.” (Pdf version of the case at page 12.) But it’s not our job to curtail the process, but “to uphold it,” said the court. In a sense, of course, this is an unfair characterization of the plea, which held that the process was not, in fact, as easy as the Prop 8 proponents were stating. Yet the court’s statement does capture some of the frustration many feel at the entire ballot initiative process in California.

Deemphasizing the Constitutional Importance of the “Marriage” Designation

The next point is worth careful parsing (get ready for the torrent of law review articles surely to follow). Was it the right to marry that was fundamental and worthy of protection in the court’s decision last year? We did call it that then, the court conceded, but that’s just a shorthand; now, it’s not the constitutional right to marry but “the constitutional right to establish, with the person of one’s choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one’s choice.)” (p. 35) I guess that opposite-sex couples can still use the shorthand, though. (Some advice:  Same-sex couples, carry the preceding description of your constitutional rights with you at all times, along with your Organ Donor Card and, if applicable, your medical alert bracelet.)

By now deemphasizing the word “marriage”, the court is warring with its own decision in last year’s In Re Marriage Cases, in which the majority relentlessly hammered home the point that the word “marriage” is vital. The court couldn’t ignore that it was doing so, but note this important change from last year’s decision: “We by no means diminish or minimize the significance that the official designation of ‘marriage’ holds for both the proponents and opponents of Proposition 8.” (p. 7; emphasis added) Last year, the court was concerned about those deprived of marriage; now, they are equally solicitous of the views of those opposing equality.

It must be noted, though, that the court in several places reiterated that distinctions based on sexual orientation will continue to be “suspect,” meaning that the highest level of justification will be needed to support them. This principle was one of the signal achievements of In Re Marriage Cases, as it made California the first state to grant the highest level of scrutiny to gays and lesbians. Thus, any statute that discriminates on this basis will likely fall; the constitutional issue is different, though, because Prop 8 carves out an exception to this principle for one issue. (More on this later.)

Amendment or Revision?

This is the heavy sledding, a long discourse on the history of California’s Constitution and on the elusive distinction between “amendments” and “revisions.” I’ll keep this as brief as accuracy will allow. Revisions are substantial changes to the constitution, while amendments are less so. (How’s that for clarity?) Whether a proposed change is one or the other is for the court to decide, not the drafters of the provision. A 1978 case, Amador Valley Joint Union High School District v State Board of Equalization, 22 Cal.3d 208 explained that a change will be considered a revision if it’s quantitatively extensive (like one proposed alteration, struck down by the court in 1948, that was less-than-lovingly referred to as the “ham and eggs” initiative for its muliplicity of subjects, sections, and articles) or qualitatively dramatic. As the court said in Amador, “even a relatively simple enactment may accomplish such far reaching changes in the nature our basic governmental plan as to amount to a revision….”  (p. 223)

Now we’re at the heart of the petitioners’ case: Prop 8 was a revision because it allows, at least in principle, the wholesale deprivation of fundamental rights — and allows this to happen to a class of people that the court itself has held are most in need of protection. Even though “just” one right is at stake here, if the court allows its ability to safeguard the minority’s rights to be overborne so easily, then there’s no limit to it. The voters could remove all legal protections from gays and lesbians — or for any other group, for that matter — as long as they did it in a piecemeal fashion. Strangely, the court declines to address this argument head-on. Instead, it does two things.

First, it exhaustively trudges through a host of cases testing the amendment/revision line, finding that almost any change has been upheld as an appropriate amendment (with the significant exception of a case that tried to deprive the court of the power to interpret its own state constitution in matters of criminal procedure, purporting to require the court to go no further than the U.S. Constitution requires).  But as even Ken Starr conceded at oral argument while defending Prop 8, none of these cases involves depriving a suspect class of fundamental rights. So what about that?

This brings us to the second point. The court simply sidestepped the broader concern about the potential for a step-by-step deprivation of rights:

“Because Proposition 8 has only this limited effect on the fundamental rights of privacy and due process and the guarantee of equal protection…., there is no need for us to consider whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public and private discrimination in all areas without legal recourse…would constitute a constitutional revision….” (P. 93, italcs in original)

But doesn’t Prop 8 itself create this possibility of a broader exclusion? I don’t see how it doesn’t. At least Justice Werdegar, in her concurrence, stated that a broader legal exclusion would amount to a revision, and took the majority to task for leaving open the opposite possibility. But her concurrence is itself unprincipled, because she offers no metric by which to measure whether a given act of constitutional discrimination would be “impermissible.”

Separation of Powers and Inalienable Rights

These two arguments got the quick brush-off. There’s no separation of powers argument, the court concluded, because we retain the right to interpret the state’s constitution; including, they noted (without apparent irony) the “new” one with Prop 8! This isn’t like the criminal procedure case we’ve discussed, because that was an attempt to strip the court of power to do what we do. But that power itself has constitutional limitations, and we remain able to enforce equal protection for gays and lesbians in every other area (at least until the electorate tells us not to).

The inalienable rights argument was intriguing; the AG had argued that the most fundamental guarantees of the state’s constitution transcend that document; the promise of “liberty” so eloquently defended by the U.S. Supreme Court in Lawrence v. Texas is at the very core of these rights. And these can’t be restricted without a compelling reason, not given here. (As you’ve likely guessed, this argument wasn’t dependent on the distinction between amendment and revision.)  The court found that this argument disregarded a line of cases that involved deprivations of liberty, and relied on “old school” notions of natural law to elevate “liberty” a higher order. The court had little patience for this effort.

Retroactivity Issue 

On the procedural issue of whether Prop 8 should apply retroactively to wipe out the 18,000 marriages that had already taken place, the court was clear and dismissive. The language of the amendment made no mention of retroactivity, and that’s required in order to overcome the presumption that laws only apply prospectively. Extrinsic sources (just in case they were relevant) didn’t help this argument, either: Prop 8 proponents stated that the amendment wouldn’t take away any rights, and the explanatory ballot materials were, at best, ambiguous. Not good enough.


Standing firm was Justice Moreno. I will post on his dissent separately. For now, I offer these words of inspiration to close this long post. They’re from the Iowa Supreme Court’s decision in Varnum v. Brien, and were quoted by Justice Moreno in beginning his opinion:

“The absolute equality of all persons before the law [is] the very foundation principle of our government.”

Reaction to Prop 8 Decision (Analysis to Follow)

May 26th, 2009 No comments

The California Supreme Court just dropped the bomb whose ticking has been growing louder over the past few months. By a 6-1 decision (with Justice Moreno in lonely dissent), the court decided that Prop 8, the ballot initiative that revoked the right of same-sex couples to marry, was a valid amendment to the state’s constitution.  The decision was widely (if not universally) expected, as was the court’s other (unanimous) holding, finding that 18,000 or so marriages that took place last year before remain valid. I’ll soon have an analysis of the ruling especially intended to be useful to non-lawyers.

While I’m still trying to get a copy of the decision, I can’t help reacting.

I had expected to feel maybe a second-level order of disappointment. After all, the biggest blow was the decision of California voters to remove, by constitutional amendment, a fundamental right that the court had so eloquently and persuasively articulated. And the court would be facing enormous pressure to support “the will of the people,” a point that was made, repeatedly, during oral argument in March.

Yet I’m overcome by a profound sense of grief. The courts are supposed to be on the side of justice and protection of the rights of minorities. This time, the California Supreme Court — admittedly with precedential justification — blinked. And I’m reminded again that people get to vote on my rights. I don’t think I’ll ever get used to that, or be able to regard these kinds of setbacks as “second-level disappointments.” Well, back to the political process — like it, or not.

Update: I’ve now slogged through all 150 pages of the majority and the two concurring opinions. I’ll post my “legal analysis for the layperson” shortly.

Categories: Marriage Equality, Proposition 8 Tags: , ,

Prop 8 Decision Set for Tuesday, May 26: One More Thought

May 22nd, 2009 No comments

Well, this time it’s really happening: Next Tuesday, we’ll return from the holiday weekend to face the (probably funereal) music, as the California Supreme Court has announced the filing of its opinion in the Proposition 8 case for that date (see embedded link).

Just a couple of days ago, speculation that the opinion was about to issue caused me to issue this post. There, I suggested questions that the court would likely need to answer in deciding that the ballot initiative process had been properly used in passing Prop 8, which  purports to amend the state’s constitution to deprive same-sex couples of a right — marriage — that the court had just stated was “fundamental.”

To those thoughts, let me just add a quick supplement here. It will be interesting to see how the court handles the question of domestic partnership — the marriage equivalent without the name or the social approbation —  that remains in effect in California after Prop 8. In their decision in In Re Marriage Cases, the justices weren’t gulled by the argument that domestic partnership was “just as good” as marriage. Although there are many problems with the status, the court leveled the most telling criticism at it: If it’s just the same thing, why  go to the trouble to create it? The whole idea is to fence same-sex couples out, thereby purposefully creating a class of second-class citizens. In one sense (not a practical one), this is even worse than a complete denial of marriage benefits to same-sex couples, which at least have been supported with legal and social arguments (however weak).

Yet during the oral argument in March (I live-blogged it here), at least one Justice (Kennard) seemed to suggest that Prop 8 might be less objectionable because it doesn’t remove the rights of marriage, “just” the title. Will the court stand on that point? If so, what was all the shouting about last year?

Look for a summary here shortly after the opinion issues.

The Conversation that Wasn’t?

May 20th, 2009 No comments

According to the website Towleroad, the Prop 8 decision was to have issued tomorrow, but San Francisco Mayor Gavin Newsom reached out to the California Supreme Court and asked for a delay. The reason, supposedly, was the mayor’s concern about releasing the opinion on the 30th Anniversary of the White Night Riots in San Francisco; the city had gone ballistic in response to the decision handed down that day finding Harvey Milk’s killer, Dan White, guilty of only manslaughter. This brief clip from that night will give you a sense of the depth of the anger, unlikely to be matched even in the unlikely event that Adam Lambert doesn’t become America’s Idol in the next few minutes:

Oddly, the same story from Towleroad contains a press release from the Mayor’s office denying the claim, but Towleroad is standing by it. In any event, no release tomorrow.

Categories: Proposition 8 Tags: , , , ,

Prop 8 Decision to Come Down Tomorrow? Here’s What to Look For.

May 20th, 2009 No comments

With a limited number of days remaining in which the California Supreme Court can hand down its monumental decision regarding the validity of Prop 8, the first murmuring has just been heard that tomorrow may be D-Day. (The story notes that police barricades are being moved into place in San Francisco, likely in anticipation of street actions there — protests or celebrations.)

As I live-blogged the argument, it seemed quickly evident that the court was going to uphold Prop 8 as a permissible amendment to the state’s constitution, but let stand the many thousands of marriages that had occurred during the several months of 2008 when same-sex marriages were legal. I still believe that’s what going to happen, but with all that’s been going on since then, there is some reason to question that outcome. Here are a few questions that the court may answer whenever it does issue its ruling:

(1)  Things have changed since the oral argument, and at a speed no one could have predicted. Iowa, Vermont and Maine — soon to be followed by New Hampshire, it seems — now have marriage equality. Will the court acknowledge these developments, and, if so, what impact will they have on the justices? My guess is that the court will express sympathy or empathy for the gay community (something no U.S. Supreme Court Justice is supposed to have, according to this fool) and celebrate these developments, but place its trust in the people to eventually extend the promise of equality — after all, the New England states mentioned above have achieved marriage equality legislatively, not by court order. This approach may make the court (and others?) feel better about what it’s doing.

(2) Whither willy-nilly? During the argument, Justice Kennard kept asking counsel opposing Prop 8 whether the court could “willy-nilly” disregard the will of the people. (In fact, she used the expression so often I was left wondering whether she’d just learned it.) I took her to mean that calling Prop 8 an impermissible “revision” to the state constitution rather than an allowable “amendment” would be an unprincipled, haphazard thing to do. But even Ken Starr, arguing for Prop 8, conceded that the case raised the unique issue of depriving a suspect class of a right that the court had declared fundamental. Thus, overturning it wouldn’t be “haphazard.” One could argue that Prop 8 really does constitute a fundamental change to the state’s constitution by restricting the court’s ability to interpret it. This argument blends almost seamlessly into the related point that Prop 8 purports to disrupt the established separation of powers — courts are the interpreters of constitutional guarantees. (The argument is summarized, and the brief linked, here. Scroll down to April 28.)

(3) What will the court say about taking rights from a class that, just last year, it  had declared to be entitled to the highest degree of protection? This question is obviously closely tied to the last one. The court’s decision to treat sexual orientation as a “suspect class” that triggers the highest level of judicial scrutiny (suspicion, really) was based on its finding that the gay community had historically been subject to discrimination, that laws treating the community differently bore no relation to the ability to contribute to society, and that gays were historically powerless.  Do subsequent developments make those observations less true, and reduce the need for heightened protection? If not, then the class is still suspect, and the rights are still fundamental. Can a simple majority vote change that?

(4) Another related question is whether any of the justices who opposed marriage equality last year might change their vote. This seems unlikely, but a justice who is especially respectful of stare decisis —  which says, in layperson’s  terms, that the court should respect its own precedents, overruling them only under exceptional circumstances — might look at matters this way: “I didn’t think that sexual orientation called for heightened scrutiny, but we (over my dissent) held that it did. That’s now the law and I’m bound to respect it. And if sexual orientation is a suspect class, and if same-sex couples have a constitutional right to marry, which we also held (again, over my dead… — I mean, over my dissent), then that right can’t be taken away so easily, if at all.”

Don’t expect this to happen, though. Stare decisis is like a raincoat that justices don and doff according to the prevailing weather.

(5) How ugly is it going to get?

(I’ll be back with a lay summary of the opinion shortly after it’s issued.)

Update: It’s now been confirmed that the opinion will not issue tomorrow. The court must issue the opinion within the next two weeks, though. I will supplement this post shortly before the decision issues, and then again to summarize and reflect on the opinion.  

Comments Welcome

March 30th, 2009 1 comment

It turns out (to my surprise)  that no one was able to comment on posts until just recently. Now  you can do so without logging in.1  The comment feature just “went live” and already there are several provocative comments; feel free to join in (or not).

This may also be a good time to pause briefly after two-plus months of high-intensity blogging to thank you for reading and for telling people about <>.  Readership has been steadily growing, week by week. I greatly enjoy writing these entries and am glad for the company.

For those who are very recently reading here, and who haven’t the time or inclination to go back through the first 50+ entries, the following are the ones I most enjoyed writing, for one reason or another (in reverse chronological order):

3/22: “Floating Like a (Meta)Butterfly” (Jon Stewart v his detractors)

3/08: “The ‘M’ Words” (facetiously proposing a new word for same-sex marriages)

3-04-3/06: Several posts before, during (live blog) and after Prop 8 oral arguments.

2/17: “The Third Chimpanzee, The Winter’s Tale, and the Imperatives of Biology” (as complicated as it sounds)

1/27: “Forms Over Substance” (on my experience dealing with the Social Security Office and trying to get a change of SSN for our two adoptive daughters)

Again, thanks!

  1. This means, though, that I get lots of “spam” comments. For the last time: No, I don’t want to buy “Propecia.”

A Public De-Friending

March 23rd, 2009 1 comment

As someone new to Facebook and not entirely convinced by it (although there’s something strangely compelling about it), I only recently learned about the phenomenon of “de-friending.” It occurred to me that it would take a great deal for me to de-friend someone. I mean, I wouldn’t do it just because I realized that I barely knew the person OR because the person wrote on my wall every 17 seconds OR EVEN that the person had — and shared – political views that I regard as anathema. So what would constitute grounds for de-friending?

Last night, a link came to WordinEdgewise from a woman who had rather publicly defriended a guy for transgressions that she has very graciously allowed me to repeat here. I don’t know any details beyond what this woman (Elizabeth Eccleston) discusses in her open letter to this guy. But I’m presenting the letter in its entirety to give you the full sense of why she did what she did:

“Dear Jonathon Stucker,
Congratulations on your upcoming nuptials! I noticed it through facebook – enough of my friends had joined the group that you created to announce your engagement (how modern!) that it showed up on the sidebar of my homepage. Really, I couldn’t be happier for you. I have to admit, though – I discovered your announcement about a week or so ago, and I’m only bringing it up now because I’ve been reading [the WordinEdgewise post about the Prop 8 oral arguments], and it reminded me of you.

“You know, I haven’t thought about you too much since I felt the need to defriend you after you repeatedly posted your notes supporting Proposition 8. Of course, merely voicing your differing opinion wouldn’t have been enough for me to remove you from an online networking site; it was your posts with offensive analogies to fishing, propaganda regarding the dangers gay marriage posed on your (and everyone else’s, no matter what they were) religious beliefs, and, best of all, it was the fact that you deleted any comment that pointed out a flaw in your argument, or even merely stated a differing opinion (but, of course, you kept all of the comments of blind support). Even after all this, however, it was the fact that you began to re-post your notes – not even bothering to write new ones! – just so they’d stay on every one’s facebook front page that led me to defriending you, my one-time middle school friend.

“But, you! Congratulations, really. I love weddings, and I love marriages. When two people decide to commit to loving each other and being there for each other for the rest of their lives, it is a truly beautiful thing. I’m looking forward to eventually getting married, when I find the right person. And, just like you, I won’t have any trouble doing so. Just like you, I’ll be able to make the decision with my fiance, announce it to my family and friends, and have everybody be happy for us. Even though I won’t be getting married in a church, as I’m sure you will, we’ll both go down to the County Clerk’s office beforehand, and we’ll get a license to marry. We’ll both complete that step, even though we have very different religious beliefs. See how that works? But my best friends won’t be able to do that, if you, and people like you, get your way. It’s amazing how your religious beliefs, of which you are so understandably protective, dictated that my friends won’t be able to get married, even though none of us share your religion. Weird, huh?

“And, wow. As you stated in your facebook group, you’ve only been dating your fiancee for a month before you proposed. That’s really quick! But, hey – when you know, you know, right? This summer, some family friends of mine got married. They had been together for over twenty years. Despite the fact that they have two children together, they had to wait that long because our state wouldn’t legally recognize their commitment to each other. They are really beautiful people, too – one of them works with child protective services, making sure children are safe and properly cared for. That’s how they adopted their children, too – both girls had severe childhood trauma and struggled with bipolar disorder at a young age. Through my friends’ love and commitment to their children and to each other, both girls are now healthy, stable and going through normal teenage pangs. And now the California Supreme Court is arguing whether or not their marriage should remain valid. One month, huh? Terrific. Well done. I’m so happy that you’ll have no roadblocks or third parties arguing against the validity of your love and readiness for a lifelong commitment to one another, because, really, nobody should have to go through that.

“I hope you enjoy your privilege, Jon. I hope your marriage is long-lasting and fulfilling. I hope you appreciate the benefits that your legally-recognized opposite-sex marriage gives you, including status as next-of-kin for hospital visits and medical decisions if you or your wife is too ill to be competent; automatic inheritance in the absence of a will; bereavement or sick leave to care for your wife or child; and judicial protections and evidentiary immunity, among many others. I hope you never have to use any of those benefits, but I hope you appreciate your legal backing if anything ever happens to you or your family. I hope the fact that you, as you claimed, were afraid of a florist getting sued for refusing to take on gay clients for their wedding because it so offended his or her religious beliefs, makes it worth taking away those benefits from thousands and thousands of loving couples, who want nothing more than to be able to do what you are lucky enough to be doing right now: marry the one that they love.

“Congratulations on your upcoming marriage, Jon. I hope you feel more protected than you would have had my best friends had the same rights that you do, had they been considered equal citizens in the eyes of the law. I hope it is worth it.

“And I hope your marriage isn’t so delicate that it will be damaged once progress is no longer halted, when we DO win, and we have equal rights for all. Kisses!!
Love, your wacky, liberal, feminist, homo-loving friend from middle school,
Elizabeth Eccleston”



OK, this guy seems like a bit of a straw man. But his views (if not his objectionable conduct on Facebook) are fairly representative.

Thanks, Elizabeth! More straight allies like this, please!

Which is Worse?

March 18th, 2009 No comments

Way, way back in the supposed heyday of SNL (a “heyday” that  Jane Curtin now says was terrible), they did a great take on the smug morals enforcer of the day, Anita Bryant. Bryant, the former Miss America who led numerous crusades to roll back non-discrimination laws protecting gays and lesbians  (mostly successfully), was retrieved from obscurity recently in “Milk.” (Harvey Milk led the fight to defeat a Bryant-backed California ballot initiative that would have forbade “homsexuals” from teaching in the public  schools.) Her reappearance reminded me of this SNL exchange from the mid-to-late 70’s (not  verbatim):

Bryant (played by Curtin): “Would  you like some orange juice?”

Man: “Orange juice? No thanks, it’s not breakfast time!”

Bryant [reddening]: “It isn’t just for breakfast any more, dammit! I don’t know which I hate more, gays or people who think orange juice is just for breakfast!!”

Similarly, I don’t know which group gets me angrier: People who poured thousands of hours of time and money into the passage of Prop 8 because they (misguidedly) believed it was necessary to save civilization as we know it, or  those who voted for it even though they really didn’t care too much either way, and who also acknowledged that marrige equality was likely to come  to pass in the near future. In a series of interviews with supporters (no longer available on the web), I heard and saw several voters literally shrug when asked why they’d  voted for Prop 8. The comments were along these lines: I’m not comfortable with gay marriages. But it’s not the most important issue to me and it’s probably going to happen soon, anyway.

Excuse me?

If that’s really how people feel, they obviously haven’t stopped to consider the real and devastating effect that the denial of equality is having on millions of people every day. If this isn’t a big issue for you, please take a moment to think about the balance your vote strikes between a vague sense of “nah, I don’t think so” and the harm you’re contributing to.

At least those who spent their time and money in serious efforts to pass Prop 8 passionately believe in what they’re doing. And if all of them had the thoughtfulness of, say, a David Blankenhorn, I know which group I’d be angrier at — the casual voters. Of course, many of the “Yes on 8”  crowd complicate the equation with their sustained assault on the LGBT community.

So, which is worse? Does it matter?  Perhaps what counts is that the casual voters would seem especially susceptible to having their minds changed. In California and elsewhere, it’s vital to keep plugging away. Here’s a link to a National Equality Rally to be held on the first Sunday in May right here in my hometown of  Philadelphia (aptly, at Independence Hall and the Liberty Bell). The President of my university recently expressed his “outrage” at what’s been going on regarding the marriage issue, and we’ll need large numbers of the many millions of straight supporters like him to, er, come out in favor of this cause and for equality and justice more broadly. The Equality Rally is a good place to start.

That’s the main course. Time for dessert! I, for one, love pie: