Equality On Trial

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• 1. scott  |  January 17, 2010 at 2:05 am

  "At that time 73% of the population opposed “miscegenation.” How long would it have taken to change popular opinion, for the minority to democratically win their constitutional rights?"

  A partial answer:

  "In 1968, only 17 percent of whites polled across the nation approved of interracial marriage in contrast to 48 percent of African Americans. A Gallup poll in 1991 found that 70 percent of blacks and 44 percent of whites approved of intermarriage".

  In other words, generations.

  (Quote from "Love's Resolution: interracial marriage" by Maria P. P. Root)

• 2. Bob  |  January 17, 2010 at 5:53 am

  Actually, according to the Angus Reid poll their calling it even
  http://www.angus-reid.com/polls/view/34691/americ…

  BTW, it took 25 years (1991) for interracial marriage to cross the 50% mark.

• 3. Kate  |  January 17, 2010 at 7:30 am

  It took 25 years – and that's with the advantage of it having been declared legal. WIthout that advantage it almost certainly would have taken significantly longer.

• 4. Clifton Joullian  |  January 17, 2010 at 2:14 am

  Very good story. I am trying to see a silver lining on this dark cloud. If we lose at The Supreme Court, I think we will still win as it will be, as your story stated, a "public relations night mare". Remember what happened after Bowers Versus Hardwick? Many Americans were outraged with that decision. I even remember a movie where the Bowers Versus Hardwick decision was ridiculed (The Pelican Brief? Can't remember the exact movie.) Bowers Versus Hardwick also showed how flawed our justice system can be: liberty & justice for some, but not all. Afterwards, many states slowly struck their sodomy laws down until Lawrence Versus Texas ultimately struck them all down. History has a funny way of repeating itself. I see similar fallout if The Supreme Court rules against us. Time and history are on our side. Remember too, Prop 8 barely passed. If it had not been for the lies and exaggerations, it would not have passed at all.

  On a final note, I am just wondering if their has ever been a time in history when a Supreme Court judge has been recused from a trial. It is clearly documented that Scalia in particular has a bias against LGBT people and should be excluded from our trial. I do not see how he can be fair or balanced given his stance on the "gay agenda". I wonder who oversees The Supreme Court and has the authority to make such a decision?

• 5. Lou  |  January 17, 2010 at 2:52 am

  Judges themselves are the primary arbitrators re recusal. In lower courts, a superior judge and/or panel may force a judge to recuse if there is a conflict of interest or the substantial appearance of a conflict.

  Supreme Court justices have self recused from cases in the past where conflict existed or there was the substantial appearance of a conflict. Rare, but it does happen.

  As far as I can find there is no authority available to force a justice to recuse; though there may be something in the internal process/procedures of SCOTUS.

  I doubt Justice Scalia would recuse, even under heavy prssure, popular or political.

  BTW, obviously I'm not an attorney.

• 6. Marlene Bomer  |  January 17, 2010 at 8:00 pm

  Sotomayor this year recused herself from a copyright case this year because the lower court she was a justice for had previously heard the case.

  I highly doubt ol' "Spewlia" won't recuse himself because in my view he IS an activist judge — he uses his Catholicism as the basis for his rulings, which in my mind make him in violation of the Establishment Clause, thus he could be impeached.

• 7. David  |  January 17, 2010 at 9:50 pm

  Um, Marlene, you need to brush up on basic law. A Supreme Court Associate Justice cannot be impeached. The Constitution doesn't even address that. The only official that can be impeached under the provisions of the Constitution is the President.
  Secondly, Associate Justice Scalia appears to make his decisions based on his Catholic faith, however, he is not in violation of the Constitutions Establishment clause; because (again, even a high school student who has had basic government classes could attest to this) the Establishment Clause refers to Congress and prohibits them from proposing laws that would sanction or favor one religion over all others.

  There's is a quote attributed both to Mark Twain and Abraham Lincoln, however, I feel it's appropriate here:

  "It is better to remain silent and be thought of as a fool than to *open one's mouth and remove all doubt."

  *you can also substitute "post on a public forum."

• 8. Prup (aka Jim Benton  |  January 18, 2010 at 1:45 am

  Actually, Associate Justices can be impeached — see Samuel Chase, though his impechment failed. However, Marlene is, in fact being a bit of a fool. Scalia is a Catholic, but so is Kennedy, who wrote Lawrence, so is Sotomator, and so was William Brennan, perhaps the greatest judge of the second half of the last Century. You are engaging in precisely the sort of stereotyping we object to from our enemies. (My feeling is, though without evidence, that both Sotomayor and Brennan were 'better' Catholics than is Scalia or Thomas.)

  In fact, there were at least two lesbians on Obama's 'short list' to replace Souter. By your logic, you would have had to go along with Prop 8 supporters in demanding they recuse themselves. had they been named. Would you have?

  This was precisely the point of Sotomayor's 'wise Latina' speech that was so true and that she was so unjustly criticized for. Judges are not 'law machines' but do — and should — use their life experiences in informing their judgments. Scalia is, no doubt, a truly awful judge, the worst since McReynolds, but not at all because he belongs to a Church I personally left almost 50 years ago.

• 9. James Sweet  |  January 18, 2010 at 2:12 am

  Well said, Prup. I'll criticize Scalia all day, and I'll criticize Catholicism all day… but the fact that he is a Catholic and that his worldview is informed by this is not in and of itself enough to make him unfit to act as a judge.

  Of course, now I'm remembering when Scalia famously pronounced that "the cross is the most common symbol of…the resting place of the dead" independent of religion. DERP!

• 10. DonM  |  January 17, 2010 at 3:51 am

  Did Prop8 really pass? http://www.wasprop8straight.org/

  Fairly technical in places but worth the time.

• 11. DebbieC  |  January 17, 2010 at 4:19 am

  Could someone educate me because I have no useful legal knowledge.

  Say we win this (I believe we will) and for some reason H8 chooses not to appeal. Then what? Do we have any grounds to attempt to bring it to the Supreme Court? Or would we have to be satisfied with the win in California?

  What will winning this accomplish at this point, and then further down the road?

• 12. Aaron  |  January 17, 2010 at 4:48 am

  good question…i was wondering that too.

• 13. Brian Leubitz  |  January 17, 2010 at 4:49 am

  There is really no way that the Prop 8 team will not appeal a reversal of Prop 8. They know that it's not going to get any better than it is now for them in terms of the jurists themselves. And they've already said that they intend to appeal a loss.

  But, from a technical legal perspective, if they don't appeal, Prop 8 would be invalidated, and marriage equality would be the law of the state of California. I can't imagine that anybody from our side would appeal that decision if they didn't.

• 14. DebbieC  |  January 17, 2010 at 4:59 am

  So if H8 accepted the loss (not likely, but whatif), then we would be stuck. We'd have marriage in California, but no grounds to bring it to the Supreme Court? Right? Wrong? Totally confused?

• 15. Andrea  |  January 17, 2010 at 6:46 am

  And if Walker splits the difference, letting 8 stand but declaring that CA cannot recognize marriage at all, only DPs, due to the 14th equal-protection issue, what then?

  The anti-8 side technically 'lost,' but the plaintiffs directly testified that the DP-for-all outcome would be acceptable to them. No grounds for appeal there, and why bother? Because…

  The pro-8 side technically 'won,' but they lost marriage itself (the irony is delicious). They have stipulated that they consider DPs equal to marriage, it's a cornerstone of their defense, so there's no deprivation-based appeal without walking into a self-created perjury trap. Further, they have an available remedy at the state level – repeal their own initiative at the ballot, the same way they put it there!

• 16. Brian Leubitz  |  January 17, 2010 at 11:01 am

  I understand the desire to do some thought experiments, but there is absolutely no way that the Prop 8 people will not appeal a loss.

  While decisions in district courts are not binding decisions on other district courts, they are certainly persuasive. If you were prop 8's attorneys, you would definitely, definitely not allow such a precedent to stand. Other judges in other jurisdictions would find it very compelling and difficult to ignore.

  If Judge Walker split the difference and ended civil marriage in California, we could appeal. In that circumstance, I'm guessing all parties would appeal.

• 17. James Sweet  |  January 18, 2010 at 12:41 am

  Right, just to echo others… the chances of this not being appealed — regardless of out come — are essentially nil. It just ain't gonna happen.

  But yes, if the defendants decided to throw in the towel, then the case would not reach SCOTUS. Actually, the same could be said for the plaintiffs. And I think there is an argument that, once this case is ready to go to SCOTUS, if the makeup of the bench hasn't changed then maybe the plaintiffs should throw in the towel, preferring to wait for more sympathetic judges rather than establish a precedent we don't want to set.

  That won't happen either, and I'm not necessarily endorsing it. But it could be a valid strategy.

• 18. JimB  |  January 18, 2010 at 11:44 am

  @James Sweet
  re: "if the makeup of the bench hasn’t changed then maybe the plaintiffs should throw in the towel, preferring to wait for more sympathetic judges rather than establish a precedent we don’t want to set."

  I'm wondering what kind of national reaction there will be if it goes to SCOTUS and we lose it. that will basically be the statement for the whole nation:

  "Our country's foundations of law find that LGBT's have less value and do not have the same rights as heterosexuals"

  Would anyone move? would it be a cause for civil disobedience? Would we have another leg to stand on or basically that is that. End of story?

  I love this thread.
  I'm learning a lot by reading the posts. It's been very educational and interesting!

  Thanks to everyone for the insights, but…what would you do?

• 19. Alan E.  |  January 17, 2010 at 5:56 am

  IfUf for some reason they don't appeal, other states could bring a case forward citing this case as precedence.

• 20. David  |  January 17, 2010 at 10:19 pm

  If this case is won, and the defendant, (in this case, Governor Schwaranegger acting on behalf of the State of California) decides not to appeal, then most likely this will remain in the State of California and invalidate Proposition 8. However, if ultimately this case is summarily rejected (the plaintiffs lose); then they have the option of appealing to the next level, which would be the Ninth Circuit Court of Appeals. Ultimately, I think this is going ot have to go to the Supreme Court of the United States. I think the liklihood of a win, however, is pretty high. The Lead attorney for the Plaintiffs is Theodor Olson, you may recall, he was the lead attorney in Bush v. Gore which allowed Governor Bush to ascend to the Presidency in 2000.

  A lot of excitement, a lot of tension in this case. We'll see where it goes.

• 21. Kevin  |  January 18, 2010 at 10:08 am

  You cannot appeal if you win.

• 22. Warner  |  January 17, 2010 at 5:01 am

  If I understand this correctly, if we win, and H8 refuses to appeal because they know it is a nightmere, it would still set precedence.

  a judge declaring laws like prop 8 a violation of federal constitutional laws would set up precedence to support further lawsuits.

• 23. Nicholas Kapur  |  January 17, 2010 at 5:26 am

  Yeah, this is the reason I'm pretty sure they'll have to either challenge it or accept total defeat. Regardless of the reasoning, a decision in our favor here is still a big precedent in a federal court. If they just let it stand, then it'll make every other such lawsuit in the United States much, much stronger — which will in turn provide more precedents.

  Besides, despite the risk of losing at the national level and ending this all within the year, this is as good a time as ever for them to take it to the Supreme Court. It's still pretty conservative, after all.

• 24. Warner  |  January 17, 2010 at 5:42 am

  I am hopeful by the move of the republican party starting to splinter itself into far right and libritarian factions.

  This case is being argued by a conservative libritarian lawyer for gay marriage to a conservative libritarian judge. That gives me hope.

  At the same thing, as the article points out, more republicans and conservatives with emphasis on civil liberties *a voice rarely hear in the republican party* are stepping out in support of gaymarriage.

  I believe in part we can thank the lawyer who is arguing the conservative case for gay marriage is a big part. he is working to break down that stigma as much as anything, and it seems to be working.

• 25. Prup (aka Jim Benton  |  January 17, 2010 at 8:01 am

  Sadly, Warner, the type of Republican you are looking at is losing all influence in the current Republican Party, which is beimg led by the tea-baggers and theocrats. Even John McCain is being attacked as a RINO, and Bush and Cheney are both being condemned for 'blowing the election' by not being conservative enough.

  A Ted Olson, a Judge Warner is a joke to a party whose base is activated by Rush, Beck, and, even more dangerously, by Janet Folger Porter (of Faith2Action) and Lou Engel (of The Call and IHOP — the International House of Prayer, not the pancake place.) I am hoping to do a series of pieces on them — if I do, my name will suddenly appear with a 'click-through' but they, and not the classic Republicans are the center of the party, and the 'libertarian' end are represented by the Texas Doctor and his son, who seems likely to be the new Senator from Kentucky.

• 26. James Sweet  |  January 18, 2010 at 2:15 am

  I'd much rather see the Republican party fade away, and see the Democratic party split. The conservative arm of the Democratic party has the makings of a reasonable alternative party — fiscally conservative, wary of overexuberant social progressiveness, etc. Don't get me wrong, I'd still vote for the liberal end! But a legitimate conservative counter-balance is an important facet of a functional two-party system, and right now the GOP is failing to hold up their end of the bargain in that regard.

• 27. Michael Herman  |  January 17, 2010 at 6:18 am

  This gives me hope that the "Radical Right" is just a phase and they'll grow out of it.

• 28. Prup (aka Jim Benton  |  January 17, 2010 at 7:52 am

  This post and the comments seem to require several posts, and my apology that some of them may appear overly pesimistic. But the first one has to do with the Scopes trial. Because of "Inherit the Wind" and other stories, people tend to believe that the rsult of the trial, while a nominal defeat for Scopes, was a gigantic victory for the teaching of evolution.

  It was not. Laws remained on the books in other states — and no teachers could be found to test them. Only one biology textbook published in the 20s and 30s even mentioned evolution in the index, and that was carefully surrounded by Biblical quotes. True, the more secular intelligentsia had a great amount of fun laughing at Bryan through Mencken's reporting, and certainly there were some teachers even in the Bible Belt who could sneak evolution into theirv teaching — very carefully. But it wasn't until Sputnik focused attention on the level of scientific illiteracy America possessed that evoltuion even became a common subject — and almost simultaneously the Creation Institute sprung into existence to combat it.

  So a Scopes-like result in the trial could very much result in a Scopes-like result in the world at large, convioncing people of how evil and absurd the homophobes are — but, sadly, only convincing those who already were convinced.

  And the real danger of a Supreme Court decision against us would not be a simple defeat, but a runaway court led by Scalia declaring not just that Proposition Hate was legal, but declaring that marriage was 'only between a man and a woman' and invalidating all laws, judicial rulings, etc. that held otherwise, and all marriages held under the sanctions of these laws and rulings.

  Is this likely? No. Is it possible? Yes. It would all come down to Justice Kennedy, the least predictable member of the court.

• 29. James Sweet  |  January 18, 2010 at 12:49 am

  And the real danger of a Supreme Court decision against us would not be a simple defeat, but a runaway court led by Scalia declaring not just that Proposition Hate was legal, but declaring that marriage was ‘only between a man and a woman’ and invalidating all laws, judicial rulings, etc. that held otherwise, and all marriages held under the sanctions of these laws and rulings.

  Eh, could this really happen? It seems like the court would then be ruling outside the bounds of this case.

  In fact, I would argue that Scalia of all people is probably, for all his bigotry, one of the least likely people to issue such an opinion. Scalia is a constructionist, and the constitution doesn't say a damn thing about marriage.

  If we ignore what I believe to be very clear and obvious 14th Amendment issues with any ban on gay marriage, a literal interpretation of the constitution would leave it completely up to the individual states. There is no way that Scalia and co. would go beyond this.

  I do think there is a real danger of setting a precedent we don't want set. I mean, let's say it's 2018, and another case comes up to, say, a Circuit court. They might be like, "Well, look, the Supreme Court ruled in 1996 and then again in 2011" (or whenever) "that LGBT is not a suspect class. Members of this court might feel differently, but we are compelled to defer to such an overwhelmingly stated higher court precedent." I think that's the bigger risk…

• 30. Prup (aka Jim Benton  |  January 18, 2010 at 2:14 am

  Hello, James, another person I kniw from other sites. No, Scalia is no more an 'originalist' — all judges in every ruling are, by their lights, 'constructionists' — than is any other judge, simply because there are many things that weren't in the Constitution. In fact, the last 'true' originalist opinion was Justice Frankfurter's decision that because wiretapping did not include a physical entering of the home, it was not a 'search' under the 4th Amendment, a decision which has caused problems since it was rendered.

  A true 'originalist/intentionalist/strict constructionist' would have argue to throw out every precedent ho0lding corporations as 'hegal persons' since this was — despite the testimony of Rep. Bingham — entirely outside the intention of the 14th Amendment. I could easily argue a case that FEMA and any emergency relief to a state was unconstitutionbal since it doesn't promote 'general welfare' and certainly there would be no 'originalist' defence of any governmental relief of Haiti, or for the Marshall Plan, the GI Bill of Rights, etc.

  The fact is that the 'originalist/strict constructionist' position is and always has been an excuse for a judge to rule, and no judge has ever been consistent in its application, and thank the fiety of your choice for that.

• 31. James Sweet  |  January 18, 2010 at 2:24 am

  I agree no judge has ever been consistent in their application of textualist vs. intentionalist principles… but Scalia does tend to focus more on textualist-style arguments in his opinions, and I feel he leans that direction. Obviously, if he needs to be a little intentionalist to deliver the "right" verdict, he has no qualms about doing so… but handing down a ruling that the Constitution prohibits states from allowing same-sex marriage??? I just can't see it happening.

• 32. Prup (aka Jim Benton  |  January 18, 2010 at 3:33 am

  To quote from the Wikipedia report to Scalia's Lawrence dissent — no time to check the original [emphasos mine] — "Scalia also averred that, State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices.

  With this decision, Scalia concluded, the Court "has largely signed on to the so-called homosexual agenda." While Scalia said that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," Scalia argued that the Court has an obligation to decide cases neutrally.

  —
  A judge who argues that state laws against fornication or masturbation are — or should be, as is implied — sustainable is hardly an originalist. In fact, the only argument against sustaining such laws — traditional moral principles — leads precisely to the decision I fear, though I'd love to help advise the defense on what the 'traditional/Biblical' principles of marraige were, since they were — even as late as Timothy and Titus, polygynous.

• 33. Prup (aka Jim Benton  |  January 18, 2010 at 3:59 am

  If this shows up as a double, my apologies. But Scalia, aqccording to at least the Wikipedia analysis of his Lawrence dissent — no time to check the original — argued

  "that, State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices.

  With this decision, Scalia concluded, the Court "has largely signed on to the so-called homosexual agenda." While Scalia said that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," Scalia argued that the Court has an obligation to decide cases neutrally."

  If Scalia believes that state laws against fornication and masturbation can — and by implication, should — be upheld, I see no 'original;ist' drawback to his ruling that 'marriage has been and can only be between a man and a woman' and thus overruling all decisions and laws holding otherwise. The question is whether he could get four other justices to agree with him.

• 34. James Sweet  |  January 18, 2010 at 4:13 am

  But even in Scalia's absurd dissenting opinion in Lawrence v. Texas, he still argued that it was up to the states and other locales to determine what morality they choose to legislate. He did not argue in Lawrence v. Texas for a federal anti-sodomy statute; only that state anti-sodomy statutes were well-justified.

  I suppose it's conceivable that SCOTUS would hand down a decision vacating all court decisions saying that such-and-such a state has to allow gay marriage as per the state's constitution. i.e. I could see Scalia arguing that some aspect of the US constitution made it impossible for any state constitution to legitimately require marriage equality. And indeed, that would be a devastating blow… But I don't see even Scalia arguing that the US constitution supersedes each state's right to determine their marriage criteria…

• 35. draNgNon  |  January 17, 2010 at 10:52 am

  Just paying attention to language here –

  The rats know the ship is sinking, and they are heading for the exits. Ms. Hoover isn’t the only one.

  If you really want to win people to the side of accepting and supporting marriage for everyone, gay & straight, it's not really all that inclusive to call someone who just announced support for it, a rat.

• 36. JuliaL  |  January 17, 2010 at 1:22 pm

  Ah, I wasn't the only one who noticed that. A slip of the keyboard, no doubt.

• 37. Mary W  |  January 19, 2010 at 3:09 am

  They didn't. It is merely an old saying and it is you who went further and made the comparison.

• 38. Jon  |  January 17, 2010 at 10:52 am

  "The Conservative Case For Gay Marriage", Newseek, Theodore B. Olson:

• 39. Warner  |  January 17, 2010 at 4:06 pm

  Well, we are seeing more of the teabaggers because like a spoiled, petulant child, they scream the loudest.

  we are seeing more of a move by moderates and libritarians from the Rupugs because they want to hold their conservative values, but also are advocates for civl liberties.

  so let the teabag have the orgies of idiocy on he capital steps, masterbating each other's egos… not going to last. criminal insanity is not going to keep the people who truly matter in the party.

• 40. Dan Hess  |  January 18, 2010 at 2:12 am

  Does it really make sense to refer to people who support the cause as "rats fleeing a sinking ship?" I mean, I personally love rats, they're great pets, but the word has an extremely negative connotation amongst most Americans. Don't disparage the ones who're supporting us, 'k?

• 41. Mary W  |  January 19, 2010 at 3:21 am

  It is a common saying used all the time. When the ship starts sinking the cute little rats intelligently flee the sinking ship. It is a truth, it happens and it fits the situation.
  Much of the current regressive Republican Party has been bought and led by the extremist, anti-gay religious right for the past decades.
  Progressive Republicans are falling out of ranks like cute, intelligent rats fleeing the sinking ship. It is the analogy of jumping ship, not that a person takes on the persona or characteristics of a cute, furry and intelligent rat.
  Why are people saying being likened to an intelligent, cute, fuzzy rat is a bad thing? Do they have issues?

• 42. Prup (aka Jim Benton  |  January 18, 2010 at 4:01 am

  I concur with those who have complained against the title. ny chance of changing it?

• 43. nightshayde  |  January 18, 2010 at 5:28 am

  Is the fact that ss marriage actually had been allowed in the state prior to Prop8 relevant? If nothing else, it seems to me that a court *might* say that it's not acceptable for a right which has been given to a minority to be taken away by the vote of a majority (albeit a small majority). It would seem a slightly different matter to keep denying a right to a group which never had the right in the first place (thinking of laws in other states).

• 44. Prup (aka Jim Benton  |  January 18, 2010 at 5:47 am

  That was the reason why those couples who had married before Prop8 was passed remained married. We make a (technical) mistake by arguing that we — as a group — have rights or should have, when the rights are of each individual member of the group. This is why 'group libel' prosecutions, for example, are not allowed. An individual has to show he or she was damaged, which is why the plaintiffs have to show they were in fact planning to get married and were injured by the decision.
  Only then can the other issues be brought in.

• 45. ryan watrous  |  January 19, 2010 at 2:02 am

  Somebody should create a proposition to take away the legal right to marry for a man and a woman and see how it feels to have something and have a group of people try and decide what they can and cannot do…that's natural for them…well it's natural for gays and lesbians too!

• 46. Bill  |  January 19, 2010 at 4:31 am

  This entire drama seems like a lot of trouble, a lot of pain and a lot of destroyed families…

  All so that heterosexuals can prove to themselves that they are better than the LGTB children they created.

  Morality. Indeed.

• 47. On Monkeys and Marriage &&hellip  |  January 23, 2010 at 7:02 pm

  […] court trial which went head on at issues surrounding the teaching of evolution in schools – Brian’s Jan. 17 post touched on this […]