This will be brief because I’m on my lunch break, but today in California they are deciding whether Judge Walker’s decision on Prop 8 should be thrown out because he’s gay and therefore can’t be a judge on gay rights as well as determining whether the tapes of the trial should be locked up from view or allowed to be released.
The gay rights crowd is arguing that of course you don’t throw out a decision because a judge has human traits — wouldn’t a straight man be biased for straight people? It would never end. They are also arguing that there is no possible harm in releasing the tapes and keeping them under lock and key is absurd and retarded. They probably won’t say it precisely like that.
The anti-gays crowd, who KNEW THAT WALKER WAS GAY BEFORE THE TRIAL AND NEVER ASKED HIM TO RECUSE HIMSELF, are arguing that the gays can’t make legal decisions if they’re in a relationship and releasing the tapes would make
their side look like complete idiots the proponent’s witnesses uncomfortable.
I’ll write a shorthand version of whatever happens today later this evening.
I'm so late on all of this, but I'm going to talk about it anyway.
1. The stay will not be lifted on performing gay marriages in California. It's been so long since the argument before the ninth, that one might easily have forgotten that we were a hairsbreadth away from allowing gay marriages in California again, which would have been just as well, as there will be no marriages until the case is decided. And probably no marriages until it's gone through the full judicial process, which may be years from now. Justice is by no means swift in this country.
This is not a surprise, though. I would have been shocked if the courts had decided to let marriages go ahead. Despite the fact that there is no harm caused by allowing gay marriage, to admit so would be to tip their hand and to call into question their judicial ruling, so the Ninth can't really get away with supporting a lift of the stay.
2. In super awesome OMG yes news! As you may know, mutli-national gay couples who are married and have their marriages recognized elsewhere, cannot have their marriages recognized in the US thanks to DOMA. This means that people can be married but deported, very much unlike the way heterosexual married couples are treated. Deportations have been halted thanks to the questions about the legality of DOMA.
Confirmation that this policy is now in place nationally is cause for celebration. In many ways this is vindication of a two-decade long struggle by thousands of binational couples, advocates and attorneys. But the fight is not over yet. Many couples, after consulting with experienced immigration attorneys, may decide that this is the proper time to file a green card case. However, DOMA is still the final obstacle for attaining a green card; unless it is repealed or struck down, filing any case with immigration is not without risk. – Lavi Soloway
Yesterday was the presentation of the case to the 9th circuit. Now, it’s not the full 9th circuit, which means that whatever these three judges decide, they may well have to reconvene with the rest of the 9th circuit if whoever loses this round decides to appeal. It’s sort of a weird situation but it appears that, whatever they rule, the loser can then appeal either to the full 9th or to the Supreme Court. If they appeal to the full 9th, they will probably then appeal to the Supreme Court anyway. It all feels a bit futile when you know that it’s going to get appealed all the way up.
The three judges on the panel are, from most liberal to most conservative, Stephen Reinhardt, Michael Hawkins and Randy Smith. Both Reinhardt and Hawkins seemed to agree with Judge Walker’s logic, while Smith seemed to be a bit more on the fence. Even he, a fairly conservative republican, had a hard time with the idea that California had given a right and then taken it away — this led to one of the better lines of the day, in which a judge asked if it would be OK for California voters to reinstitute segregation. Smith did, however, think that promoting procreation and a biological mom and dad family environment was a reasonable rational basis for excluding homosexuals from the instituion.
His biggest problem with the prosecutorial case came with the question of standing. For those not following, the official defendants named in the case refused to defend the law, so several other people joined the lawsuit as Defendant Intervenors. The DI aren’t people who would normally even be allowed to participate, but because no one was defending Prop 8 in California, they were allowed to join the case. The question now is whether they are qualified to be DIs in a federal court.
The answer basically appears to be no, especially since SCOTUS has been tightening restrictions on who can be a DI in federal court over the last couple of decades. The problem Judge Smith has, and I actually agree with him here, is that California has a process that says that the Governor cannot veto something voted on by the people and that, by refusing to defend Prop 8, he’s nullifying what the people want.
So, I don’t think that any of the DI actually deserve standing, but in the absence of an official Defendant, I feel like to respect the legislative process in California, it might be necessary for the 9th court to recognize the DIs in this case.
I posted a flow chart yesterday that explains exactly how convoluted all of this is, but if the 9th Court determines that the DI don’t have standing, and SCOTUS agrees, then Walker’s ruling stands and gay marriage is legal in CA. If it’s determined that the DI do have standing, then it’s a much longer road to a final opinion, but there’s a chance that that opinion will legalize gay marriage nationwide.
By a longer road, I mean a wait for the 3 judges to rule on the constitutionality of Prop 8, then an optional wait for the full 9th court to rule on it, then a wait on SCOTUS to see if 4 judges want to have a hearing, and then finally a wait for SCOTUS to make a final ruling.
Now, in terms of argument, it has never been clearer that the DI simply don’t have one that goes beyond “gay people can have children, but they can’t do it accidentally and, even though there are no fertility requirements on straight people, we think that calling an institution marriage promotes responsible child-rearing, and we don’t think encouraging gays to responsibly procreate is something that marriage should do because they do it anyway.” And, revealingly, the judges asked how wide a ruling that agreed with Walker would have to be — in other words, if they agree that Prop 8 isn’t constitutional, do they then have to say that gay marriage is a right in their jurisdiction? Olson wiggled a bit, saying that that’s what he’s asking for without trying to bind their hands.
Being able to watch this all on live video just underlined how bad the lawyers on the DI side are and how good Boies and Olson are. I know that sounds like a biased opinion, but even ignoring the strength of argument, the DI lawyers stuttered, stammered, and weaseled their way through their arguments, only to be repeatedly called on it by the judges who threw out such gems as:
“Is there anything in the record to indicatate that she has any authority whatsoever?”
“You’re repeating yourself now.”
“If you don’t know the answer, say you don’t know.”
It was painful, but since it was televised, I really hope that some people who weren’t as familiar with the trial got the chance to see just how illogical the DI position is and how eloquent, intelligent and prepared the prosecution is. If you get the opportunity, I urge you to watch it, I will probably watch it again myself. http://www.youtube.com/watch?v=TA_vFjjd3yM
The DI also continue to shoot themselves in the foot by saying things like “the word is the institution,” which just underlines that even if gays had access to everything but the word, they wouldn’t have access to the institution itself. I’ll let Therese Stewart end this, because she is amazing(paraphrase from here):
If the word is the institution, then the argument is just that gays and lesbians would “stain” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause. Taking these components together, it infers animus.
If we only passed Prop 8 to show that same-sex couples aren’t as good, or as worthy as other couples, then isn’t the equal protection argument plain to see? It reveals the naked schoolyard taunting aspect of Prop 8. Nah-nanny-boo boo, you aren’t as good as me. And frankly, nanny-boo-boo isn’t a valid use of state authority.
Oral arguments in Perry v. Schwarzenegger, aka the Prop 8 trial, will be held before the 9th Circuit Court of Appeals today at 1 pm EST, 10 am, PST.
Set C-SPAN to stun and get ready for an all out brawl, 9th court style.
“Towleroad hosts a live chat and special coverage during and immediately following the hearing. Featuring Richard Socarides, Attorney and White House adviser under President Bill Clinton and bloggers Andy Towle and Corey Johnson.”
Or watch it live, online: https://www.calchannel.com/channel/live/4
And hopefully I’ll post my reax sometime today, though who knows when for sure…
Welcome to Week 34, I’m through 40 books, so doing well. Just 10 left to meet my goal.
36. Searching for Dragons – Patricia C. Wrede
This is the second novel in the Enchanted Forest Chronicles, and I enjoyed it quite a bit. I find it interesting that the books are all written from a different character’s perspective. It’s a neat trick, and I think it works particularly well for the children’s literature genre. You get to see the characters you love, but since you already know how they think, you get to spend time in other people’s head as they go along. Anyway, I highly recommend these books if you like children’s lit at all.
37. To Kill a Mockingbird – Harper Lee
People are very surprised that I never have read this book and never had to in school. Considering I grew up in the south, this is doubly surprising. I moved around a fair amount and I think it was just assigned for one grade in one school district and another in a different one, and so I missed it by switching districts. In any event, I watched the movie this past year at some point and I really enjoyed it, and I’d listened to some NPR stories about its fiftieth anniversary, so I bought it and read it in a night. Fantastic book, and it made me all the more impressed with the movie. I am not generally a fan of Southern Gothic literature, I find it oppressive and kinda icky (I know, technical term) because it’s generally so depressing and twisted. It usually makes me want to take a scalding shower and spend the rest of my life in a heavily air-conditioned, sterilized and dehumidified bubble. But I really liked To Kill a Mockingbird, it strangely reminded me of some of the good things about the South, not the least of which is that there are many more Atticuses now than there were then.
38. The Prop 8 Report – David Fleischer
Wow, 500 pages of analysis of the Prop 8 campaigns. It was a lot to read, and I’m sort of including the Prop 8 decision in this too, since I did read that as well. Basically, the lesson I got from this is that we really need to get the word out that gay marriage helps children. The Prop 8 Proponents put out the whole “the children are gonna be destroyed” message and that alone basically lost gays the right to marry. So, how do we educate people that gay marriage helps children? I dunno, but it’s really important that we do so. The fact is that there are children being raised by same sex couples and that those children would benefit from their parents being able to marry. So, we should encourage a real discussion about children, because the facts are on our side. And we should stop being surprised that the Anita Bryant tactic of 30 years ago still works.
39. Flim Flam! – James The Amazing Randi
I actually didn’t enjoy this book as much as I thought I would. I love Randi, he’s a great speaker and an all around cool guy, so I thought I’d enjoy the book. But I just didn’t find it all that interesting. The book basically debunks a bunch of different woo things like ESP and UFOs and the Bermuda Triangle — you know, National Enquirer stuff. And, I guess there’s a place for that and all, but I find the whole thing rather tedious. To me this is like debunking Cinderella or Superman, I guess there are people out there who believe it, but I tend to think they’re people who just need a fairy tale of some kind in their life. Don’t get me wrong, I think it’s really retarded (it’s satire!) for people to believe a lot of that stuff, but so long as they aren’t hurting anyone, I don’t really care. Like, homeopathy, that’s something to rail against. The Bermuda Triangle? I just can’t be bothered. Maybe this is why I identify more as an atheist than a skeptic.
40. The Fifth Elephant – Terry Pratchett, read by Stephen Briggs
Stephen Briggs has a much different reading style than Nigel Planer, and I admit I like Planer better. Mostly because I don’t like the voices Briggs uses for the watch in this book. He’s not bad, not at all, I’m probably just used to Planer. I think all the rest are read by Briggs so I suppose I should get used to him. OK, that aside, I did quite enjoy this book. It’s about Vimes, who I like, and it has vampires fighting werewolves. It was strangely not as funny or tongue-in-cheek as most of the Discworld books, it felt like an almost straight detective adventure novel. The plot may be the best constructed of his books so far, though plot has never been the main reason I read his books.
I am a GENIE-OUS!
But if Walker reverses the stay and lets the gays marry, I’ll be the happiest person to be wrong ever.
No second source confirming yet: According to a source who has seen the 136-page decision, U.S. District Court Judge Walker has ruled Proposition 8, the California voter-approved ban on gay marriage, unconstitutional under both the due-process and equal-protection clauses.
Should you wish to read the entire thing, it is available here.
From what I can tell, there’s only one argument that Prop 8 Proponents have, which is that only heterosexuals can get accidentally pregnant, so marriage is necessary only for them. It’s a strange argument, no doubt, but it is essentially the only quantitative difference between gays and some heterosexuals. I say some because, of course, people who are infertile, past menopause, or who have no intention of reproducing are allowed to get married, so long as their genitals look one way or another. To say that marriage is only about protecting children from being accidentally created is… well… changing the definition of marriage, which is supposedly something these guys are against. Judge Walker said it nicely.
And [marriage], as Mr. Olson described this morning, is a right which extends essentially to all persons, whether they are capable of producing children, whether they are incarcerated, whether they are behind in their child support payments. There really is no limitation except, as Mr. Olson pointed out, a gender limitation.
Judge Walker asked a series of penetrating questions, I was quite impressed. They were the questions I would have asked, but much less snarky. He asked why the chief witness for the Prop 8 side had said we’d be more American the day we allowed same-sex marriage, he asked why it’s OK to take away the rights of a minority when nothing good comes of doing so, he wanted to know why it wasn’t gender discrimination if not homosexual discrimination, and he wanted to know if it was appropriate for the court to make a decision still being fought over politically. And of course Mr. Olson was eloquent as always.
What we’re talking about here is allowing individuals who have the same impulses, the same drives, the same desires as all of the rest of us, to have a relationship in harmony, stability, and to form a family and a neighborhood, all of those things that the Supreme Court talked about. And, now, tell me how it helps the rest of the citizens of California to keep them out of the club. It doesn’t.
These are, undoubtedly, very pretty words. But I actually think the entire decision is going to come down to one exchange between Walker and Olson, and it’s not necessarily a terribly pretty one, but it is, I think, the most important. And that is, is it politically viable to send this to the Supreme Court now? It’s an important question, and one that a lot of people who support gay marriage disagree on. There was a lot of hostility and distrust from the gay community at the beginning of this trial because they were afraid it was doomed from the start and would sink the chances of gay marriage getting passed because the Supreme Court is so conservative (little c).
This is a long excerpt, but as I think everything depends on it, I’ll leave it long.
THE COURT: I fully understand. But there was already a tide running, a political tide running with respect to interracial marriage. And, as Mr. Cooper duly commented about the Supreme Court, the Supreme Court took note of that. Now, do we have a political tide here that’s going to carry the Supreme Court?
MR. OLSON: I believe, Your Honor, that there is a political tide running. I think that people’s eyes are being opened. People are becoming more understanding and tolerant. The polls tell us that. That isn’t any secret.
But that does not justify a judge in a court to say, ”I really need the polls to be just a few points higher. I need someone to go out and take the temperature of the American public before I can break this barrier and break down this discrimination.”
Because if they change it here in the next election in California, we still have Utah. We still have Missouri. We still have Montana. This case is going to be in a court. Some judge is going to have to decide what we’ve asked you to decide.
And there will never be a case with a more thorough presentation of the evidence. There will never be a case with such a wildly crazy system that California has. There will never be a case more like Romer, where the right existed and hen it was taken away. There will never be a case against the background.
The Supreme Court really made that step that you are talking about, in Lawrence vs. Texas. And that overruled Bowers vs. Hardwick, which was only 20 years earlier. But that broke the barrier by saying that the behavior, the conduct between the individuals is a right of privacy, and it’s protected by the Constitution.
And the right of privacy is the same right that we’re talking about in the context of marriage. And I don’t think that is justification for waiting any longer.
And, as I said, the most compelling thing that I have read on that subject was the arguments that were being made to Martin Luther King saying, you know, “You ought to ease up. The people aren’t ready for these kind of changes. There’s going to be a backlash.”
And his letter from a Birmingham jail explaining why he could not wait to press the civil rights of his fellow citizens is as compelling a statement on that subject that’s ever been written.
And that’s the argument. Everything else is proven, Prop 8 is unconstitutional, it’s wrong, there’s nothing that the Proponents have said that holds any water. The only argument holding any water is the one Judge Walker is acknowledging, which is that maybe America isn’t ready to be the place it promises to be. And there are many pragmatists, old and young, gay and straight who will agree with that, and there are many idealists who are crying and screaming and gnashing their teeth at the thought that politics is ever more important than human decency.
I think Judge Walker is ultimately a pragmatist, but he’s got a long view of things, and I think he’ll want to be on the right side of history. So, my bet is that he’ll rule in against the constitutionality of Prop 8 and do so very conservatively and thoroughly, the real question is whether he’ll immediately reinstate gay marriages or not, and I tend to think he won’t. But maybe.