Thoughts on the Prop. 8 Case (Same Sex Marriage)

Like a fair number of progressive lawyers, I've been following the Prop. 8 case for quite some time.  I read Judge Walker's opinion at the trial court level, read the opinion in the 9th Circuit, and now have read the transcript of today's hearing in the Supreme Court.  So, as an attorney, specifically a trial attorney, I'd like to share the following thought:

The proponents of Proposition 8 totally fucked up their case.  I don't mean the attorney for the proponents fucked up today, but the proponents themselves fucked up their case completely.  And much to everyone's chagrin, we're going to have to do this all over again.

Before I get too deep into the waters, here is some background: in 2008ish the California Supreme Court held that California's same-sex marriage ban was unconstitutional under the California Constitution because it violated California's equal protection clause and the right of privacy clause.  The Court decided this based upon the fact that California had more or less granted all the rights to the same-sex couples as straight couples except for marriage, and thus, there is no rational basis to not allow gays to marry (more on this analysis later).  Shortly thereafter, the voters approved Prop. 8, which amended that California Constitution to specifically prohibit same-sex marriage.  While there was some back and forth about the proposition's legality, ultimately, the proposition was upheld.

Meanwhile, Theodore Olsen and David Boies, who represented both sides of the Bush v. Gore case (and who are at the absolute top of the legal profession), decided they were going to challenge Prop. 8 in Federal Court.  This was viewed as absolutely crazy because the Supreme Court is viewed as being very conservative.  But they did it anyway, and lucked out in getting Judge Vaughn Walker.  Not because Walker is gay (though he is), but because Walker was absolutely diligent.  Rather than issue decisions on a summary judgment, or by pure motion practice (lawyers filing briefs with the Court), he held a trial.  A full, 12-day trial with witnesses, etc.

And that trial was the beginning of the problems for the proponents of Prop. 8.  Initially, Prop. 8 proponents had 8 witnesses set to testify, and then six of them chickened out.  The two who did testify was a guy with an engineer's degree testifying about sociological impacts of same-sex marriage, and a political science professor who testified that gays had some political power in California.  That was it.  Of all the evidence the Proponents could have put before the Court, they selected two guys who Judge Walker either deemed untrustworthy or irrelevant.

Thus, we have fuck-up number 1 - they selected witnesses who were completely incompetent on the issue.  This is a key point because in the record before the Court is that the California ban on same-sex marriage has no merit, Judge Walker ruled that there was no rational basis for the ban.  The 14th Amendment guarantees equal protection under the law, and so, anytime the law discriminates against a class of people, the state has a duty to prove that the law itself has some sort of rational basis beyond discrimination.  Again, here, there was none evidence of a rational basis.  The Proponents appealed.

The 9th Circuit caught onto this fact, and noted that same sex couples in California are allowed to enter into domestic partnerships, allowed to adopt children, are protected from discrimination by private individuals and by the state.  So, what's in a label for California?

But here's where fuck-up no. 2 comes into play - the Proponents appealed the decision on their own behalf.  Meanwhile, the State of California saw the decision of Judge Walker and decided they were cool with it, and refused to appeal.  This is key because under Federal law, specifically Article III of the Constitution, requires that participants in Federal Court have to have standing - that is, have a real stake in the litigation.  Random guy may be pissed about same-sex marriage, but ultimately, he's not affected by it.  Sure enough, the very first question out the gate at the Supreme Court from Chief Justice Roberts was all about standing.  Oops.

Now this is a fuck-up because private entities CAN challenge decisions like Judge Walker's decision overturning Prop. 8.  Its just that those entities have to be organizations who's organization statement directly opposes same-sex marriage.  Under the Supreme Court's case of Haven's Realty v. Coleman, Fair Housing organizations have standing to bring lawsuits because acts of housing discrimination violate the organization's purpose (to end housing discrimination).  Thus, if one of the MANY organizations who oppose same-sex marriage (such as NOM) were the petitioners to the Supreme Court, there would be clear standing.

So, there is no good evidence in California that the same-sex marriage ban has any rational basis (other than gays are icky), and the wrong people are challenging the Court's ruling.  Double oops.

At the same time, it couldn't happen to a nicer bunch of homophobes.  After all, these are people who want to prohibit same-sex marriage.  There really isn't a rational basis for any sort of ban beyond our own homophobia.

As far as today's argument went, I thought Olsen did a great job at the argument today,  but I have one quibble - when he was asked by Justice Scalia when a ban on same-sex marriage was unconstitutional, he asked rhetorically, "When did the ban on interracial marriage become unconstitutional?" Which is a good rhetorical device, but it didn't drive home the point - same-sex marriage bans have been unconstitutional since the 14th Amendment was adopted, BUT, we only figured this out recently.  Prior to that time, we, judiciary included, were blinded by our own homophobia.  Just like a ban on interracial marriage should have always been deemed unconstitutional, but it was upheld by racist jurists.  That should've been Olsen's point.

And here is where I sound a bit odd - like Scalia, I think of the Constitution as a "dead" document.  Meaning that once the words are written on the page, they stay there.  But, and this is where I differ, our interpretation of the Constitution changes based on the evidence presented to us.  Thus, the First Amendment applies to blogs like this one, even though the Framers could never have imagined the internet.  But I'm digressing. . .

I think that the Supreme Court is going to punt on this issue.  Whether its holding that the Petitioners lack standing, or finding narrow grounds for upholding the 9th Circuit, the Supreme Court isn't going to jump into the fire.  This is because Justice Kennedy isn't ready to pull the trigger, and Chief Justice Roberts doesn't want the Supreme Court to gain any more notoriety.  Upholding a ban on same-sex marriage (and thus invalidating a finding of fact), or supporting same-sex marriage nationwide may be too much for the Court.

That said, the Olsen-Boies strategy of bringing a lawsuit under a state law, then trying the issue in open Court and obliterating the rationale of the anti-gay proponents of such bans is very, very good.  And it will probably continue on for quite some time.  If anything, Olsen and Boies screwed up by choosing California as the test run, and not Alabama (or Kansas, etc).  Had they tried this case in Kansas, the Supreme Court's rationale would necessarily have to be broader than this one.  But that's another case.

Looking Back At Iraq

In one of those shocking, but not so shocking timelines, today marks the 10th anniversary of the start of the War in Iraq.  On one hand, a lot of American history has passed since that time, but at the same time, I feel old.  After all, when we invaded Iraq, I was finishing my law degree and working for the Legal Clinic.  I distinctly remember arguing with my conservative classmates about the upcoming war, and upon the invasion, I bet a classmate that the war would take more than two months.  (By the way, since neither one of us wanted to actually benefit from the bet, the terms of the bet was that the loser would buy the dinner of a third classmate).  Unfortunately, I "won" the bet, though I'm not sure if that third classmate ever got his dinner.

I had always opposed the Iraq War because, as I argued at the time, the premise made no sense to me.  The premise was that Saddam Hussein had chemical/biological/nuclear weapons, and that he would give these weapons to Al Qaeda to carry out attacks on the United States. But such a theory completely ignored who Saddam Hussein and Osama bin Laden were.  

Saddam Hussein was a crafty, but ultimately, a run-of-the-mill strongman.  He wanted to be powerful, and to maintain power.  If maintaining power meant intimidating his people through torture, murder, and occasional genocide (as he did in the Kurdish north), so be it.  If taking power meant invading neighbors, then he would do that too.  He would even attack Israel if it could dismantle an alliance arrayed against him.  But, he was no idealist, and that was why the U.S. backed Saddam in his early days of power.

By contrast, Osama bin Laden was an idealist.  He grew up rich, but left his riches to fight in Afghanistan.  He fought the Soviets for ten years, and then turned his attention to the United States.  Where Saddam Hussein was flexible ideologically, Osama bin Laden was not.  Moreover, bin Laden opposed the secularism of the Ba'athist movement, which Saddam Hussein was. 

In other words, these two were not going to be on friendly terms.  Ever.  The idea that Saddam would entrust WMD to someone he wouldn't like, much less trust, was HIGHLY unlikely.  Add to that concept that Saddam before had only entrusted these weapons to his first cousin ("Chemical Ali"), and even if Saddam had WMD, the odds that he would give these weapons to Al Qaeda were next to none.  Of course, it turns out that Saddam did not have any WMD anyway.

At the time, though, no one was going to listen to someone like me.  I was, after all, just a law student.  But, in the aftermath, the interesting thing is that the Iraq War had some interesting effects on American politics and journalism.

On the political side, the Iraq War was responsible for Barack Obama's election.  Not completely responsible, mind you, but it had a huge effect because his early opposition to the Iraq War solidified his position with the base.  During the primary, Clinton couldn't outflank Obama to his left (always a fear during a Democratic primary) because Obama opposed the Iraq War, and Clinton did not.  This opposition allowed Obama to take more conventional positions, while getting credit for being more liberal than he actually was.*  This had to drive Hillary Clinton completely crazy.

What's more, the Iraq War gave us the first glimpse of how inept the Bush Administration really was.  Soldiers were sent out to war so ill-equipped that the folks back home actually spent their own money to get their relatives body armor.  Soldiers and Marines who were injured had to deal with substandard health care back home.  And the Bush Administration put Iraq in the hands men like Paul Brenner, et al., who consistently made horrendously bad decisions (such as, dismantling the Iraqi Army, failing to protect weapons caches, trusting Chalabi, and many, many more).

This ineptitude lead to the losses the Republican Party faced in 2006, 2008, and 2012.  The only real win on the national stage for the GOP came in 2010, when a fair number of Republicans distinguished themselves from the Republican Party elites.  

On the journalism side, the Iraq War really accelerated the changes in the media that had already begun.  Bloggers, who got the Iraq War right, became more influential.  Still, and as Media Matters reminds us, a fair number of commentators who got the Iraq War wrong are still in positions of power (many of whom predicted a Romney landslide, btw).  Nonetheless, the media is more diverse, more fragmented than it was in 2003, and that's a good thing.

With that said, I still believe the Iraq War was a horrendous error that will haunt America for at least a generation.  Even though we "won" the war, it cost tens of thousands of lives, and trillions of dollars.  Strategically, it allowed Al Qaeda to survive much longer than it should.  It probably has lead to the survival of the Taliban in Afghanistan.  And Iraq is more fragmented and potentially dangerous than it was before.** 

 

*Republicans, and especially conservatives, love to talk about how Obama wasn't fully vetted by the time he was elected.  From the conservative prospective, this is nonsense.  The conservative media threw everything at Obama, its just that nothing stuck.  If anyone should be pissed about vetting, it has to be Clinton, who had a fair number of positions to Obama's left, and had to play the role of the conservative/moderate Democrat because of her support for the Iraq War.

**With one exception - the Kurdish region in Northern Iraq, which has been stable and prosperous ever since the War.  Hopefully, this area won't destabilize Turkey, which has its own Kurdish population.