Month: August 2010

I'm not through with it yet but it's hard to disagree with this reader:

A reader wrote, "His clerks made that trial record their bitch, and Judge Walker took that dog for a walk."

To me, reading the opinion, this is a gross understatement.  Judge Walker's opinion reads more like, "Plaintiffs proved all their points and demolished the proponents' witness by showing that he was a mere pundit not an expert.  Proponents failed to do anything substantive."  The subtext reads, "And I [the judge] feel like fining the proponents for the amount of time they made me waste; I am resisting the urge to slap them around."

Once you get done with that, the sheer breadth and weight of the facts assembled make me wonder how in the hell any judge would vote to overturn this case.  Appellate judges can't really overturn facts; they can only point out errors in admissibility or weight given to evidence and order a retrial.  Given the factual record assembled, I cannot fathom that a retrial would result in anything different except giving the plaintiffs more evidence and time to develop their case.

Scalia, dissenting in Lawrence vs Texas:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples…

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Walker:

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

Given the precedents of Romer and given Lawrence, how would Scalia disagree with Walker's logic? More to the point, unless he wants to reverse his own decisions in Romer and Lawrence, how would Anthony Kennedy disagree?

I am increasingly confident that when this case eventually gets to the Supreme Court, the logic of equality will win. Once you have conceded that gay people are a class, and that their sexual orientation is integral to their lives and immutable, and that they are not defined by sex acts that can be performed by gays and straights alike, then the ban on marriage equality is left without anything but an amorphous claim to heterosexual supremacy – or a judicially irrelevant appeal to simple custom (already invalid in five states and many countries) – to support it.

Walker is right. What this comes down to is whether gay people are inferior to straight people, and whether their citizenship is thereby to be deemed inferior as well. The entire weight of the American tradition stands athwart the imposition of a second-class group of people and declares: No!

Know hope.

A reader notes:

The Prop 8 case now makes three consecutive judicial opinions holding that laws prohibiting same-sex marriages have no rational basis. Interestingly, all three were authored by judges who were nominated or appointed by Republicans. Today’s Northern District of California opinion was authored by Judge Vaughn Walker, who was nominated by Ronald Reagan and George H.W. Bush. Last month’s District of Massachusetts opinion was authored by Judge Joseph Tauro, who was nominated by Richard Nixon. The Iowa Supreme Court (unanimous) opinion was authored by Justice Mark Cady, who was appointed by Republican Governor Terry E. Branstad.

Sometimes, reason wins.

Chait smacks Dan Senor around:

Senor is arguing, I support freedom of religion, and I believe that your group doesn't support terrorism, but other Americans don't feel this way. Of course this is an argument for caving in to any popular prejudice or social phobia whatsoever. Hey, I'm happy to let a black family move into the neighborhood, but other people here think you're probably crackheads who spray random gunfire at night, so in order to prevent racial strife you should probably live somewhere else.

This episode is a major statement about American pluralism, minority rights and America's ability to make the necessary divide between moderate and extremist Muslims. A lot of people are going to eventually feel ashamed about where they stood.

It is something of a milestone that a Republican governor and a Conservative prime minister and a Republican lawyer have all reached the same conclusion. Arnold:

"For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves. At the same time, it provides an opportunity for all Californians to consider our history of leading the way to the future, and our growing reputation of treating all people and their relationships with equal respect and dignity.

Today's decision is by no means California's first milestone, nor our last, on America's road to equality and freedom for all people."

But the battle now goes to the Supreme Court and Anthony Kennedy. And one is mindful of Scalia's dissent in Lawrence.

(Photo: Prop 8 opponents celebrate the ruling to overturn the ban on gay marriage outside of the Philip Burton Federal building August 4, 2010 in San Francisco, California.US District Judge Vaughn Walker announced his ruling to overturn Prop 8 finding it unconstitutional. The voter approved measure denies same-sex couples the right to marry in the State of California. By Justin Sullivan/Getty Images.)

A reader writes:

What strikes me about Judge Walker's opinion is the amount of evidence he included there – numbered, paraphrased facts with direct citation to and quotation from the trial record. As a lawyer, I can't say that I have ever seen a judge include that much of the trial transcript in an opinion. He would have done this to make his record so that when the case is appealed – as everyone knows it will be – he has included enough direct evidence produced at trial to support his application of the law. His clerks made that trial record their bitch, and Judge Walker took that dog for a walk.

Whether the appeals court overturns on the application of law is a different issue. But it's not going to be a fact issue that does it. And then the way that he completely flicks away Prop 8 proponents' experts' testimony. The man is smart.

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional," – Judge Vaughn Walker.

Reax to follow:

Prop 8 Ruling FINAL

Howard Gleckman thinks the Bush tax cut debate is a distraction. The questions he wishes Obama would pose to Congress:

*Should the income tax continue to be the foundation of our revenue system? If so, do we want to raise rates while protecting hundreds of billions of dollars in special interest tax subsidies. Or should we reprise the 1986 Tax Reform Act, where we broadened the tax base by eliminating many special provisions and lowered overall rates. It seems like a good idea to me, but let’s debate it.

 

*Is the income tax fixable at all, or is it so broken that we’ll need to replace it, or supplement it, with a Value Added Tax or some other consumption tax? Such a change would have profound implications, not only for the budget, but for spending, savings, and investment. And it could create a very new set of winners and losers than under the current tax system.  

 

*What is the role of Social Security and Medicare taxes in a fair and efficient revenue system? With almost no discussion, this year’s health law fundamentally changed the nature of the Medicare tax by imposing it [on] investment income, rather than just wages (starting in 2013). Perhaps we want to talk about this one some more.

If we had a rational political system and a viable opposition party, it would be lovely, wouldn't it?