Archive for the ‘Civil Rights’ Category

Judge Walker Tees up Prop 8 Case for Justice Kennedy

Monday, August 9th, 2010

I have to say that I hadn’t paid attention to the Prop 8 case before last week’s decision. I assumed that the Supreme Court overturning Prop 8 and declaring a constitutional right to gay marriage had close to no chance under the Roberts court.  

After the coverage of Federal Judge Vaughn Walker’s decision declaring Prop 8 unconstitutional, I’m realizing along with a lot of other people that this possibility has a real chance of becoming a reality.

To me, the most interesting part of this case is the pure gamesmanship that has gone into it. To begin with, the case against Prop 8 is being argued by David Boies and Theodore Olson, the two men who argued against each other before the Supreme Court in the Bush v. Gore case. These men are two of the most prominent lawyers in America today. Boies is one of the most respected trial lawyers in America and Olson served as Solicitor General of the United States under George W. Bush and was considered for a Supreme Court nomination. The judge in the case is a George HW Bush appointee who has an reputation as an independent thinker with a libertarian bent. Judge Walker is also gay.

 As Dahlia Lithwick detailed in this week, Walker lays the groundwork for a Supreme Court overturning of this law with an extremely well crafted opinion that seemed to be written with a keen political eye towards having Justice Kennedy cast the deciding vote to guarantee gay couples the right to marry.

While it’s impossible to say with any certainty how the individual Justices would rule on the case, the idea of Kennedy casting the swing vote assumes that all of the left of center Justices would vote in favor of a right to gay marriage and that the 4 staunchest conservatives would vote against it. Given the fact that Kennedy has increasingly sided with the conservative block of the court in recent years, I had assumed that he would do the same in this case. 

However, I had forgotten that Justice Kennedy has been an unlikely champion of gay rights on the Supreme Court. Kennedy wrote the opinion for a 6-3 majority in Romer v. Evans, a 1996 case that struck down Colorado’s Amendment 2, which would have banned all jurisdictions in Colorado from naming gays as a protected class. He also wrote for a 6-3 majority in Lawrence v. Texas, a 2003 case that held that Texas’ anti-sodomy laws were unconstitutional. 

As Lithwick notes, Walker included seven citations to Justice Kennedy’s  opinion in Romer v. Evans and eight citations to his Lawrence v. Texas opinion.

Also included among the highlights of  Judge Walker’s case are 80 “findings of fact” which appeals courts must supposedly defer to in making their decision. Among the most notable of Walker’s findings are the following:

states have long discriminated in matters of who can marry; marital status affects immigration, citizenship, tax policy, property and inheritance rules, and benefits programs; that individuals do not choose their own sexual orientation; California law encourages gay couples to become parents; domestic partnership is a second-class legal status; permitting same-sex couples to marry does not affect the number of opposite-sex couples who marry, divorce, cohabit, or otherwise screw around. He found that it benefits the children of gay parents to have them be married and that the gender of a child’s parent is not a factor in a child’s adjustment. He found that Prop 8 puts the force of law behind a social stigma and that the entirety of the Prop 8 campaign relied on instilling fears that children exposed to the concept of same-sex marriage may become gay.

Taken altogether, this is an extraordinarily well crafted opinion and lays a clear path for the court to declare a right to gay marriage.

Whether Kennedy would be open to cast the deciding vote in favor of the plaintiffs is, of course, an open question. Certainly, his decisions in Roemer and Lawrence both indicate that it is at least plausible that he would extend the rights granted in those two cases to cover the issue of marriage equality for gays and lesbians, but there is also an argument to be made that the right to engage in consensual sex and be free of discrimination are different than the right to demand that the state recognize a marriage between two people of the same gender.  

This case will be one to watch in the coming years. For now, the political maneuverings that are going on in preparation for what most assume will be an eventual hearing at the High Court have been fun to watch.

It’s Time

Thursday, May 27th, 2010

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At the risk of posting the entire show from today, this is a good take on this.

Given that we need every soldier we can get these days and 75% of American’s agree that it should be repealed, this seems like a no brainer, but I never underestimate the ability of the minority to block change in America.

Guess we’ll see soon if they have the votes.