IGF CultureWatch

Two titans of the law, former Solicitor General Ted Olson and major Microsoft annoyance David Boies - who squared off against one another in a little case we like to call Bush v. Gore - will be challenging the constitutionality of Prop. 8 in federal court.

They are on the right side of history at the wrong time. One of the best things about the California Supreme Court decision is that it preserves something that is still necessary in our culture when it comes to gay equality - the political process. It continues to be wildly unfair that an extremely tiny minority of us have to fight for our rights with about 97% of the dominant population. But the fact is that, against impossible odds (given the history of extreme historical bias against homosexuality), we are nearly there. Many states have further to go than California, of course. . .

But that's exactly the point. The lengthy opinion yesterday is exclusively about California state law, and doesn't have any direct effect on Nevada or Idaho or Arkansas or Oklahoma. Right now, they don't have anything to fear from our court's decision. It is our constitution that was at issue, and it will be our voters who will continue to hear why we think equality with an asterisk is not the kind of thing we want to leave as our state's legacy. But until many more states have traveled the path that California and Massachusetts and Connecticut and Maine and Vermont and Iowa have, a federal decision in our favor in the next couple of years could lead us to the next DOMA - and the last one was bad enough.

Like many others, I am fast losing any faith in our President's interest in or willingness to live up to the promises he made about gay rights. Like California's hapless Governor, Obama is turning out to be a Big Talker with nothing to show for it. Right now, we need this work to be done at the political level. That is where we need Boies and Olson most. It's also where we could use Obama most, but that doesn't seem to be his thing.

After the Prop. 8 ruling, the Family Research Council's Tony Perkins proclaimed: "In the face of its toughest challenge, the state's marriage protection amendment withstood its fiercest test. We are determined to fight until marriage enjoys this same protection in all 50 states."

Sic transit the culture war. What the right won in California is a constitutional rule about use of the word "marriage" by same-sex couples. Same-sex couples in California continue to have all the rights of opposite-sex married couples, but can't call themselves married - except, of course, the 18,000 same-sex couples who are married.

Actually, even that's not true. Future domestic partners can call themselves married if they want to. They won't be able to use that word in a legal sense, but who in their local communities, families or workplaces will that make a difference to, except maybe a few self-righteous Christianists who might get huffy. What kind of a lawsuit would they file, though that wouldn't involve a first-amendment defense? People can and do misuse words with legal meanings all the time. Ask a lawyer.

I'm pretty sure that's not really the kind of marriage protection Perkins wants to fight for in the other 49 states (and DC!). He's actually won more substantive battles in states that have constitutional amendments which establish, as a constitutional principle, that same-sex couples are to be treated unequally. That's what FRC is fighting for - full inequality.

In that, California is not a victory for the right. Or if it is, it's the soft victory of low expectations.

The California Supreme Court released its much-awaited Prop. 8 decision in Strauss v. Horton today - all 195 pages of it. The majority opinion takes 136 of those pages to rule that California's voters do have the right to amend the state constitution to make sure same-sex couples can't call themselves married. For the record, Justice Kathryn Werdeger comes to the same conclusion by a different route in her 10-page concurring opinion, making it a 6-1 decision, with Justice Carlos Moreno dissenting and arguing Prop. 8 should have been thrown out.

It is a pity that few of those pages will be read by those with the most trenchant comments about the opinion. As with the two other cases in California's trio: Lockyer v. City and County of San Francisco (2004) and In re Marriage Cases (2008), the court has demonstrated - for anyone paying attention to what they actually write rather than just the bottom-line result they reach - that they understand and can articulate exactly what their job is as judges. Justice Joyce Kennard has a three and a half page concurring opinion that nicely sums up the difference between last year's case and this year's model. These are not easy issues and this court takes its time to sort them out and answer every reasonable question before them.

The bottom line, though, is important. The way I read it, Prop. 8 is being upheld because it did not change - or purport to change - the full, substantive equality California same-sex couples have under domestic partnership laws. In this, the Prop. 8 proponents made not only a savvy strategic move but also, it turns out, a canny constitutional one as well.

Early on, a substantial faction of supporters wanted to argue that Prop. 8's intentionally vague language would invalidate the current domestic partnership laws as well as any same-sex marriages. But a more moderate camp prevailed, and the ballot arguments in favor of Prop. 8 explicitly said that it would have no effect on domestic partnership at all. That won them the election, and more important, it won them the Court.

The majority ruled that, since Prop. 8 didn't take away any of the comprehensive legal rights same-sex couples have under California law, the court did not have before it any wholesale revision of the equal protection clause or any other part of the constitution protecting the fundamental rights same-sex couples have. Our lawyers had many clever and creative arguments to make, but the glaring fact of California's success in protecting same-sex couples stood as the glaringly ironic barrier to the melodrama they were trying to offer up. While acknowledging that the word "marriage" is not in any sense trivial, the court's majority said that constitutionalizing the use of a word does not violate the structure of California's state government in a way that would require the court to strike down Prop. 8.

I think the court was headed in that direction at oral argument, as I mentioned at the time.

There will now be a few protests by the usual suspects in the usual places, but the real action will take place Saturday in Fresno. The ball is now squarely back in the political court; the only way to change Prop. 8 is to do another constitutional amendment. Fresno is California's fifth largest city, but is squarely in the middle of the agricultural Central Valley, and is by far the largest city to vote in favor of Prop. 8. They need to hear from us much more than San Francisco or L.A. or San Diego do, and I think this is a worthy use of our time and resources.

NOTE: Some people may be looking for more in the way of legal commentary on the decision. As is so often the case, Eugene Volokh's site should be your go-to. Plus, there's bonus info on the nomination of Sonia Sotomayor to the U.S. Supreme Court.

Just to follow up on Jonathan's fine post below, when someone labeled a "social conservative" like David Blakenhorn opposes gay marriage but supports civil unions, he's a bigot. When Barack Obama takes the same position, he's a "fierce advocate" for gays and lesbians.

This same hypocrisy was evident over the brouhaha regarding Miss California USA Carrie Prejean, leading to Donald Trump's assertion of an inconvenient truth: that when Prejean said she believes marriage is only between a man and a woman, she "gave a very, very honest answer when asked a very tough question at the recent pageant. It's the same answer that the President of the United States gave."

We don't know how Prejean would have responded to a question about civil unions (or, as Obama likes to put forth as a major sign of his pro-gay sympathies, his support for same-sex hospital visitation rights). Liberals like to claim that the difference between gay-marriage-opposing conservatives and gay-marriage-opposing "progressives" is really, really important (really), involving tone and nuance.

Regardless, it shouldn't be much of a surprise following so many denounciations directed at Prejean that, in response, she does become a spokeperson for the anti-gay marriage movement. And wouldn't that make all sides feel happy and vindicated.

Here's a good example of the sanctimonious extremism with which too many gay-rights advocates are shooting themselves in the foot.

In a recent blog post about Supreme Court mentionee Leah Ward Sears, I noted that she has recently joined the Institute for American Values, "which some have characterized as anti-gay, though it's not."

In reply, a commenter says that if you oppose gay marriage-as David Blankenhorn, IAV's president, does-you're anti-gay. In fact, you're just one step shy of "burning gays in the street".

So let's think about this. Blankenhorn favors federal civil unions if coupled with religious-liberty protections. He has repeatedly affirmed "the equal dignity of homosexual love," for instance here and here. He says IAV takes no institutional position on gay marriage.

As for same-sex parenting, his position is that all family structures are not alike and that it's best for children to be raised by their biological mother and father-but he also thinks same-sex adoptions should be allowed.

I recently did a radio talk show with a Family Research Council representative who not only denied the equal dignity of homosexual love but asserted that "homosexual relationships are on balance harmful to the people who engage in them and society as a whole." That's anti-gay. But Blankenhorn's positions, agree or disagree, are compassionate, reasonable, and shared by millions of reasonable people whose goodwill we need.

If we tell those reasonable people that they are the equivalent of gay-burners, or even of FRC, we not only flunk Basic Moral Distinctions 101, we effectively tell them they might as well sign up with the other side.

Some of them just might.

Senate Republicans are ready to bring up same-sex marriage as an issue for Supreme Court nominees. Sen. Orrin Hatch says conservatives want to avoid another Roe v. Wade, which is unobjectionable in my mind. I'd like to avoid that, too.

But what does that mean when it comes to the judicial philosophy of a Supreme Court justice? Roe v. Wade is controversial as a matter of politics in large part because it was controversial as a matter of constitutional law. It rests on the right to privacy, something not mentioned in the text of the constitution. That is something that could give reasonable people pause about how judges do their job.

But gay rights would not need to rely on any unarticulated language in the constitution. The equal protection clause is right there in black and white. There is certainly a legitimate question about its precise meaning. State court judges across the country have come to differing conclusions about how to apply it to particular cases. But it is wrong to argue that a ruling in favor of gay rights under the equal protection clause is the same kind of constitutional overreach as a ruling in favor of a right to abortion under the right to privacy.

That would be a fair discussion for the Senate to have. But I'm skeptical that there is much desire to have a fair discussion of equal protection when we're so used to the pedestrian discussion of "judicial activism" that Roe has carved into the landscape. Equal protection was not invented by judges, it was created by constitutional amendment. Gay equality is not controversial because of a flawed constitutional theory - after all, there is no Supreme Court ruling on gay relationships yet.

Any preemptive (and, in my opinion, distracting) confirmation arguments about homosexuality should be redirected to the genuine issue - not marriage but the constitution's command of equal treatment for all citizens. That, after all, is exactly what we have a Supreme Court for, if you take seriously the words carved into its front entrance: "Equal Justice Under Law."

Update: May 20

California voters on May 19 soundly defeated all of the tax hike initiatives that Equality California, with its unerring sense of wrong-headedness, had invested its "brand" in promoting. Looks like EQCA's involvement is the kiss of death for whatever position it favors on statewide ballot initatives.

California voters did pass an initiative to punish their spendthrift legislators by limiting their pay increases, but leaders of the EQCA alliance groups will probably give themselves even bigger raises in 2010 than they did after the passage of anti-gay Prop. 8.
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Equality California, the statewide alliance that so badly mismanaged efforts to defeat the Golden State's gay-marriage-banning Prop 8 last November, has a new cause. My partner just received an email from the group urging him to vote for all six California budget propositions placed on the ballot by Schwarzenegger and Democratic legislators to "raise revenue" in the wake of a severe budget crisis - a crisis caused in no small measure by huge spending increases over the past few years under said governor and legislators. From a Wall Street Journal op-ed:

Several months ago, lawmakers were forced to tackle a $42 billion deficit that stems from a 35% general fund spending increase since Republican Arnold Schwarzenegger replaced Mr. Davis. The deficit is $4 billion larger than the one that helped end Mr. Davis's political career. After wrangling over what to do, the governor and legislature struck a deal that raises income and sales taxes as well as car-registration fees. In all, the tax increases will cost Californians some $13 billion over the next three years.

The lawmakers punted the decision to enact much of the budget deal to voters in six ballot initiatives - most of which are behind in the polls by nine percentage points or more.

EQCA says it is taking no official position on the propositions but is passing along a very professionally designed argument with the "unanimous recommendations of our LGBT legislators." (They don't say how many of the four LGBT legislators are L, G, B, or T.)

Taxpayer groups oppose Prop. 1A, in particular. So why are gay-rights groups jumping on the Establishment tax-hike bandwagon? Fealty to state employee unions, in large measure. Left foot first, friends. Left foot first.

Andrew Sullivan, onetime Obama mega-fan, has credibility when he ticks off the reasons for disappointment with the President's apparent reluctance to move ahead, not just on some or most gay issues, but on every gay issue.

He might have added the Obama Administration's underwhelming support for AIDS programs, detailed here by Bob Roehr. Money quote:

President Barack Obama has proposed a trickle of new money for HIV in his fiscal year 2010 budget released May 7. That is far short of keeping pace with the growing demand for already inadequate services. ... The budget may have been the straw that broke the camel's back of the AIDS community's optimism about the new administration.

Unlike some, I've always seen Obama as a talented politician first and foremost, and so it's no surprise to see him behave politically. Two combat engagements and the most dangerous economic crisis since 1929 are not the time to put social issues on the front burner, and now he has that awkward business about torture to deal with. Even I, however, expected something, if only to show he's Mr. Change.

At least we can savor White House spokesman Robert Gibbs's effort to non-explain why Obama doesn't suspend the military's discharges of gay Arabic linguists.