On 8

When Perry v. Schwarzenegger, the since-retitled Prop 8 case, went to trial, it was videotaped.  Cameras in the courtroom is a vaguely controversial topic in legal and judicial circles, but the Ninth Circuit Court of Appeals established a pilot program for courtrooms in its jurisdiction that allowed for the video recording of cases, presumably those that were interesting (a rare occurrence as trials in general are duller than dull), which would be available to the public.

This kind of program is not without precedent; oral arguments from the Ninth and Second Circuit Courts of Appeals are available on C-SPAN (and geek that I am, I have watched some), but generally cameras in the courtroom are taboo.  The Supreme Court is the course the biggest culprit in keeping the courtroom free of video recordings, and the Justices steadfastly (and apparently unanimously) refuse to allow video cameras in even when Congress demands that they do.  David Souter famously told the Judiciary Committee they could have video cameras in the Supreme Court when they rolled them in over his dead body.  Personally, I am surprised that the Supreme Court even allows its oral arguments to be audio recorded, but I suppose it’s been there long enough (since Earl Warren’s day) that it’s now safe.  You can access the recordings if you are so inclined, and again, geek that I am, I have.

Therefore, it came as no surprise when the Supreme Court, possibly afraid that people might want to see how justice gets done in this country, granted the request from the Prop 8 proponents to keep the tapes hidden.  Now, it is true that there is nothing in the Constitution that mandates that trials and arguments must be recorded.  Nevertheless, it violates the spirit of the constitutional mandate for open proceedings to deny video cameras in the courtroom.  In the Internet Age, the only way to watch a trial is still to physically go to the courtroom. Unless you are a criminal law attorney or a judge, you probably cannot do that very often.  And if the case draws massive media attention, you have almost no shot of getting in.

Which brings us to 8.  Because the Perry tapes have been sealed away, possibly forever, Dustin Lance Black, the screenwriter of Milk fame, wrote a play about the Perry trial with dialogue largely taken from the trial transcripts.  The first reading was in New York and a second reading was recently staged in Los Angeles and was streamed live over the Internet.  Ergo, more people have “watched” the trial than would have done so had the actual recordings been made publicly available.  You can still watch it at a variety of sites, and I did so at Slate8 is a work of political theater, and this reading (which was rewritten a bit after the first) was performed by, among others, Brad Pitt, George Clooney, the recently out Matt Bomer, three cast members from Glee, Martin Sheen, George Takei, John C. Reilly, Christine Lahti, Kevin Bacon, and Jamie Lee Curtis.  Rob Reiner directed it, and no doubt the spirits of Carroll O’Connor, Gregory Peck, and Elizabeth Taylor blessed the show.


First a word about my post title “On 8.”  I originally thought to call this post “No On 8,” which was also the slogan of the LGBT rights movement during the Prop 8 referendum.  It also would have hinted at some of the reservations I had watching the reading.  On the other hand, as a title, it is glib, which I did not want to be regardless of my feelings about 8.

I hate being the gay contrarian, but more than that I hate pretending.  I hate pretending that something is good just because I agree with the fundamental message.  I hate the idea that I have to go along with the group think and love Glee or Will & Grace (or pretend to) when both are terrible.  I especially hate the idea that I should be thankful to those shows because of this flawed idea that since that they have aired, straight people accept us more.  (The cause and effect in that thinking is backwards.  Those shows exist because homosexuality is more accepted in society not the other way around.)  I cling to the stubborn idea that good gay-themed entertainment is infinitely better than mediocre fare regardless of message or popularity.

I did not love 8.  The acting was generally very good, although criticizing acting in a hastily organized, staged reading misses the point.  This was not a performance, and there really was no rehearsal time (this reading was really just a dressed up fundraiser for Americans for Equal Rights).  Only Martin Sheen was a problem; he has gotten even hammier since his West Wing days.  For me at least, it was difficult to suspend disbelief because I have heard the real Ted Olsen argue cases, and he is quite a different personality.  Olsen is also very level and calm while Sheen over-emoted to the point of turning red.  Ted Olsen is many things, but Jed Bartlett he is not.  While Sheen tried to turn Olsen’s closing argument into a monologue worthy of King Lear, in my mind I heard Olsen speaking them, and that was more affecting.   Dignity trumps fireworks every time.  (On the other hand, John C. Reilly’s turn as the loathsome boob David Blankenhorn was incredibly funny, and although he too overdid it, in the context of the actual complete humiliation that David Bois handed to Blankenhorn at trial, it worked.)


I admit that I am a very bad gay in that I don’t worship theater, so take my opinions of the show with that grain of salt.  There is something so artificial about theater that doesn’t exist in movies, and I really have a tough time with the artifice of plays.  It’s my problem not 8‘s, but it did affect my enjoyment.

I wish a lawyer, or someone at least familiar with a courtroom, had written this play.  This is not meant to disparage Dustin Lance Black.  I respect his work; I loved Milk and cried at the end.  But a trial has its own rhythms, its own patterns, its own language, and I don’t think Black understood that.  (No doubt there are a zillion lawyers out there who disagree with me.)  There was something about the temporal inconsistency of the script that was just off, no doubt reflecting how hard it is to turn a multi-day, multi-stage trial into an hour and a half theatrical work.  I wonder if a non-lawyer who has neither watched trials and oral arguments nor read courtroom transcripts would feel that disruption.  Once again, perhaps this is my problem and not Black’s.

What bothered me the most though was the script’s focus on the Perry plaintiffs.  In particular, the focus on Kris Perry and Sandy Stier and the adorable moppets who are their sons felt incredibly fake.  Or worse than fake, it felt like propaganda.  It’s hard to write this because I am writing about real people who are doing something incredibly brave (and risky), and whom in real life I admire very much.  But even though they are the plaintiffs, Perry is not about Kris Perry, Sandy Stier, Jeff Zarrillo, and Paul Katami.  They are merely the vehicles.  Just as in Lawrence v. Texas, Perry is about every gay and lesbian person in the United States regardless of whether they plan on marrying someone of the same sex.  The theatrical device of an everyman (in this case the four plaintiffs) just doesn’t work here.  The trial spoke for itself.

8 is too ambitious for its own good.  The original purpose of the production was twofold: (1) to find a way to transmit the visuals of the Perry trial since the video tapes have been sealed; and (2) to raise money for Americans for Equal Rights (Black is a founding board member of AFER).  Now it appears that there is a third purpose: to be made into a television movie for HBO that will win acclaim and Emmys by the truckload.  That self-conscious ambition hurts 8 on an artistic level.


Maybe the problem is that 8 is not a compelling piece of theater because dramatically it is lacking.  I am not talking about the use of trial transcripts because the most effective parts of the show were from the trial and the least effective parts were when the play stayed from the transcript.  The problem is that in a battle between rights and wrong, which is what 8 is ultimately about, there is no compelling villain.  From a political perspective this makes sense, why humanize your enemy?  Because 8 is ultimately political, if cannot afford to make a villain someone the audience would secretly like.  From a dramatic point of view though, this is deadly.  What is Othello without Iago, Angels in America without Roy Cohn, or Paradise Lost without Satan?

Frankly, who would the gay rights movement want to build up?  Those who are opposed to the LGBT rights movement–James Dobson, Randall Terry, Tony Perkins, Pat Robertson, the evangelicals, the Catholic and Mormon Church hierarchies, the national Republican party, etc.–what do they offer?  What good does humanizing them do?  Nothing really.  From a dramatic point of view the only effective villain is Maggie Gallagher.  Ever since I read the Salon profile of her, I have been both fascinated and horrified.  Maggie, unlike the rest of he ilk, is intelligent, and surprisingly enough given how horrible she is, appears to have no actual animosity toward gay people.  Yet Maggie has completely forsaken empathy and humanity in favor of blind devotion to a cause.

It was not until I saw Jane Lynch portray Maggie in 8 with fire-breathing panache that I realized that Maggie is a 21st century Louise Day Hicks.  Hicks was a Boston politician, and the chairwoman of the all-powerful Boston School Committee in the 1960’s.  Under her leadership, the Committee resisted integrating the deeply and unfairly segregated Boston inner-city schools, a resistance that only intensified after the Garrity decision.

When the Garrity decision was announced, Hicks founded ROAR (“Restore Our Alienated Rights”), the primal scream of rage against integration from the Boston Irish.  Unsurprisingly–and with good reason–Hicks and ROAR became the face of Boston racism.  The irony though is that it is unclear if Hicks herself was racist.  J. Anthony Lukas, in his masterful book Common Ground, the classic book about school integration and race relations in Boston, suggests that Hicks was not racist (as opposed to George Wallace or Hicks’s allies at ROAR) so much as a consummate politician who knew her constituency and channeled their rage for her own political gain.

And that to me is more about who Maggie Gallagher is.  She is not a second Anita Bryant so much as a second Louise Day Hicks, someone who sold her soul for politics.


There is one final problem with 8, and that is the self-congratulatory nature of the people behind it.  I watched Rob Reiner and Dustin Lance Black say that this is the final leg of the race that is the civil rights movement, and my jaw dropped in shock.  This speaks to an incredible myopia, which is I am pretty sure is not how AFER sees the struggle.  I wonder if AFER will still exist when the marriage fight is won.  That isn’t the last hurdle even if it is made out to be.  Civil rights is an ongoing struggle that will change and mutate with each generation.

Perry is not the end, but rather the end of the beginning.  For years now the groundwork has been laid; everything up until now has been prologue for the fights that are to come.  It was important and necessary, but it was merely the start.  This year, marriage laws passed by Washington and Maryland will be up for referendum; activists in Maine have gotten marriage onto the ballot in that state; New Jersey’s governor has vetoed a same-sex marriage bill there, and his veto needs to be overturned; preparations must be made in California in case the Supreme Court overturns Perry; the victory in New Hampshire was not close, but it is still no reason to relax; there is movement to try to get the same-sex marriage ban in Ohio removed; and bans on same-sex marriage are up for public referendum in Minnesota and North Carolina.  This is with the backdrop of the DOMA cases working their way through the courts, a bill to repeal DOMA in the Senate (which won’t pass a filibuster and won’t get approval from the House), the fights for ENDA, the Student Non-Discrimination Act, housing equality, immigration reform that treats same-sex couples fairly, transgender rights, benefits for the same-sex spouses of federal employees, and overturning same-sex marriage bans in the majority of states.

No, we are not in the last leg.  The fight has just intensified.  The Great Work begins.

Um, yay?

Colombia’s Constitutional Court ruled that the legislature must pass a same-sex marriage bill within two years.  If the legislature fails to act, same-sex couples will be able to formalize their unions before a notary public or a court.  This is a momentous step, although it seems like the LGBT community of Colombia actually feels let down.  CNN reports that activists see it as a victory.

The Colombian legislature is split between allies and bigots.  From an American point of view, the Constitutional Court took a tremendously positive step, but I can also see why the Colombian LGBT community is unhappy.  It leaves the specifics to a legislature that will more likely than not drag its feet, and that has, multiple times in the past, rejected same-sex marriage bills. There is, as expected, opposition in the government.

It is unclear what will happen.  The Court ruled that same-sex couples in de facto unions constituted a family.  However, the Court did not necessarily say the legislature had to call it marriage.  Nor did the Court extend marriage to same-sex couples as advocates had hoped.  In theory the legislature could pass something like civil unions, although I am not an expert in Colombian law, so I cannot speak to the available options.

More on this story as it develops (no doubt at a snail’s pace.)  In the meantime, I understand Uruguay is on the verge of passing a same-sex marriage bill.

Same-Sex Marriage In New York: Courts Won’t Repeal It

This morning, as is my habit, I checked Towleroad to see what LGBT, LGBT-related, and homophobic news made the headlines.  More on the tragedy of Amy Winehouse’s death, the continuing saga of Dan Choi‘s lonely descent into insanity, and happy scenes from New York, where same-sex couples may now legally marry.

Of course news of happy gay and lesbian couples cannot go without an answer, and sure enough, the homophobes are in the news again.  A group calling itself “New Yorkers For Constitutional Freedom” (they always invoke the Constitution, but don’t actually understand it) has filed a lawsuit against the New York State Senate, the New York Department of Health, and the New York Attorney General.  The claim is that, well I couldn’t really follow the claims because they are nonsensical, but it has something to do with the state legislature not following its own Open Meeting Law and also Marriage Equality was unconstitutional because the legislators were bought off.  At its root, the claim can be summed up as “legislators wouldn’t talk to us before passing the bill, therefore the entire bill is unconstitutional.”

I could go through the complaint point-by-point and demolish it.  It’s very weak, and no court will strike down the Marriage Equality Law, especially for this tripe.  Chances are this case will not even make the state’s highest court,* let alone the United States Supreme Court (the plaintiffs included a federal claim, just in case.)

That this group has turned to the courts should put to bed this notion put forward by the homophobes that activist, unelected judges destroy our liberties by taking away the decision from an elected legislature who are the voice of the people.  Now that a legislature has spoken and passed a law, to whom do these people turn?  The courts.  (When both courts and legislatures speak, then these groups want a popular referendum, because “the people should decide.”  Can’t wait to see what comes next.)

There are so many reasons why this is a futile case, and more than futile, it is a waste of time and money.  No court will ever step in and interfere with the way a legislative body functions (or does not function) unless there is a legitimate constitutional issue involved.  Just as the US Supreme Court will never take on the US  Senate’s filibuster, the New York Court of Appeals will not touch the question of whether the New York Senate acted according to its own rules. Telling the other two branches of government how to function is the surest way for a court to lose its power.  Courts are not law enforcement agencies; they will not overturn laws because the process may or may not have been a Madisonian ideal of republican governance.

The complaints that these legislators were bought off is also going to be dismissed out of hand.  At its heart, what these homophobes are arguing before the court is that the state senators were lobbied by interest groups (and by the Governor and the Mayor of New York), which is somehow unconstitutional.  This of course would mean that the entire legislative process as it has developed cannot exist.  This means that every law the New York Legislature has ever passed is unconstitutional.  We may all hate lobbying (for the other side, of course), but it is most definitely legal and constitutional.  This claim is especially hypocritical because what the plaintiffs essentially say is, “Lobbying is unconstitutional except for the lobbying that we would have done, had the legislators listened to us.”  Most judges are capable of reading between the lines.

I am no expert on New York law, but I would question whether the plaintiffs actually have any kind of standing to bring this suit.  In legal terms, standing means that a person has been harmed and therefore has the right to sue for redress.  If there is no harm or potential for harm, you don’t get to sue.  Standing is a court-created doctrine, so every jurisdiction has its own quirks with regard to standing.  However, reading over the case, I am not exactly sure how these plaintiffs have been harmed.  I’m not sure they know.  Their only claim of harm is that the Marriage Equality law changed the definition of marriage.  This is not harm, it does not affect them in any way.  (There is a free speech claim thrown in there too, but it is weak to the point of not making any sense.)  These plaintiffs claim that the only way to fix this nebulous and undefined harm is to repeal the entire Marriage Equality Act, which is like shooting a mosquito with a bazooka. Courts hate overly broad solutions.

This is a frivolous case.  The lawyers who represent these plaintiffs are obviously hate mongers, but they are also either very bad lawyers or intolerably stupid people.  The truth is they don’t expect to win this case.  Look no further than what happened when similar people tried something similar after Washington, DC passed a marriage equality law.  This is not about repealing same-sex marriage through the courts; it is a huge fundraising effort.  This is a way for these vile plaintiffs to line their own pockets and the pockets of their hateful organization.  They are praying on people’s bigotry and fear, and no doubt there are people only too happy to let them.

The only way to overturn the law is to get the legislature to overturn it or pass a state constitutional amendment banning same-sex marriage (which will create its own set of legal issues like in California.)  The courts will never ever overturn a law if it is not barred by the constitution, no matter what the judges’ own personal tastes may be.

While this is going on, other hates mongers including NOM and the ADF are looking for New York state clerks who lost or will lose their jobs because they refuse to sign same-sex marriage certificates.  This law suit intends to overturn the Marriage Equality Law on First Amendment Free Exercise grounds.  This too will fail.  The Free Exercise clause is hardly used because it is pretty risky grounds for winning a case.  The courts have been clear that while the state (or your employer) cannot discriminate against you for your religion, your religion cannot be an excuse for not doing your job.  In this case, it is a clerk’s job to sign licenses for marriages recognized by New York law.  If a clerk cannot do that, then he or she needs a new job.  He or she is an agent of the state and must follow the law.

This case is a distraction.  It’s a dying dragon spewing its poisonous filth one last time.  It is doomed to fail.


* Most states’ highest courts are called the Supreme Court, but not New York.  Their lowest (trial) court is the Supreme Court and the highest court is the Court of Appeals.  It’s very confusing for the new law student.

Paul Clement, John W. Davis, And Legal Morality

It was no surprise when the House of Representatives defended DOMA.  It was surprising that a big firm like King & Spalding (K&S) took the case.  Despite how horrible Corporate America can be, as a whole it is generally more progressive in attitude than the United States government and many states.  There are many reasons for this.  Corporations are responsible to shareholders not constituents; shareholders care about money, constituents care about social issues.

Although corporations may be myopic when it comes to short-term costs like environmental protections, they see far into the future when it comes to social issues because of the money that can be generated by tapping into affluent communities with expandable incomes (i.e. large segments of the LGBT community.) Conversely, LGBT-led boycotts have been quite effective since the 1970’s when Florida orange growers learned the hard way that aligning with Anita Bryant was bad for business.  Meanwhile the Southern Baptists failed when they boycotted of Disney for being too gay-friendly.

Furthermore, in the decades since Stonewall, more and more LGBT people have come out, and it turns out that they too are employees.  Corporations often want to keep employees happy, particularly those in high-powered positions.  Ergo, it is makes sense that Corporate America would as a whole be more gay-friendly than a government-run by politicians who need to win the bigot vote.

Big law firms like K&S are very much a part of Corporate America.  These firms tend to be gay friendly because there are gay lawyers who work there and gay law students who aspire to work there.  This is especially true in the major legal markets: New York, Los Angeles, San Francisco, Chicago, and Washington, DC.  Furthermore, these law firms depend on corporations to stay in business–corporations that want to appear as gay-friendly as possible.  That is why I was surprised when K&S took the case.  Representing DOMA would surely bring a fallout, not just externally, but internally as well.  The fallout was even more inevitable when it was leaked that all employees of K&S, regardless of whether they worked on the case or not, were unable to participate in any outside anti-DOMA activities.  That clause was unusual to say the least.

But as surprised as I was when K&S took the case, I am flat-out shocked that they withdrew today.  I cannot say I am displeased, but it is most certainly a self-inflicted wound.  It flies in the face of legal ethics.  If K&S didn’t want the case, they shouldn’t have taken it. Furthermore, while the LGBT community and its allies are cheering, the right-wing is fuming and calling this a new McCarthyism (ignoring their own support for the McCarthyism of the Tea Party, but that is neither here nor there.)  Finally, as a result of the firm’s change of heart, Paul Clement, the K&S attorney working on the case, quit K&S and joined Bancroft PLLC, a DC boutique firm.

The loss of Paul Clement is substantial for K&S.  Clement is a former Solicitor General, the government attorney who argues the position of the United States before the Supreme Court.  (Actually there is an office of about 20 attorneys who argue such cases, but the Solicitor General leads the office and argues the most high-profile of these cases.)  K&S hired Clement to build a competitive appellate and Supreme Court practice.  Very few private attorneys argue regularly before the Supreme Court; Clement will be one of them no matter where he works.  Now, not only has K&S lost Clement, it lost credibility before both court and client.

Clement wrote in his resignation letter:

My resignation is … prompted by the firm’s decision to withdraw as counsel for the Bipartisan Legal Advisory Group of the United States House of Representatives in defense of Section III of the Defense of Marriage Act. To be clear, I take this step not because of strongly held views about this statute. My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as Solicitor General.

Instead, I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do.

Perhaps Clement secretly believes that DOMA is a terrible law that should be struck down.  Or maybe he believes it is a good law (Although it is telling that the firm he left for is not another large firm, but rather a small boutique made up lawyers who mostly served in the George W. Bush-era Justice Department.)   Legal protocol suggests that by seeing the DOMA case through to the end, Clement is acting properly.

The comparisons to the Guantanamo cases that some on the right are suggesting however, are misguided.  When the attorneys at big law firms took the Guantanamo cases, what they were doing was making sure that the law was applied equally.  In other words, the basic assumption was that the Constitution grants the right to habeas corpus and due process and the government was not properly applying the law.

In the DOMA case, the issue is whether the law itself is constitutional.  The Justice Department says no.  Basic morality says no.  And it would appear that the large law firms (and a substantial plurality if not majority of the legal community) also say no.  The proper comparison is less with Guantanamo cases than with the NAACP’s Jim Crow challenges of the 1930’s, 40’s, and 50’s.  And that brings us to John W. Davis.

Like Clement, Davis was a former Solicitor General.  Unlike Clement, Davis was a politician and the Democratic Presidential nominee in 1924 (he lost to Calvin Coolidge.)  Clement is a brilliant oral advocate, one of the finest, if not the finest, of his generation.  Davis was one of the greatest of all time.  He argued 140 cases before the Supreme Court.  Very few have argued more (Daniel Webster comes to mind.)

After he left government, Davis became a corporate lawyer in New York, and the law firm he joined still bears his name.  Davis continued to argue before the Supreme Court, many of his cases against the New Deal.  However, his greatest claim to fame, or more perhaps infamy, was his representation of South Carolina in Briggs v. Elliott, one of the five cases that came to be collectively known as Brown v. Board of Education.  Davis, a Southern Democrat by birth, let it be known that he believed segregation was morally and legally correct.  He passionately argued this position (he allegedly teared up during his oral argument), and believed he had won, even though his opponent was Thurgood Marshall and the Supreme Court had been consistently struck down segregation laws.

The Davis comparison is apt because defending DOMA is akin to defending segregation.  Both are unconstitutional and immoral forms of discrimination dressed in the trappings of law.  Only politics kept Jim Crow laws in effect, and only politics keep DOMA alive now.  Just as we look in horror at the Jim Crow South, so too will future generations look in horror at the homophobia of this era.

This is the situation that Clement and K&S  found themselves in.  Lawyer and firm are both aware of history and legacy.  The tide is already turning against the foes of gay marriage whether those dinosaurs like it or not.  Clement and K&S chose the wrong side of history, but K&S blanched and backed down.  Clement did not, and I imagine that he will be remembered as John W. Davis is: a great lawyer who made a catastrophic decision.

Thoughts On An Aging Judiciary

A few years ago, Chief Justice John Roberts railed against what he considered the greatest constitutional crisis facing the judiciary.  When one thinks about constitutional crises facing the judiciary, several things come to mind, including but not limited to the following: (1) an overreaching Congress that tries to shut the judiciary out its traditional oversight duties; (2) an Executive Branch that does not heed judicial decisions and defies the judiciary at every turn; (3) state governments that do not follow federal judicial orders; (4) random impeachments of federal judges for political rather than judicial reasons; (4) an American public that rises up in protest against the judiciary (spurred on by politicians with dubious motives) thereby depriving the courts of the legitimacy they need to survive; (5) rising vacancies on the federal bench due to Senate filibusters combined with an increasing caseload.

What the Chief Justice was referring to though was an alleged judicial pay crisis; he believed that federal judges were not being paid enough.

A quick Constitutional lesson.  There are two main types of federal courts–Article I courts and Article III courts (there are also Article IV courts and may also theoretically be Article II courts, but that is a different post for a different time and not really important now.)  Article I courts are created by Congress through Article I of the Constitution.  Article III courts are created by Congress through Article III of the Constitution.  That does not help much, I know, but stick with me.  Here is the difference.  Article I is the section of the Constitution about Congress, and Article III is the section about the federal courts in general and the Supreme Court in particular.

Article I courts are usually specialized (e.g. bankruptcy courts, military courts, the U.S. Tax Court).  Congress has the freedom to deal with these courts as it wishes.  Judges’ terms are limited to a certain amount of time.  There is no life tenure, and the judges’ salaries may be reduced.  In cases of life, liberty, or property, the rights protected by due process, Article I court decisions may be appealed.

Article III courts are what we normally think of when we think of the federal judiciary: the District (trial) Courts, the Circuit Courts of Appeals, and of course, the Supreme Court (also the Court of International Trade.)  Article III courts are the final word on all cases involving life, liberty, and property.  The judges of Article III courts cannot be fired and Congress is constitutionally forbidden from decreasing their salaries.  The only way to remove these judges is through the impeachment process–and that is very rare, although it did just recently happen.  The reason for such strict protections is clear–if judges are not dependent on Congress for their salary nor their continued employment, then they are more free to be independent-minded.  Constitutional battles always happen in Article III courts, and Article III judges are the ones who face constitutional crises.

Thus endeth the constitutional law lesson.

I have zero sympathy for the Chief Justice’s “crisis”, and there are two reasons why.  Reason #1:  Federal judges are paid a tremendous amount of money–it’s a six figure salary, and Supreme Court justices (who make the most) are paid over $200,000 per year.  They also receive generous pensions after they step down.  What the federal judges are angry about, or were angry about before the Recession hit (they may still be, but I have not heard anything about it lately), was that they were being paid significantly less than firm lawyers, and many of them came from large firms.  Furthermore, the judges see their clerks get firm jobs that pay far more than the judges’ own salaries.

Reason #2:  I firmly believe that those who go into public service should be paid less, especially when the position is one that involves power, public policy, and lawmaking.  Money should be the sacrifice for power.  While one can argue that my belief limits elected office to the wealthy (and I am prepared to debate that), federal judges are selected not elected–and selected for their connections not their personal wealth.  While it is sad that judges cannot prevent their college bound children from taking out loans in order to attend private universities, why should their children have advantages that the butcher’s children or the steelworker’s children do not?  If judges cannot handle that sacrifice, then by all means they should go into private practice.

The Chief Justice and every other judge who speaks about this calls this theoretical exodus of federal judges a brain-drain of the judiciary (“our best and brightest won’t want to be judges”).  First, this is not true because while there have been some resignations, it is not nearly as widespread as the Chief Justice would have Congress believe.  Second, this reeks of elitism.  The federal judiciary is made up of a disproportionate number of graduates of the elite law schools.  Eight of the nine members of the current Supreme Court graduated from either Harvard Law School or Yale Law School (the one lone holdout, Ruth Bader Ginsburg, went to Harvard for two years but transferred to Columbia.)  Law is an extremely class/status conscious profession, and there is a belief that if you did not graduate near the top of your class from a top tier law school, you are basically worthless as a human being.

So no, I have no sympathy for the judges.  If they want to retire en masse, then fill their spots with people who would be grateful for both the jobs and the salaries.   There is no lack of applicants.

There is actually a constitutional crisis in the judiciary, in fact there are two.  One of them I briefly mentioned already: the federal caseload keeps rising but so do the vacancies on the federal bench. (Ironically the Supreme Court docket is shrinking.)  Yet because of the dysfunctional mess that is the Senate, more federal judges are not being confirmed, which is very short-sighted.  The vast majority of cases that appear before the federal courts are not major constitutional/social issues, particularly at the trial level.  While The appellate courts are a little bit different (and the Supreme Court is very different), the Senate has completely muddled the process to the point and the federal courts have been severely hindered.

The other major problem is that the judiciary does not police itself very well.  Because impeachment is the sole way to remove an Article III judge from the federal bench, these are effectively lifetime positions.  They cannot be fired; they have no bosses.  Corruption is not generally a problem (it is exceedingly rare), but the federal bench as a whole is getting older and older.  Judges generally have huge egos (think lawyers squared), and find it difficult to admit their fallibility and their mortality.  And never will they admit possible senility.  This article in Slate, but written for ProPublica, is a great piece about how exactly the judiciary is facing this problem.  Supreme Court justices have a history of serving long past what should be an expiration date (e.g. Stephen Fields, Oliver Wendell Holmes, Thurgood Marshall), but the federal judiciary as a whole faces the same problem.

There are some judges who are trying hard to alleviate the situation, but there needs to be far more policing among the federal judiciary in order to prevent a real constitutional crisis, not the one that the judges imagine for themselves.

Music Playing While I Wrote This: Oscar Peterson Trio “Nuages”; Nina Simone “Since I Fell For You”; Science Friday podcast.

Illinois: Gay Rights and Forward Momentum

I. Overview

This week, the state legislature of Illinois enacted civil unions over the objections of the Catholic Church and the rest of the anti-gay bigots such as the National Organization for Marriage.  As of this posting, the bill has yet to be signed by Illinois Governor Pat Quinn, but Quinn is an LGBT ally, and has promised to sign the bill in the new year (supposedly in a big ceremony.)  First and foremost let me say that I really wish Quinn would sign the bill right away.  I understand that civil unions do not go into effect until June, but this kind of legislation needs to be signed right away.  If somehow this legislation were to be vetoed, the Illinois legislature would not have the votes to overturn the veto particularly when the new legislature comes into session.

Two common thoughts have arisen in the LGBT community about this bill.  The first is that it a great step forward.  The second is that civil unions are not enough and at this point the only real victory is marriage.  I would say that both of these are reactions correct and, despite being near opposite opinions, are actually quite consistent.  Civil unions, in a place where there had previously been no LGBT rights, is a great victory.  At the same time, civil unions are second class because they are viewed as such.  This is especially apparent in Illinois where civil unions are open to straight couples.  This demonstrates that marriage is being deliberately withheld from gay couples despite the increased rights of civil unions.  The underlying message is “Marriage is Different.”

Moreover, the marriage situation for gay couples is tricky.  The recognition of gay couples comes from the states.  Federal protections offered to (and forced upon) married straight couples are not available to gay couples, no matter how the individual state defines the relationship.  The reason for this is the Defense of Marriage Act, which states that (1) states do not have to recognize marriages/civil unions performed in other states (this is blatantly unconstitutional–see Article IV); and (2) the federal government does not have to recognize such unions.  The first part of DOMA has yet  to be challenged.  Gay rights advocates are scared of the current Supreme Court and are (legitimately) afraid that a loss would set the movement back decades.  A challenge to the second part is making its way through the federal courts.  Recently a federal trial judge in New England found that this portion of DOMA is unconstitutional.  Eventually the Supreme Court will hear this case (Gill v. OPM).  Although it is a strong case, from this point on there are no guarantees.  The path of gay rights has never been a particularly easy one.

II.  Gay Rights and the Courts

Gay marriage first arrived into the American legal world through a 1972 case out of Minnesota called Baker v. Nelson.  The gay plaintiffs were denied a marriage license.  The plaintiffs appealed to the United States Supreme Court on Equal Protection grounds.  The Court did not hear the case and dismissed it in a one line opinion that said there was no federal question.  For non-lawyers, understand that this only applies to federal law.  States could still decide these issues for themselves on their own constitutions and laws.  Nearly 40 years later, Baker is a very dubious case.  While Baker theoretically binds all lower federal courts (and state courts hearing federal claims), it is unclear exactly what Baker‘s status is.  The Court never issued any substantial opinion or clarification, and the law has changed significantly since 1972.

On a federal level, the next major defeat came in 1986 when the Supreme Court announced its decision in Bowers v. Hardwick.  If Baker was a loss for gay rights, Bowers was a crushing disaster.  Michael Hardwick was a gay man who, long story short, was arrested in his bedroom when he was found there engaging in consensual oral sex with another man.  Hardwick lived in Atlanta, and Georgia at the time had an anti-sodomy law (referring to anal and oral sex.)  The case went to the Supreme Court, and in a horrific 5-4 decision the Court majority found the Georgia law was constitutional.  The majority’s underlying message was this was only constitutional with regard to gay people.  In other words, gays were not entitled to the same privacy protections as straight people.  This ruling came during the height of the AIDS crisis.

The first victory for marriage equality came in Hawaii in 1993.  Gay rights advocates, inspired by the NAACP’s years-long strategy in the successful dismantling of segregation, wanted to end anti-gay marriage laws on a gradual basis.  Unlike the NAACP, gay rights advocates chose to do battle in state courts.  The reasons for this were clear.  Whereas the NAACP had an ally in the Supreme Court, gay rights advocates has a hostile majority waiting for them.  The gay rights advocates instead brought suit in states that had a strong judicial tradition of expansive equal protection.  That first victory came from the Supreme Court of Hawaii in a case called Baehr v. Lewin.  The Court held that denying marriage licenses to gay couples was essentially impermissible gender discrimination and struck down the law.

Unfortunately, Baehr proved a Pyrrhic victory.  Hawaii changed its constitution to allow the Legislature to ban same-sex marriage (and the Legislature did.)  The real damage though came from Congress, which, in response to Baehr, passed DOMA.  President Clinton signed it into law.  A host of states passed their own laws and constitutional amendments also banning same-sex marriage.  Some of the more venal states passed amendments that also banned civil unions.

In response to Hawaii, gay rights advocates realized they needed to alter their strategy.  It was not enough to find states with expansive traditions of equal protection.  They needed to find states which also had constitutions that were difficult to amend.  The new battleground was New England, specifically Vermont and Massachusetts.

In 1996, the Supreme Court started to backtrack on its anti-gay stance in Romer v. Evans.  In the ten years there had been a significant change of personnel on the Court, and in particular two Justices in the Bowers majority, Lewis Powell and Byron White, were replaced by Anthony Kennedy and Ruth Bader Ginsburg respectively.  In Romer, the Court struck down a state constitutional amendment in Colorado that would have prevented any protections for LGBT citizens by the executive, legislative, or judicial branches on either a state or municipal level.  For the first time an anti-gay law had gone too far and had too much animus; the new Supreme Court majority pushed back.

In 1999, victory came out of Vermont.  The Vermont Supreme Court held in Baker v. Vermont that the state had to offer the rights and responsibilities of civil marriage to same-sex couples.  The Vermont legislature and then Governor Howard Dean were squeamish about extending marriage to same-sex couples.  In response to the Court’s decision, Vermont created an alternate structure called civil unions.

III.  Lawrence v. Texas

In June 2003, the Supreme Court released its most significant gay rights ruling to date: Lawrence v. Texas.  The Court’s majority, in no uncertain terms (and occasionally poetic language) ruled that Bowers was wrong and had always been wrong.  What consenting adults did in the privacy of their own homes was their own business.  In other words, the Lawrence Court restored the privacy rights to gays and lesbians that the Bowers Court said did not exist.

As important as Lawrence is, it is also a deeply flawed decision. The Lawrence majority offered no clear indication for the lower courts with regard to how to deal with gay rights cases; this was undoubtedly deliberate.  The case was decided on Due Process grounds not on Equal Protection grounds.  In layman’s terms the Supreme Court majority said that the act of gay sodomy was protected; the majority said nothing about the legal status of gay people.  When a law discriminates, by design or by choice, against a protected group (race, nationality, and gender are the big three), the law is automatically suspect and unless there is a really (really really) good reason for the law, the courts will strike it down as unconstitutional.  In deciding Lawrence as it did–as a “protected liberty” case–the majority avoided the question about whether the LGBT community was equally protected by the Constitution.

Why did the Court do this?  I have a theory that I believe is correct but cannot say for certain.  Courts do not like to make law.  Even with a direct constitutional challenge, the courts try to find a way to minimize judicial law making.  In overturning Texas’s sodomy law, the majority made as minimal a decision as possible without upholding the law.  Deciding this case on equal protection grounds would bring a whole slew of new cases that the majority was not ready to deal with.  It does not take a constitutional scholar to realize that same-sex marriage would be at the forefront of these new cases.  The majority saw this and blinked.  Limiting Lawrence to protected liberty (i.e. privacy rights) was the majority’s way of staving off getting involved in the contentious battle of same-sex marriage and further LGBT rights cases.  Nevertheless, not everyone saw Lawrence as merely a privacy decision.  Justice Antonin Scalia, writing in dissent, warned that Lawrence would lead to (judicially imposed) same-sex marriage.  He may be correct; some courts that have since heard LGBT rights cases have looked to Lawrence as guidance even though despite the majority’s trepidation.

One voice on the Supreme Court did advocate for looking at Lawrence as an Equal Protection case.  Justice Sandra Day O’Connor wrote a concurrence that would have held laws that discriminate based on sexual orientation as suspect.  While she left open how strictly a court should look at such laws, gay rights advocates would have had a much more powerful tool in their war against oppression.  The irony is that Justice O’Connor was in the Bowers majority.  What changed?  There are two answers.  The first is nothing changed.  On one level, the Bowers majority and her concurrence in Lawrence are consistent.  Bowers was decided on privacy grounds, and that is how the Lawrence majority overturned Bowers.  O’Connor appears to be saying that while anti-sodomy laws are theoretically permissible, they must be applied equally to gay and straight people.  Since Texas’s law would never (never never!) be applied to a heterosexual coupling, it was unconstitutional.

O’Connor insisted in her concurrence that using an equal protection rubric for sexual orientation would not apply to marriage (unless there was animus behind excluding same-sex couples), but that is not completely honest.  This leads to the second and more likely answer for O’Connor’s concurrence: even Justices change their mind.  Perhaps between 1986 (Bowers) and 1996 (Romer), she encountered more open gays and lesbians–clerks possibly or maybe people in her social circle.  Maybe the education initiatives launched by gay rights advocates made a difference to her somewhere.  Maybe as gay people became more normative, her opinion of gays and lesbians changed.  Around the time Lawrence came before the Supreme Court, there were rumors in the LGBT community that O’Connor deeply regretted her decision in Bowers and wanted to correct it.  Justice Lewis Powell, who was something of a mentor to her, spoke openly about how he would come to regret joining the Bowers majority.  Maybe O’Connor felt that her opinion in Lawrence was a way to right a wrong that she helped to create.  I cannot say for certain, although it makes for an interesting guessing game.

IV.  Gay Marriage Arrives

In 2004, the Massachusetts Supreme Judicial Court released its opinion in Goodridge v. Department of Public Health, and–cliché as it sounds–the legal landscape would never be the same again.  Gay rights advocates (and LGBT people as a whole) won their first total and complete victory.  In a 4-3 decision, the Court said that marriage had to be opened to same-sex couples and civil unions were not an adequate substitute.  The Court gave the Legislature six months to fix the problem or else marriage would automatically go into effect.  Although opponents tried to overturn the Court’s decision, there was too much many gay rights allies in the Massachusetts Legislature (that only grew in the years following Goodridge), and same-sex marriage became a reality.  On a personal note, I went to the celebrations the night Cambridge City Hall started issuing marriage licenses (trust Cambridge to start issuing the licenses before anyone else.)  I have never seen such an expression of joy in my life, and it is a night I will never forget.  It is also a reminder that outside of the Dixie Cups’ “Chapel of Love,” there are not many memorable wedding songs.  Symbolically, it was a very important night.  The day that Massachusetts started issuing marriage licenses to same-sex couples was the 50th anniversary of Brown v. Board of Education.

Immediately following announcement of the Goodridge decision, Gavin Newsom, then-mayor of San Francisco, ordered City Hall to start issuing marriage licenses to same-sex marriages in defiance of state law.  Jason West, the mayor of New Paltz, New York, also defied state law and personally presided over 25 same-sex marriages.  None of these marriages were valid, but as an act of civil disobedience, it was astounding.  However, 2004 was a fraught year in American politics and Newsom and gay marriage were (unfairly) blamed for the reelection of George W. Bush.  That year a whole bunch of states also passed anti same-sex marriage amendments for state constitutions.  Despite the best efforts of Republicans in the White House and Congress, they could not pass a constitutional amendment banning same-sex marriage in the United States–a stark change from the overwhelming Congressional support for DOMA.

V. Conclusion

In the years since 2004, the progress of gay rights has been two steps forward one step back.  In the courts, same-sex marriage advocates were unsuccessful in Washington, New York and Maryland, had more success in New Jersey (civil unions), and total victory in Connecticut and, of all places, Iowa.  The California Supreme Court found the state constitution required same-sex marriage and the Maine Legislature passed a gay marriage bill that was signed into law.  Voters in referenda overruled both the California Supreme Court and the Maine Legislature.  New York, Rhode Island, Maryland, and soon Illinois recognize out-of-state same-sex marriages even if they do not offer same-sex marriage.  Legislatures in Washington, Nevada, Colorado, Wisconsin, Oregon, and Rhode Island offer varying degrees of partnership rights.  New Hampshire, Vermont, and Washington D.C. all enacted gay marriage through their legislative bodies.   Florida’s adoption ban (created following Anita Bryant’s villainous witch hunt) was struck down by the courts, and it is not coming back.  Two very gay-friendly governors were elected in Hawaii and Rhode Island in place of homophobic ones.  Neil Abercrombie of Hawaii said he would sign a civil unions bill when it reached his desk, and Lincoln Chafee of Rhode Island refused to even meet with the bigots from NOM.  Cases challenging DOMA are coming from all sides now, although their success is less certain given that the make-up of the Supreme Court has become more conservative since Lawrence.  Perhaps in a sign of the times, one of the lead attorneys in the battle to overturn Prop 8, the California constitutional amendment that stopped same-sex marriage in that state, is Ted Olsen, George W. Bush’s Solicitor General.  When the gay rights advocates declined to challenge Prop 8 (in fear of the Supreme Court), Ted Olsen stepped up and said that justice deferred is justice denied.

I cannot say what will happen in the short-term.  In the long-term though the path is very clear.  Homosexuality is becoming ever more normative.  The generation largely repulsed by homosexuality is dying out and is being replaced by one full of people who have openly gay friends, coworkers, and relatives.  Illinois may not be the most progressive state, but it is a definite positive step.  The gay friendly members of the Illinois legislature stared down the bigots and won.  There is hope.

What I listened to while writing this post: World Football Daily (podcast)

How Congress is Destroying Democracy

It is not unusual to hate Congress.  Everyone hates Congress and with good reason.  The old joke asks if Congress is the opposite of progress, and the answer is, of course, yes.  However, over the past few administrations, the situation has become dire.  I believe that Congress has set the United States on a path that will ultimately result in the end of our system of government.

Congress has had help in eroding the government.  The other branches have done much to turn a nominal democracy into an barely covert oligarchy.  The Executive Branch has been grabbing power for itself unchecked for almost 80 years.  The regulatory state is by nature far more complex and comprehensive than legislation.  However, the Executive Branch has been growing astronomically since the Great Depression culminating in the Unitary Executive Theory.

The courts have also done their part over time.  As a rule they are too deferential to the other branches.  Throughout history the Supreme Court has lacked the foresight to avoid self-inflicted wounds.  The foremost example was Dred Scott but there are many, many other examples.  Each of wound has caused the Supreme Court’s validity to be called into question.  Because validity is the only real power source the judiciary has (it controls neither the purse nor actual enforcement forces of any kind), this has led the courts to try and avoid constitutional questions unless absolutely necessary.  Last year in the Citizens United case, the Supreme Court inflicted yet another wound on itself and on the country.  Donating money is conduct not speech.  A corporation is not a person and therefore not protected by the First Amendment.  Common sense tells us the previous two statements are undeniably true.  According to the Supreme Court, both are false.  In our capitalist democracy the richest had the most influential voice; in a post-Citizens United world they will have the only voice.

Nevertheless, the most culpable institution for the inevitable destruction of our democratic republic is Congress–the Senate in particular.  Arcane Senate procedures prevent legislation from passing and administrative and judicial nominees from serving without any votes ever cast.  Moreover very few Senators and Representatives are experts in their fields they oversee (unlike federal agency career staff who are.)  I would argue that in most cases Senators and Representatives are less intelligent than the average American citizen, and to compensate they wage a cultural war against “the elite.”  Yet, it is these people who set policy.  What really makes politicians different from the rest of us is that they are crueler, more ruthless, and more power-hungry.  These are not the leaders we should want.  A government cannot run the way Washington is running; something will eventually give out.

The pushback has already started.  The White House, over the past several administrations, has increased the number of Presidential advisors.  These advisors serve as a de facto Kitchen Cabinet and have better access to the President than the actual Cabinet.  Better still, they need no Senate approval.  Increasing their number is a logical next step when the Senate will not confirm appointees.  It is no surprise that in recent years the agencies have been losing turf to the White House.  White House staff is more important if less prestigious.  Former Secretary of State James Baker left the State Department to become Bush 41’s Chief 0f Staff.  This was considered a step up.  (It says volumes that no woman has ever been Chief of Staff.  An alarming reminder that women are allowed to be figureheads in government, but Executive power is still a male-dominated arena.)  This White House power grab should alarm federalist and all those who oppose centralized power.

The federal courts and not Congress have thus far been the bulwark against an Executive power grab.  However, the federal courts too are suffering from the Senate’s gridlock.  The courts need more judges to run effectively.  Instead they are getting fewer.  The Democrats will most likely not treat the next Republican President with more respect than the Republicans are treating Obama.  Doing so would highlight weakness, especially given the ideological picks that Bush 43 made (and the next Republican President is likely to also make.)  The rift between parties  can no longer be healed.  That is America.

As I noted above, the unstated truth about federal court authority is that it is a house of cards.  In order for court orders to be effective, the parties have to submit.  When an individual does not obey a court order, the court has corrective alternatives.  Should the federal government not comply, then the court has a problem.  Since Thomas Jefferson, Presidents have challenged the Supreme Court with varying degrees of success.  The Bush administration showed how impotent the Supreme Court can be, and a future President could very well ignore court orders altogether with no consequences.

What will happen to Congress?  It will not disappear entirely.  As much as Americans hates Congress, they want the facade of choice.  Congress is doomed to be like the Senate of the Roman Empire as the President evolves into an autocrat.  Karma would indicate that this is what the United States deserves.  The American government interfered with the democratic process around the world, aiding brutal dictators in demolishing elected leadership.  The United States has not been an altogether beneficent world power contrary to what middle school social studies teachers teach.

In the end, perhaps this has always been inevitable.  Tragic, but inevitable.   The world is facing economic, ecological, and martial crises.  The most powerful nation in the world cannot act because 535 children will not get along.  Governments need to be run by adults, never more so than in the face of crises.  Congress only hinders the President, and the incoming Congress will be worse.  The last Bush Administration proved that Congress is superfluous.  Russia and China are proving that the wave of the future is dictatorship not democracy.

I see no change on the horizon.  In my fantasy world, I have a suggestion for how to fix the government.  Constitutional Amendments!  Number 1: Every person in Congress, after his or her term ends (either by retirement of an election loss), must serve half the length of his or her term in prison.  Number 2: Repeal Citizens United.  Go to back to common sense rules regarding money and corporations.  Number 3: Elected officials, political appointees, and federal judges should lose all personal civil rights guaranteed by  the Constitution during the time that they serve.  They cannot vote, they do not have free speech, they cannot carry arms, they have no inherent privacy, etc.  Their salary is limited to a living stipend and nothing more.  Any other money that may come in such as royalties or investments must go into escrow until after they leave office.  All money they have or their families have must also be frozen until they leave office.  Their children get free education at public institutions through the age of 22, but are barred from attending private institutions.  The Justice Department sets up a division devoted solely to monitoring and micromanaging all expenses and expenditures.

What is the purpose of such draconian measures?  Elected and appointed officials have a lot of unchecked power, and it needs to be balanced out.  People who do serve in positions of power should serve only out of civic duty and not for material benefits or hunger for power.  The only way to ensure this is to make the consequences of serving so horrific as to weed out the faint of heart.

This is my fantasy to fix things.  In reality I believe that the system is beyond repair.  It had a good run.