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Conservatives and Gay Marriage

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Whenever political conservatives gather these days, stentorian pronouncements about gay marriage are soon to follow. This is particularly true at the meetings of conservative political parties, which tend to be dominated by the most committed activists. Thus one should not be surprised to hear a conservative politician throwing red meat like this to the base at a party convention:

Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.

Oh sorry, I seem to have mixed up my U.K. and U.S. newspapers this morning. Shouldn’t blog before I down that second cup of coffee. Insert Emily Litella quote here.

That was minor Conservative party figure David Cameron, by the way.

Romney does the full wingnut

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The “grown-up” Republican candidate favors not only having the country welsch on its obligations, but also passing a constitutional amendment that would have the effect of un-marrying the same-sex couples married under New York law. Of course, that amendment will never pass, but in the meantime Romney has pledged to support the Defense of Marriage Act, which denies those married couples all the benefits extended to opposite-sex couples under Federal law, and to appoint only judges who promise to uphold its constitutionality

This will cost him precisely zero support among glibertarians and fair-weather federalists. But it provides more support for the idea that no one can win the Presidential nomination of today’s Republican party with a set of positions that would allow him to win the Presidency.

Tell me again that Obama - who has refused to defend the constitutionality of DOMA before the Supreme Court, and appointed two Justices sure to vote to strike it down - is no different from a Republican? I didn’t hear you the first time.

Question for Gov. Perry

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If the states have rightful control over who may marry, does the Federal government have the right to deny same-sex couples married under New York laws all the benefits it accords to male-female married pairs joined under Texas law? In other words, did you just come out for the repeal of DOMA?

It’s interesting that Perry’s handlers have decided that his theocon credentials are strong enough so he doesn’t have to out-anti-gay Michelle Bachmann. I was wondering which Republican would figure out that the gay issue is now a loser for the Right. I think the country has had enough of Governors of Texas, but if you want to worry about a Republican, Perry is your guy.

 

“Leading from behind”—not a bad Obama strategy, actually, for gay marriage

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Governor Cuomo is getting well-deserved praise for his active leadership in passing gay marriage legislation in New York. President Obama’s supportive but basically passive stance on the same issue has received somewhat lower marks. I’m all in for marriage equality. I’ve criticized the president for his timidity regarding other issues. Still, I believe he’s getting a bit of a bum rap here. Continue Reading…

GOP pols in a corner over gay rights

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Republicans in the New York State Senate are caught between a rock and a hard place: the Conservative Party, representing the Teahadi wing of the GOP, won’t let them vote for gay marriage, but even in conservative districts voting against it is a losing issue and they’re worried about losing their majority. Sometimes the wrong side of history is an uncomfortable place to be.

We’re likely to see the same pattern play itself out on liberalizing the cannabis laws; as it happens, I’m not a fan of flat-out legalization, but by the end of this decade generational change will make it a clear political winner over the status quo, and the drug warriors are still too powerful to allow any early move to a sensible compromise such as legalization without commercialization. In the meantime, cannabis, along with gay rights, looks like an increasing problem for Republicans.

Footnote Of course, the glibertarian blogosphere will simply ignore the fact that their favorite politicians are against individual liberty with respect to sex and drugs. Given a choice between capitalism and freedom, they’ll take capitalism, in the sense of low tax rates on high incomes. Feh.

Will social conservatives throw the anti-gay issue under the bus?

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This past weekend, I attended a workshop on the future of social conservatism.  Though this was a somewhat odd experience for someone with my politics (which I stated openly), I’m determined not to get lazy by only talking to people I agree with.  In the end I learned a lot and, I hope, contributed at least a little.

What surprised me most at the conference was that more than one speaker casually referred to opposition to gay rights as a losing issue for social conservatives—one that they’d have to abandon in the foreseeable future in favor of something else. Nobody spoke up in loud dissent, and nobody called for distinguishing same-sex marriage from other gay rights issues.

Continue Reading…

Wanted: asexual jurists

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[See update below]

It turns out that the judge who declared Proposition (h)8 unconstitutional has a long-time same-sex partner. The h(8)ers - who knew this all along*, since Judge Walker made no secret of it, but didn’t raise any protest during the hearings - are outraged. This was an obvious conflict of interest!  Judge Walker should have recused himself!

But according to their theory, same-sex marriage would damage the institution of (opposite-sex) marriage. Therefore, any married jurist would also have had a conflict of interest. So would any unmarried straight jurist, who might, after all, want to get married in the future, just as Judge Walker might.  Even a completely celibate judge would have had a conflict of interest due in protecting the marriages of his or her friends and relatives.

So it would appear that Protect Marriage wants the case heard by Martians, or perhaps by members of some species that reproduces asexually. Fine with me. But would it be possible to find a Martian judge, or a paramecium, capable of grasping the existence of people whose joy in life consists of denying marital rights to others?

*Update Turns out that the Prop. 8 proponents don’t deny having learned of reports that Judge Walker was gay, although he’s only now commenting about that on the record. What they claim as new information is that he’s in a committed relationship. That, they say, gives him a conflict of interest that another gay judge might not have had, since he and his partner might want to get married.

In other words, they’re not really asking for a Martian or a paramecium. According to their logic - though they don’t quite come out and say it - they would accept any straight judge, or a gay judge who was either celibate or promiscuous. It’s only a gay judge who wishes to conform to the socially-approved pattern of pairwise mating who can’t properly hear this case.

You can see their point, of course. If you’re committed to the notion that gay people are inherently promiscuous, the sort of sneaky gay person who refuses to conform to your prejudices is especially dangerous.

Still no explanation why the threat to a straight married judge’s own home life posed by the acceptance of same-sex marriage - which is after all, the entire purported basis for the ban - wouldn’t give that judge an equally strong conflict of interest.

The Strange Career of Same Sex Marriage Litigation

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An odd ruling out of the Ninth Circuit today, which is hearing the appeal of Judge Walker’s opinion overturning Proposition 8.  The Ninth Circuit panel has asked the California Supreme Court for advice on the question of the intervenor’s standing to be heard in the case. Full order here.

You might recall that after Judge Walker’s ruling, neither then-Gov. Schwarzenegger nor then-AG Jerry Brown elected to appeal it.  Now, various groups, including the clerk of (quite conservative) Imperial County, California, has asked to intervene and appeal the case for themselves, and the 9th Circuit theoretically is asking the California Supremes for guidance on the standing question.

This is strange to me, because standing is a question of federal constitutional law, deriving from the US Constitution’s provision that federal courts can only hear “cases and controversies.”  So why would a state Supreme Court have anything to say about it?  The Ninth Circuit has asked the California Supremes whether California law gives these sorts of intervenors standing to sue regarding initiatives, but I’m wondering why that’s relevant: if a federal court doesn’t have jurisdiction under Article III, it doesn’t matter what state law says.

Second, in order for a question to be certified to a state court, that court must able to accept certified questions.  My understanding is that the California Supreme Court does not accept these questions.  So what’s the point?

Obviously, it couldn’t be this easy, or the Ninth Circuit wouldn’t have done it this way.  But it seems bizarre.  I’ll keep checking.

UPDATE:  Here’s why the Ninth Circuit said it’s okay:

“The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Having been granted intervention in the district court is not enough to establish standing to appeal; “an intervenor’s right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III.” Where a plaintiff in federal district court must demonstrate “an ‘injury in fact’ — an invasion of a legally protected interest” by the defendant — so too must an appellant prove his standing by establishing “a concrete injury related to the judgment” he seeks to appeal. States, however, “ha[ve] the power to create new interests, the invasion of which may confer standing.” “In such a case, the requirements of Article III may be met.” Proponents contend that they possess such an “interest that is created and secured by California law” — an interest in the validity of the voter-approved initiative they sponsored, which interest is “inva[ded]” by the judgment declaring Proposition 8 unconstitutional. argue that their interest as the official proponents of the initiative is different in kind than that of the citizens of California generally. If Proponents do possess such a particularized interest, they would have standing to appeal the judgment below.

Proponents also claim an alternative and independent additional basis for standing: The State of California itself has an undisputed interest in the validity of its laws, and Proponents argue that “they may directly assert the State’s interest in defending the constitutionality of its laws.” Proponents allege they are able to represent the State’s interest because they “have ‘authority under state law’ to defend the constitutionality of an initiative they have successfully sponsored … acting ‘as agents of the people’ of California ‘in lieu of public officials’ who refuse to do so.” If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative, then Proponents would also have standing to appeal on behalf of the State.

There is something to this: state law creates property rights, for example, so a federal court would need to know whether someone has a property interest before a plaintiff has suffered “injury-in-fact” (a key part of the test).  But you can only go so far with that: when the state of Massachusetts in Massachusetts v. EPA said that it had a protected property interest in the coastline and was thus a proper plaintiff to bring a climate change case, the Court didn’t just say, “well, the state said it, so it must be true.”  And the Four Horsemen rejected it despite that.

The Case for Standing — or Lack Thereof

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Emily Bazelon asks:

But in the end, do we really want gay marriage to become legal in California because of what’s essentially a technicality? That seems a highly unsatisfying resolution to what was always billed as an epic case, and it would expose in the left a bit of hypocrisy about standing much as it would the right.

Answer: yes, that’s precisely what I want.

If the Prop 8 is dismissed for lack of standing, then that means that gay marriages will be legal in California.  It will move the cause forward.  We will see gays and lesbians get married, with the end of the world not occurring.

And most importantly, it will mean that all of this can occur without worrying about what Anthony Kennedy will feel like when he wakes up in the morning.  Kennedy has been sympathetic on issues of gay rights: after all, he wrote Romer and Lawrence.  But taking this case to the Supremes means asking him to hold that gay marriage is mandated across the United States.  He doesn’t want to do that: that’s why he wrote Romer narrowly, without squarely facing the issue of review standard for sexual orientation discrimination.  It’s too much of a risk to force him into this kind of position.

Bazelon rejects this.  “Isn’t it odd,” she asks, “to think that a majority of the voters could pass a law, and then just because the governor and the attorney general don’t like it, no one gets to stand up for it on appeal? Especially after they’ve been allowed to do so at trial?”

Well, yes — it is odd.  And you know what?  Courts do this all the time.  The Supreme Court in Brown v. Board of Education did not rest its decision on the equality principle, but rather a bunch of social science research concerning educational outcomes.  And you why that was?  Because the justices knew that if they wrote the decision more broadly, they would have to come to grips with — irony alert — anti-miscegenation laws.  And they knew that the time wasn’t right for that.  That actually is what standing is really about.

I’m no fan of restrictive standing, and think that constitutionalizing it is a terrible idea.  But I’ll take it.  That’s the way progress works.  And if this causes conservatives to become enraged at restrictive standing rules, we can’t say we didn’t warn you.  Maybe your friends like Chief Justice Roberts can actually do something about it.

Judge Vaughn Walker and Coping with Vilification

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Some people may wonder how Judge Vaughn R. Walker is holding up under the brutal, often homophobic tirades to which he is now being subjected for his recent ruling on gay marriage. At a Stanford drug policy forum about a decade ago, we were seated together at the closing dinner. The interaction that evening makes me confident he will bear up well under one of those waves of vilification that the current U.S. political environment, 24 hour news cycle, and the Internet can combine to generate.

The profile in New York Times captured something of Judge Walker, but Maureen Dowd did it better I think in much less space when she remarked off-handedly that in a 1940s movie, Judge Walker would be played by Clifton Webb.

At the time of our dinner, he had recently announced publicly that he favored the legalization of drugs, for which as a Reagan appointee he was being vilified by many conservatives. Soon afterwards, he would hand down a ruling stating that the public had no power to stop banks from charging ATM fees, for which he would be vilified by many liberals and populists.

During that dinner, I asked this clearly erudite and intelligent man how he dealt with all the public denouncement of his abilities and character. He shrugged and didn’t say anything, but across his face spread an impish Clifton Webb-esque smile that seemed to say “Well, isn’t a bit of fun to stir the pot now and then?”.