More from Carly Fiorina’s interview with Doug Sovern and Simon Perez yesterday – in addition to calling for tax cuts for the rich and claiming we don’t have to worry about how to pay for them, she also made several references to the need for higher unemployment:

Q: You cut jobs at HP, you know what it’s like to cut jobs, you made tough choices – so are you saying that you want to go to Washington, DC to cut jobs? Is that the argument to the people of California – ‘Send me to Washington, I know which jobs to cut, and I’ll cut them?’ Is that what people want to hear when they need jobs?

A: Well, look. It’s unacceptable that Californians are living with 12.6 unemployment and federal employees are growing at 14.5% a year. That is unacceptable. So yes, let us start with the basic proposition that the federal government shouldn’t be getting any bigger.

That’s why, by the way, I would have voted against the financial regulatory reform bill….Barbara Boxer’s solution is to create yet another agency, to hire yet more people.

Just so we’re clear, Fiorina believes that in the worst recession in 60 years, government should not be hiring to fill in the gap, that higher unemployment is good, that more federal employees should be laid off so that everyone is miserable.

What more evidence do we need that Fiorina does not understand how the economy works? She has no clue about the need for government to step in to provide stimulus and job creation when the private sector is not creating jobs.

As any actual small businessman will tell you, the problem is that they aren’t seeing customers. People won’t spend money because they don’t see recovery on the horizon and, in a balance sheet recession, they’re focused on using what money they do have to pay down debt, not to buy what a small business is selling.

Only government can step in to change this. Without government hiring and spending money, you see deflation and a long-term depression as the private sector, both households and businesses, take their time to purge debt. It’s the same phenomenon we saw from 1873 to 1896, and from 1929 to about 1939 or 1940, when World War II finally provided the massive stimulus to bring a permanent end to the Great Depression.

Fiorina shows she doesn’t understand the economy any better today than she did 5 years ago when she was fired as CEO of HP. Fiorina has only one answer to an economic crisis: slash jobs and give more money to the wealthy. It didn’t work under George W. Bush, and it certainly won’t work today.

But that’s Fiorina’s gambit. Her only hope for winning this election is to convince enough Californians that their future prosperity lies in higher unemployment and making the rich richer. We’ll see how well it goes.

Yesterday David Axelrod, one of President Obama’s main political advisers, signaled the White House plans to abandon efforts at new stimulus after they get unemployment benefits extended:

David Axelrod appeared on This Week and acknowledged that the Administration has little chance of getting anything beyond an extension of unemployment benefits through Congress between now and the election. That extension would appear to have 60 votes whenever Robert Byrd’s replacement gets into the Senate. But that jobs bill that had all the tax extensions and infrastructure funding and summer job money? Forget it. Aid to state Medicaid programs? Isn’t going to happen. Extending the COBRA subsidy to keep the jobless covered? Nope.

Axelrod blames Congress, but he has also been pushing the president to embrace Hooverism, leaving the White House on the sidelines as Congress actively works to turn the recession into an outright depression. Both the White House and Congress appear to have embraced the argument that the public wants deficit reduction, even though all the available evidence shows the public really wants jobs and growth.

The effect of the White House’s embrace of Hooverism on California is likely to be catastrophic. As the Sac Bee reports this morning, the 2009 federal stimulus money is starting to run out, threatening to grow the state budget deficit even wider and threatening economic recovery:

Facing a dismal budget crisis last year, California relied on a federal lifeline of stimulus dollars. The cash infusion staved off the bleakest of cuts to Medi-Cal patients, welfare recipients and students.

But that money is beginning to run dry, leaving California grappling with whether to replace it by raising taxes or institute the severe cuts the state avoided last year….

The federal government last year authorized an $862 billion stimulus package that included $85 billion for California. The money accounted for about $8.7 billion of direct state budget relief in last year’s plan to bridge a $60 billion deficit over 17 months.

Federal leaders presumed that an economic recovery by next year would provide more tax revenue and pick up the slack. But California remains mired in an economic malaise, and the unemployment rate is 12.4 percent.

The only reason we’re doing as well as “mired in an economic malaise” and not seeing much higher unemployment numbers is because of the federal stimulus of early 2009. With the White House now itself embracing Hooverism, a renewed downturn here in California seems almost certain.

The expiring stimulus funds will lead to many more layoffs, and the destruction of more public services will cause small businesses to suffer as customers stay home, hoarding money to pay for the necessities for themselves and/or their families that the state used to provide.

Some voices are out there calling on the Fed or the Treasury to loan money to the states to avoid the kinds of cuts that loss of stimulus funds will force. It’s an inferior solution, but better than the alternative, and intended to appease the “deficit terrorists” on Capitol Hill.

But that seems unlikely to happen, as it misreads the motivations of the deficit hawks. They’re not moved by economic considerations – if they were they would heed the global consensus that cuts will produce an outright depression. No, the deficit hawks are actually motivated by a desire to destroy public services and social benefits. They use the deficit as a cover for their shock doctrine attack on everything from Social Security to schools. To them, a Depression is an opportunity to finish off the New Deal state, instead of something to be avoided at all costs.

There’s no doubt that Sacramento helped create the state’s budget mess through costly and reckless tax cuts. But the prime culprit in the state’s budget deficit is the recession itself. Since the federal government has now decided to throw us all to the wolves, California’s ability to deal with the budget in a way that doesn’t crash our own fragile recovery is almost totally gone.

This unsettling situation makes the November elections all the more important. If Meg Whitman is elected governor, we will face an outright Depression and a destruction of everything about this state that we hold dear. If Carly Fiorina is elected to the Senate, she will lead the fight to destroy American jobs just as she did at HP.

California’s future hangs in the balance. With the White House making the wrong decisions, it’s up to California voters to make the right ones on November 2.

More goodies from the Field Poll, this time on the LG and AG races:

Lt Gov:

Newsom 43

Maldonado 34

Undecided 23

Attorney General:

Cooley 37

Harris 34

Undecided 29

Newsom’s position is strong even though more voters view him unfavorably (41-26). Maldonado is less well-known – 67% have an opinion of Newsom, but only 37% have an opinion on Maldonado.

Overall Newsom has some important early leads. He wins DTS voters 45-21, and has a commanding lead in NorCal, 53-31. In SoCal he polls about even with Maldonado, 37-36. Maldonado is going to need to spend a lot of money to raise his name ID if he’s going to have a chance at winning.

In the AG race, things are much closer, but Kamala Harris has a strong upside. Harris currently only polls 58% of Democrats, with 28% undecided – this may be residual from the primary, and Harris should be able to get stronger numbers from Democrats as the campaign goes on. Republicans have united behind Cooley, unsurprisingly.

Harris has a lead among DTS voters, 30-24, though 46% are undecided. They each have about a 10-point lead over the other in their respective regional bases, with Harris leading in NorCal and Cooley leading in SoCal.

Both Harris and Cooley have low name ID – about 70% of voters don’t have an opinion on either candidate – suggesting that whomever is first to define the other will gain an advantage.

Overall this suggests that Newsom is well on his way to becoming Lieutenant Governor, and that the AG race will be a closely fought battle. We’ll need to make sure Kamala Harris wins this – the last thing California needs is a right-wing AG.

	Yes	No
Prop 18:	42	32
Prop 19:	44	48
Prop 23:	36	48
Prop 25:	65	20

Field Poll week, always a kind of California political Christmas in July (or whatever month it happens to be), continues today with new numbers on four of the major propositions on the fall ballot, which you can see at right. They are Prop 18, the $11 billion water bond which may or may not be on the fall ballot, Prop 19, which would legalize cannabis, Prop 23, which would repeal AB 32 and destroy our green jobs economy, and Prop 25, the majority vote budget initiative.

It’s hard to discern any obvious trends from these numbers, so I’ll take each proposition in turn (except Prop 18, which seems likely to be removed from the ballot). Prop 19 is suffering from the “enthusiasm gap” seen in other polls around the state and nation, in that Democratic base voters are not planning to show up in the same numbers this fall that they did in 2008. But Prop 19 is having some trouble even with that base vote.

White voters support Prop 19 48-43. But nonwhites are opposing it by larger margins. Latinos oppose 62-36, African Americans oppose 52-40, and Asian Americans oppose 62-33. Voters under age 30 support it 52-39, but the Field Poll found the white/non-white divide exists in this age group as well. Voters between ages 30 and 65 are mostly split, with voters over age 65 strongly opposed, 57-33.

Some may read these numbers as portending doom for Prop 19. But the campaign is already moving to proactively address this. This week saw the prominent endorsement of Prop 19 by the California NAACP, whose president Alice Huffman wrote about her support for the law:

As leaders of the California NAACP, it is our mission to eradicate injustice and continue the fight for civil rights and social justice wherever and whenever we can. We are therefore compelled to speak out against another war, the so called “war on drugs.” To be clear, this is not a war on the drug lords and violent cartels, this is a war that disproportionately affects young men and women and the latest tool for imposing Jim Crow justice on poor African-Americans.

This is a message that will resonate among African Americans, and likely among Latinos as well. Cast as a prison reform measure, and a fight against unfair police treatment, it is entirely likely that the numbers will show movement toward the “yes” side among those communities. And that could be enough to put Prop 19 over the top. Clearly, turnout will matter, and if Prop 19 can drive its younger supporters to the polls, that will not only help Prop 19, but Democrats on the November ballot.

Prop 23, the measure backed by big oil companies that would repeal AB 32, the landmark global warming and green jobs bill, is not in a good position, with only 36% of voters backing it. Prop 23 fares poorly among all age groups except 30-39 year olds, which is primarily made up of the more right-wing Generation X. Millennial voters, those of us 30 and under, oppose Prop 23 by a large margin, 56-33.

Prop 25’s large early lead is welcome news to progressives – and probably explains the right-wing smear campaign that was launched against it yesterday, as Brian explained. With 58% of Republicans supporting this measure, you can also understand why Republican politicians are now lying to the public that Prop 25 would make it easier to raise taxes.

Although, if they keep saying that and Prop 25 passes anyway, it would seem a sign to me that we should immediately follow up with an initiative on the November 2012 ballot to eliminate the 2/3 rule for taxes as well.

Clearly there is some work to do on behalf of Prop 19, particularly among communities of color. And we’ll need to ensure that Prop 23 remains unpopular, and that the No on 25 campaign isn’t able to erode this early support for Prop 25 by too great a margin.

US Senator Barbara Boxer brought her “Jobs for California” tour to Monterey this morning, where she fired up the crowd with a very strong and robust defense of her record in the Senate, her role in bringing jobs back to California, her plans to improve and speed up economic recovery – and some damning attacks on her opponent, Carly Fiorina.

Boxer has been touring the state touting the jobs created by the stimulus act, which Fiorina opposed. Yesterday she was in San Francisco at the Doyle Drive project which is getting under way this year thanks to $100 million in stimulus money. Fiorina has been attacking the stimulus, which has been conservatively estimated to have saved or create 150,000 jobs in California.

Fiorina’s entire campaign plan, in fact, appears to be geared around calling for higher unemployment. Fiorina’s spokeswoman Julie Soderlund said the jobs created by the stimulus weren’t worth it, and at today’s Monterey event about five Fiorina supporters showed up with signs reading “Government Jobs aren’t Real Jobs.”

Boxer’s speech this morning, which was both lively and fiery, took direct issue with Fiorina’s arguments. Boxer challenged Fiorina to come with her to Fresno later in the day where she would be meeting with police officers whose jobs were saved by the stimulus, or go with her to the project building the fourth bore of the Caldecott Tunnel, where private sector jobs are being created with public funds.

Boxer also slammed Fiorina’s own record on jobs. Fiorina has opposed ALL jobs bills that have come before the Senate, including extension of unemployment benefits. And of course, Fiorina laid off 30,000 workers at H-P, a company she ran into the ground and was fired from in 2005. Fiorina memorably called offshoring “right-sourcing” and said “there is no job that is America’s God-given right anymore” – an indication that she is totally uninterested in actually creating jobs here in California.

In contrast, Boxer made her own job creation solution clear. She said her plan has three key elements: 1) rejecting Prop 23 and protecting California’s ability to lead the recovery through green jobs, 2) using transportation projects from highways to high speed rail to put people back to work, and 3) stop the corporate offshoring of American jobs.

Boxer strongly opposed Prop 23, which would repeal AB 32, calling it a “job killer.” As to the deficit, Boxer drew loud cheers when she said that Bush’s tax cuts for the rich and his two wars were responsible for undermining the work she and President Clinton had done to produce a surplus in the 1990s.

In fact, that last argument could be Boxer’s secret weapon. Boxer was there in the Senate in 1993 when she helped pass President Clinton’s jobs and deficit reduction bills. By 2000 there was a record $230 billion surplus, which Bush promptly destroyed through his reckless tax cuts and destructive wars.

The 1990s economy wasn’t perfect – far from it. In fact, Carly Fiorina was perhaps one of its highest-profile products, and one of its most obvious failures. But there’s no doubt that Boxer helped produce a budget surplus and real economic growth and job creation in the 1990s. She can do it again with President Obama – but only if Fiorina is kept far, far away from the US Senate.

Judging by her tour of California this week, Boxer is more than ready for the task.

Photo: Lynne Frey, Monterey County Democrats

A new analysis from Orange County Register political columnist Martin Wisckol and California political observer Allan Hoffenblum showing how Democrat Phu Nguyen can win AD-68 has been making the rounds among the state’s political media today, and it’s about time.

We’ve been writing about Phu Nguyen for some time now here at Calitics, and more broadly have talked about how Democrats have lots of pickup opportunities in Orange County. But it is good that the rest of California is learning this as well.

Wisckol’s and Hoffenblum’s assessment is a pretty good one:

The first place to look for possible November surprises in Orange County is the Assembly seat being vacated by Van Tran, R-Westminster, according to veteran elections handicapper Allan Hoffenblum.

Costa Mesa Mayor Allan Mansoor, a Republican, is the favorite given the GOP’s 7.5 percentage point advantage in voter registration and his superior name recognition. But it is also the most heavily Vietnamese-American district in the county, which helps well-funded Democrat Phu Nguyen.

“That’s always been a Republican seat because the Vietnamese have voted Republican,” Hoffenblum said. “But sometimes race trumps all.”

Additionally, Mansoor’s hardline anti-illegal immigration position could turn off some Little Saigon voters, Hoffenblum said. He points to the primary, where the much lesser known Republican Long Pham barely campaigned and still received 31 percent of the GOP vote.

“If those people vote for the Vietnamese candidate in the general election, the Democrat will win,” said Hoffenblum, whose Target Book analyzes contests.

This makes sense, and yet it undersells Nguyen’s appeal to the voters of the 68th district. Nguyen understands the needs of his district – job creation, protecting public schools, providing health care, and helping produce a balanced state budget.

This is stark contrast to Mansoor, who apparently believed the mayor of Costa Mesa’s primary role was to bash immigrants, instead of attending to the city’s economic and fiscal concerns. Mansoor has nothing to offer voters of the 68th District, and it’s a shortcoming Nguyen is poised to exploit.

One question Hoffenblum asks is whether Orange County’s large Vietnamese community will vote en masse for Republicans, or en masse for the Vietnamese candidate. Here again, I think he’s painting with too broad a brush. Many Vietnamese voters will indeed vote for Nguyen, but not merely because he shares their heritage.

Young Vietnamese in Orange County share many things in common with other young people in the OC, and one of them is that they’re more favorable to Democrats than older generations. This is obviously more pronounced in the Vietnamese community, where many first-generation immigrants were strongly Republican owing to 1970s-era politics, where the GOP was seen as the anti-Communist, anti-Hanoi bulwark.

Older Vietnamese may be torn, but here again Nguyen offers more than just a Vietnamese name – he is well-known in the community and speaks to their issues as well.

Combine that with Nguyen’s appeal to other voters and communities in the district, and Mansoor’s one-note campaign, and it seems that Phu Nguyen can definitely win AD-68. Along with Melissa Fox in AD-70, and Congressional candidates Bill Hedrick in CA-44 and Beth Krom in CA-48, some of the best pickup opportunities for California Democrats are back home in Orange County. Let’s hope Dems are ready, willing, and able to win those fights this fall.

The latest Field Poll is out, and it shows a virtual tie in the race for governor. Jerry Brown has 44%, Meg Whitman has 43%, and 13% are undecided or backing someone else.

In itself, that’s not so bad for Brown. Whitman has been dominating the airwaves since February, and won a big victory in her primary race, whereas the Brown campaign has been relatively silent. Yet Brown has a better favorable rating – 42-40 – than Whitman, who has a slightly negative rating at 40-42.

The problem comes when you drill down into the numbers and find that Brown is in trouble with some important segments of the electorate.

Young voters – those of us age 18-39 – support Whitman, 45-42, while voters over 50 back Brown by a similar margin.

Brown’s lead among Latinos is just 11 points – 50-39. And Decline to State voters, who lean Democratic, give Brown another narrow lead, 42-39.

It’s not easy for any Democrat to win an election without strong support from young voters and Latinos, and with a wider margin among independent voters. Brown may well be able to pull out a narrow victory here, but it’s going to be a very bumpy ride between now and November 2, with no room for error.

The numbers for younger voters and Latinos are influenced by the fact that Field is polling likely voters – which indicates that a LOT of young people and Latinos are planning to sit out the November election, at least as of right now. Younger voters usually go strongly for the Democratic candidate, and although Field’s definition of “young” is a bit broad, reaching into the more right-wing Generation X cohort, it’s still a concern that Whitman has a lead here at all.

With Latino voters, Brown should be doing better than an 11 point lead. Whitman got caught up in an ugly Republican primary that featured a lot of Latino bashing. But perhaps Whitman has so far avoided the worst effects of it. If she can hold Brown to 50% among Latino voters, she has a real shot at winning.

Brown needs to ramp up his outreach to Latino voters, whose interests he has championed for over 40 years, and he needs to get working on articulating a clear vision of California’s future that can inspire the younger voters who turned up to elect Obama in 2008 to show up and elect Brown in 2010. He could also embrace Prop 19, the cannabis legalization initiative, which is one of the few options we’ve got to drive younger voters to the polls this fall, in the absence of an inspiring Obama-style campaign, which nobody really expects Brown to run.

Jerry Brown clearly has some work to do to win this election. He needs to do better with these core Democratic constituencies to have a better chance of holding on a beating Whitman. Brown may be hoping that a barrage of negative ads will make the difference, but all that will do is reinforce the current likely voter universe and won’t draw out the younger voters and Latinos (an overlapping group, to be sure) he needs to put some distance between himself and Whitman.

Crossposted from the Prop 8 Trial Tracker

Over the holiday weekend, two op-eds appeared in the New York Times and the Washington Post criticizing the Perry v. Schwarzenegger case. The op-eds, by Jonathan Rauch and Jonathan Capehart, have been getting a lot of attention – and even approving words from Maggie Gallagher.

But are the arguments in these op-eds valid? As I’ll explain, they’re far from it. Both present a deeply flawed assessment of the case itself, the politics of the case, and of the purpose of the judiciary itself.

Much more over the flip.

First up is Jonathan Rauch, whose op-ed in Saturday’s NYT titled “A ‘Kagan Doctrine’ on Gay Marriage” kicked off the recent debate:

ELENA KAGAN uttered neither the word “gay” nor “marriage” in her opening statement at the Senate confirmation hearings on her nomination to the Supreme Court, but she addressed the issue nonetheless. No, she didn’t say how she will vote when gay marriage comes before the court, as it may soon. What she did say was this:

“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people.”

Ms. Kagan may not have had gay marriage in mind when she made that statement, but it could not be more relevant. She seems to be saying that protecting minority rights is the Supreme Court’s job description, but also that a civil rights claim doesn’t automatically trump majority preferences. This is something absolutists on both sides of the gay marriage debate don’t like to hear, but it has the virtue of being right.

Rauch is guilty of the “both sides are the same” fallacy, calling those of us who support marriage equality “absolutists” alongside those who wish to deny equal rights. In Rauch’s mind, our arguments are essentially the same, and “serious” people like himself should stand apart from this debate entirely – or find some sort of half-solution that doesn’t provide equal rights, but avoids the need to have the necessary debate and battles to achieve equality.

He argues that Kagan is right that equal rights must be balanced against letting the voters decide matters, and that “judicial restraint” must be considered as well as equality.

It’s unclear whether Kagan would use this statement to rule against equality if and when Perry v. Schwarzenegger reaches the Supreme Court. But it is very clear that Rauch would like her to do exactly that:

This case is not primarily about the merits of gay marriage. It is primarily about who gets to decide. The plaintiffs say marriage is a civil right, and when a civil right is assailed, the Supreme Court has no choice but to take command. If the Supreme Court doesn’t protect minority rights, it abdicates its job.

Proposition 8’s defenders retort that gay marriage is not a civil right, because it is not marriage, or not marriage as defined by most Californians. If the court does not defer to the voters’ wishes, it oversteps its bounds.

Ms. Kagan seems to reject both forms of absolutism. Civil rights, she implies, are important, but so is judicial modesty, and a sensible judge balances the two. A sensible judge can say something like, “Same-sex marriage may indeed be a civil right, but not all civil rights demand immediate judicial intervention, and other important interests militate against imposing this one on the whole country right now.”

Notice what Rauch does here. He equates our side of the case – we who oppose Prop 8 – and the defendants in order to discredit us both. Instead of assessing the merits of the arguments, he seeks a moderate position which, like most moderate positions, actually serves the ends of the right-wing.

Rauch makes it sound like the desire to have the US Supreme Court step in and enforce the Constitution when a state is ignoring it is somehow “absolutist” or undermines the courts. This is a ridiculous claim which flies in the face of nearly 200 years of judicial precedent. Going all the way back to 1819 and the case McCulloch v. Maryland, the US Supreme Court has held that the Constitution is supreme to state law, with a few exceptions.

It’s worth nothing one of those exceptions is not the 14th Amendment. I’ve always felt it is one of THE most important amendments, maybe even more important than the First Amendment. The key phrase is as follows, bolding is mine:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These two clauses, known as the “due process” clause and the “equal protection” clause, are at the heart of this trial. The plaintiffs argue – correctly – that they have been denied equal protection of the laws because of Prop 8, which discriminates against them and is therefore invalid under the 14th Amendment. Rauch would prefer we ignore this argument and let discrimination stand for the sake of “judicial restraint.” Notice also that the amendment specifies “states” – unlike some other amendments, whose applicability to the states has been uncertain, the 14th was always intended to apply directly to the states, giving the federal courts a role in enforcing the amendment over what a state or its voters might do.

Importantly, we’ve been here before. Within 10 years of the passage of the 14th Amendment, the US Supreme Court began refusing to implement the amendment. Their argument was that the courts needed to show “judicial restraint,” but in cases like US v. Cruikshank (no relation) the Supreme Court refused to apply the 14th Amendment, arguing that the amendment should have only a limited application to the states. In Plessy v. Ferguson the Supreme Court even ruled that “separate but equal” was permissible. As a result, Jim Crow became established in the South as persistent discrimination and segregation was the law of the land.

In 1954, after over a decade of shifting judicial philosophies, the Supreme Court began to revive the 14th Amendment in the landmark Brown v. Board of Education case, which as you know ruled that school segregation violated the 14th Amendment and expressly overturned the “separate but equal” formulation. At the time, critics of the decision felt that it had gone too far, that it had improperly shed “judicial restraint.” The same charge was leveled at the Supreme Court in 1967 when they overturned all bans on interracial marriage in Loving v. Virginia, a case explicitly cited by Olson and Boies in their original lawsuit filing.

What we see is that Rauch’s argument legitimates discrimination. By placing “judicial restraint” above the 14th Amendment’s imperative to prevent state discrimination and denial of equal protection of the laws, he is repeating the hoary arguments made to oppose the Supreme Court’s decisive action that enabled the Civil Rights Movement to tear down the barriers of legalized segregation.

Rauch claims that the voters have a right to decide these questions, and that courts would be wrong to overstep those concerns. Yet the Supreme Court has already rejected that argument. The mandatory school segregation that was overturned in Brown and the interracial marriage bans that were overturned in Loving were the product of democratically-elected legislatures, and one could credibly argue that they were the expression of the will of the voters (keeping in mind of course than in many Southern states, African Americans were denied the right to vote).

In fact, when it comes to LGBT rights, the Supreme Court has already ruled that the Constitution trumps the voters. In 1996, the Supreme Court, led by Anthony Kennedy, handed down the Romer v. Evans decision, overturning a constitutional amendment approved by Colorado voters in 1992 that prevented Colorado from doing anything to protect or advance LGBT rights. Kennedy slammed Amendment 2 as being “unprecedented” and clearly motivated by animus toward LGBT people – one of the main reasons why that very issue has become so important in the Prop 8 trial.

This all goes back to a core principle of the US Constitution. Contrary to what Rauch seems to believe, the Constitution’s authors did not envision a democracy that was all-powerful. The Constitution’s very purpose was to both define as well as limit what government – and therefore, what the voters – could do. It absolutely did not suggest that the “will of the voters” was absolute or even of primary importance. Instead the Constitution produced strict limits on what both the government and the voters could do in the interest of protecting basic rights.

The 14th Amendment stems from this basic principle, and since the 1940s has been correctly interpreted by the Supreme Court to trump state laws and, therefore, the voters who either approved those laws or elected the legislators who passed those laws.

Rauch goes further and revives another talking point from the opposition to the 1950s Civil Rights Movement: that the Supreme Court was moving too fast and that we should slow down, wait, and let the public come to equality all on its own:

But the gay-marriage debate, while assuredly a civil rights argument, is much more than that. It is also a debate about the meaning of marriage, about the pace of change in a conflicted society and about who gets to decide. Whatever the activists on both sides say, nothing in the Constitution requires the Supreme Court to short-circuit the country’s search for a new consensus, either by imposing gay marriage nationwide or by slamming the door on it with an aggressively dismissive ruling. Sometimes the right answer for the courts is to step aside and let politics do its job.

Dr. Martin Luther King, Jr, Thurgood Marshall, and other Civil Rights leaders rejected this thinking. They argued, correctly, that it was the job of the courts to protect the rights of Americans whether it was the popular thing to do or not, whether the political system and the society were “ready” for it or not.

Of course, as we know from the recent history of what happens when marriage equality is put to a vote, it doesn’t seem that politics is “doing its job.” Instead we should let the courts do their jobs. This is why they build courthouses – to enable those being denied their equal rights to petition to force the courts to step in and provide relief.

Rauch’s argument flies in the face of this legal history and these political facts, and would permit discrimination to stand. It’s no wonder, then, that Maggie Gallagher praised Rauch’s op-ed:

This column by Jonathan Rauch is a real act of integrity: How many men in a legal same-sex marriage would publicly call on the Supreme Court not to strike down Prop 8, at least not yet? He calls Prop 8 unfair and unwise policy, but a judgment the people of California are entitled to make.

Right now, civil-union laws are being used to strike down marriage laws in courts; if you pass a civil-union law, gay-marriage advocates will use it in court to argue that only bigotry could explain why you are withholding marriage.

Rauch, on the other hand, recognizes that what he and others seek is not access to a merely legal construct, something created by government alone, but recognition by society of the value of his union as a marriage. Don’t short-circuit the conversation now taking place, he urges.

On that we agree.

Not surprisingly, Gallagher is wrong here – what marriage equality supporters seek is the recognition of their right to get married to a person of the same sex as themselves, a right that seems obvious under the 14th Amendment’s definition of “equal protection” and the precedents of cases like Loving v. Virginia. But it’s a telling sign of just how flawed Rauch’s op-ed was that Gallagher was quick to see in it an argument that boosted her defense of Prop 8.

Finally, there was Jonathan Capehart’s post at the Washington Post site on Monday, titled Could impending Prop 8 decision doom same-sex marriage? In it, Capehart takes Rauch’s op-ed and uses it as a basis to argue that the entire effort to undermine Prop 8 in the courts is too risky:

Given the current landscape, it would be astounding if the court overturned the will of the people as expressed through state constitutions, acts of the legislature and at the ballot box.

Capehart repeats Rauch’s error in seeing the “will of the people” as being more important than the US Constitution. But Capehart’s real concern is that a favorable ruling from Judge Walker could spark a backlash that would undermine marriage equality:

Legally speaking, the kindling is there for a controlled blaze confined to California or an inferno that could stop the national march toward marriage equality in its tracks possibly for decades either through a constitutional amendment (extremely difficult, but not impossible) or, as Rauch put it, through an “aggressively dismissive ruling” from the Supreme Court. All that’s needed is a spark. Right now, Judge Walker is the man holding the matches.

Capehart doesn’t assess the alternative, which is to simply let discrimination continue indefinitely. There’s no doubt that risks are involved with the legal strategy. But in a case like this, where Prop 8 is so flagrantly unconstitutional, and with two of the top constitutional lawyers in America – Ted Olson and David Boies – leading the case, it is a risk well worth taking. Again, these are why the federal courts exist – to take cases like this and apply the Constitution to ensure protection of rights.

Adam Bink has a good take on this over at Open Left, writing that:

As one colleague put it to me, we are creating the climate and momentum for a win, and must continue to do so.

That’s exactly right. Our movement must be ready for whatever Judge Walker rules, and whatever the Supreme Court ultimately rules. And part of being ready is building the movement and shaping the climate to favor a win. It’s how the Civil Rights Movement overcame the “go slow” advocates of “judicial restraint” in the 1950s and 1960s, and it’s what the LGBT rights movement needs to do here in the 2010s.