A while back, I pointed to the specific language of Prop 25 (majority vote budget) that indicated that the measure didn’t affect the 2/3 revenue measure. While many of us may disagree with that, the language is clear.  

However, Howard Jarvis’ corpse had sued to block the summary language that included the statement that tax increases are still governed by the 2/3 rule.  And they won in the trial court.  Well, today they lost on appeal, and the language stays:

Today’s ruling from the appeals court delivers a blow to that argument, saying the measure’s intent language declaring it would not change the legislative vote requirement on taxes is clear enough to assess the measure’s impact.

“(W)e find nothing in the substantive provisions of Proposition 25 that would allow the Legislature to circumvent the existing constitutional requirement of a two-thirds vote to raise taxes,” the ruling reads.(SacBee)

As Paul pointed out, prop 25 is an essential part of this year’s ballot.  While this case may not be make or break to us, it might just the difference that pushes the measure over the top.

Tom McClintock is certainly not one known to hold his tongue for any reason, but he’s let it all hang out with his feelings about the GOP nominee for Governor, Meg Whitman.

McClintock went on, “If it comes down to a choice between Arnold Schwarzenegger’s third term with Meg Whitman, or Jerry Brown’s third term with Jerry Brown, anyway you cut it, it’s going to be a long four years.” (SacBee)

I can’t say I really blame him, but this is all rather public. And he doesn describe the situation rather fairly.  The best the GOP, or the state really, can hope for from Meg Whitman is four more years of Arnold Schwarzenegger-style governance.  And really, it’s hard to think of any ways that Meg is either more capable or more knowledgeable about the problems than our current Governor.  

On a side note, if somebody asked me ten years ago whether I thought I would ever write the sentence above (about a CEO of a major corporation not being more knowledgeable than a former action movie star), I would have laughed.  But such is the situation that we find ourselves in.

As for the second clause of McClintock’s analysis, well, Jerry Brown would be Jerry Brown part III.  Now, while he had to spend much of his second term trying to patch together a system of governance that could last a few years in the wake of Prop 13, his record is really rather positive.  Sure, that Prop 13 is a bit of a downer, but he managed to somehow build a system that lasted nearly 25 years before it really broke under the weight of the super majority requirements.

But, all in all, I’m with Tom. Why would California want another term of Arnold Schwarzenegger?

This is cross-posted from the Prop 8 Trial Tracker

That’s exactly what the American “Family” Association wants to do. In an email to their supporter list, the AFA called for Congress to impeach Judge Walker for failing to conduct himself with “good Behaviour”:

Yesterday (August 4), U.S. District Chief Judge Vaughn Walker  single-handedly overturned California’s Prop. 8, which elevated  protection for one-man, one-woman marriage to its state constitution.

In doing so, he frustrated the expressed will of seven million  Californians who went to the polls to shape their state’s public policy  on marriage. …

Fortunately, the Founders provided checks and balances for every  branch of government, including the judicial branch. Federal judges hold  office only “during good Behaviour,” and if they violate that standard  can be removed from the bench. Judge Walker’s ruling is not “good Behaviour.” He has exceeded his constitutional authority and engaged in judicial tyranny.

Judges are not, in fact, unaccountable. They are accountable to Congress, which can remove them from office. Impeachment proceedings, according to the Constitution, begin in the  House of Representatives. It’s time for you to put your congressman on  record regarding the possible impeachment of Judge Walker.

Where to begin? There’s just so much crazy that is genuinely difficult to choose just one nugget. Let’s first start with the popular vote issue.  I’m hesitant to bring  this up again, because really? Really people?

Let’s talk about this.  Do we really want everything up for a popular vote? I guess it’s easy to criticize when you are the one putting up other people’s rights for a vote. But, flip the script, and what does the AFA say about it when somebody puts an initiative on the ballot limiting the number of kids you can have. I mean, limited resources and all. It worked for China, right? Right, AFA?

The larger point is that some rights are sacrosanct. They are not privileges that are earned or that should be put for a plebiscite.  My relationship should not be disfavored because a majority of California voters get squirmish, or are fearful, or are baited into fear through a $40 million scare campaign.

This of course ties directly into the question of impeachment.  “good Behaviour” wasn’t intended to be some sort of generic “the majority doesn’t like you” catch-all.  After all, there are decisions made all the time that the majority disagrees with. Yet, we don’t impeach those judges.  Heck, the entire point of the judiciary was for judges to be a check on the tyranny of the majority.  If we go around impeaching our judges because they apply the constitution simply in a way we don’t like, the entire Article III power of the judiciary will be wiped away.

Of course, this isn’t all that the AFA has said on the matter. In a right-wing online publication, they suggested that this was all in self-interest. Because, you know, Walker is gay (and doesn’t have the good grace to hide it back like those pleasant closeted gays of generations past). I’ll point them to my earlier post, “Did They Know Justice Alito is Male?” Back then, I pointed out the irony that nobody was complaining when Justice Alito was writing a ridiculously sexist opinion in Lilly Ledbetter’s case:

We all have some mix of racial, geographical, socioeconomic and other  backgrounds. And they are all mixed up with who we are. We can’t take  those labels off no matter how independent or fair you are.  Yet some  will still see this as sort of bias.

So, did anybody comment about Justice Alito’s gender when he wrote the outrageous opinion in Ledbetter v Goodyear Tire that said that under the Civil Rights Act women could not sue after 180  days from the discriminatory decision, even if they didn’t know about  the decision for years? The decision that ultimately spurred the passage  of the Lilly Ledbetter Act because it was so egregious.

Can an African-American judge not rule an issue of race? A female judge not rule on issues of gender? These ideas, of course, are patently absurd, as is the charge that Walker should have recused himself.

Yet, AFA and their allies will continue to push for the impeachment of Judge Walker and of any 9th Circuit Judges that concur with the district court’s decision, and probably for any Supreme Court Justice who dares to do the same. For the time being, their aren’t enough right-wing zealots to really push this through Congress. But elections are right around the corner, and their are quite a few of said zealots lining up to enter the halls of power.

Will Congress really take the time, even with a Republican majority in the House, to impeach Judge Walker? It’s doubtful at best. After all, “good Behaviour” was never intended to reflect a merely unpopular decision, rather to serious personal failings that would compromise his ability to be a judge. Things like taking bribes, that sort of thing. In our history, only 14 judges have been impeached, with only 6 of them being convicted.  This is not to be done lightly, or for mere disagreements on issues for which reasonable minds can disagree.

But the AFA and their friends are on a rampage. They want blood, and they are going to demand that right-wing Representatives in Congress pick away for it.  I suppose this just reiterates the importance of our involvement in not just the judicial process, but always being mindful that we can never forget about the political process.

Well, today is the day.  Sometime this afternoon, we’ll get our decision in what will go down as one of the most anticipated decisions around these parts since…well…last year when the California Supreme Court upheld Prop 8 but allowed the existing marriages to survive. In many ways, these are amazing days to be alive.  No matter which way Judge Walker goes, this is history in the making.  It’s a small curve in the arc of history bending towards justice (hopefully more obviously, but perhaps only taking the long view.)

So, with that as background, what are we looking for today?  How do we win? How do we lose? And what defines a win?  Well, I said yesterday that I’m optimistic, but there’s more than one way to skin the cat here.  So, let’s just go through them, and I’m sure to miss something, so be sure to throw all my mistakes in my face in the comments. Let’s start with the downers.

1. LOSE – Prop 8 is a permissible act of the people acting legislatively.
   
   Well, I’m not sure how much I need to explain this one, but it’s the worst case scenario for us.  In this situation, Judge Walker would be saying that the people, acting as the state’s legislature, had a “legitimate” interest (any interest really) in regulating against marriage equality, and that Prop 8 was rationally related to that interest.  This is the so-called “rational basis” test.  Now, the Defense of Marriage Act recently failed that test, but that doesn’t mean Prop 8 couldn’t pass.
   
   Of course, this doesn’t mean the case is over, just that we are on hold as we move forward through the system
2. Win – The implementation of Prop 8 is unconstitutional.
   
   This is how we win, without getting everything we really want.  This would clearly be a win for our community in the state of California, but would provide relatively little precedent value for other states.  The basic rationale here would be that by allowing the 18,000 couples to be married, and not future couples, the state has violated the equal protection of those couples who were not able to wed.  This rationale was suggested in a couple of the amicus briefs filed on behalf of the plaintiffs.  It could be seen as something of a middle ground, but let’s be honest, it will not satisfy anybody who opposes marriage equality.  And it further muddies the underlying issues when what we really need is clarity.  Could it happen? Yes, it very well might.  But this rationale would be a lame attempt at Solomonic baby-splitting that would present more questions to be answered by other courts.
3. WIN – Prop 8 is a violation of the Equal Protection Clause of the 14th Amendment and/or the Due Process Clause
   
   This would be our ultimate victory, and really, what Olson and Boies are going for in this case.  As I presented above, there are two possible rationales, and I’ll discuss those below. But skipping over the logic, the net result would likely be the complete nullification of Prop 8.  However, Judge Walker is likely to issue a stay pending appeal, especially if he overturns Prop 8.  In other words, don’t make wedding plans just yet.

I shouldn’t quite leave that logic of our win hanging in the breeze quite so much, so I’ll pull a quote from Loving v Virginia to show you the Supreme Court’s logic in that case.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Loving is from an era when the Due Process Clause, especially substantive due process, was a bit more in vogue in the law.  If you’ve read much of the history of the era, you’ll know that the substantive due process clause was used to strike down restrictions on birth control in Griswold v Conn, and, ultimately, protected the right of women to choose in Roe v. Wade.  Though in recent history conservatives have made the infamous (and incorrectly decided) Dred Scott case the poster boy for substantive due process, its effects (as correctly applied) were to push America in the direction of tolerance.  

I’ll not give you the whole wikipedia version of substantive due process, but long story short, it protects fundamental rights generally.  But, as I said, it has fallen out of favor of late, and courts generally try to rely on the more stable equal protection clauses of the Constitution to provide a more concrete footing for their legal argument.  As we have discussed in these virtual pages on a number of occasions, there are three levels of equal protection scrutiny, rational basis, intermediate, and strict scrutiny. I went over those tests back in January, so I won’t rehash all of that now. But, I will say that a strict scrutiny of Prop 8 would hold ramifications for future challenges of other laws.  We would be able to more forcefully argue the case that states must show a compelling interest to discriminate based upon orientation, and that would mean a lot more in the way of wins for our side.

But, for now, this is just speculation.  The real thing is just around the corner.

Well, it looks like tomorrow is the big day. Judge Walker will finally issue a ruling in the federal Prop 8 litigation:

District Court Judge Vaughn Walker will issue a decision Wednesday on the constitutional challenge to California’s Proposition 8, the ban on same-sex marriage, according to a court announcement today.

Walker’s written order will be released electronically Wednesday – no hour was given – and will later be available for public review in federal courthouses in San Francisco, Oakland and San Jose.(SacBee)

I am actually fairly optimistic here that Judge Walker will strike down Prop 8, at least as far as the inequity between married same-sex couples and those who missed the cut-off.  That much, at the very least, seems to be something of a narrow decision that many judges like to make.  

However, Judge Walker seemed to be hinting at wanting to take a bigger stand during the closing arguments.  Now, hints are essentially meaningless. I might as well try reading my cranium for clues, but that optimism in me keeps rearing its head.

In legal terms, it all comes down to two questions:

Now, as I’ve mentioned in the past, there are basically three choices for the standard: “rational basis”, intermediate, and strict scrutiny.  Under strict scrutiny, getting a law that discriminates to pass constitutional muster is extremely difficult.  It would have to be narrowly tailored to an important state interest.  On the flip side, under rational basis review, the court need only find a rational basis for the discrimination for any state interest whatsoever.

Now, that last one sounds pretty broad. However, the Defense of Marriage Act (Section 3) was recently struck down under this standard.  In that case, the Court said that the federal government simply had no interest whatsoever in regulating marriage.  Now, this is slightly different, as we are talking about a traditional basis of state power and a state regulation. But all that is to say that even if Judge Walker uses the rational basis test, all is not lost.

The decision will appear on the Northern District’s website some time tomorrow.