Court looks unprepared to make a sweeping decision for marriage equality

by Brian Leubitz

UPDATE: I have updated the post with the complete audio from the oral arguments. I also included some snips that the LA Times posted as well. You can select any of the clips to listen to it directly, or click down to the bottom to listen to the whole argument.

Any decision is still months away, but today’s oral argument did give some strong clues that the Court, and Justice Anthony Kennedy particularly, is not ready to make any big decisions one way or another. From Tom Goldstein at SCOTUSBlog:

The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure.  These likely include not only more liberal members but also the Chief Justice.  If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy.  For the more liberal members of the Court, there was no clarity on how broadly they would rule.

Any ruling would likely end up with the 9th Circuit’s decision being vacated and Judge Vaughn Walker’s District Court decision striking down Prop 8 as being the last word on this case. The practical effect of such a muddled ruling would be marriage equality in California, but the rest of the country having to wait a few more years.

Despite 58% of Americans supporting marriage equality is not enough, the Court has learned to be a bit timid on these dramatic issues. Perhaps there will be a case in a few years that eventually ends marriage discrimination in all 50 states, but it might not be this one. At any rate, the current dramatic upsurge in support for gay rights will eventually make this issue quaint. But for now, perhaps we’ll end up with a few more years of the fight.

Lyle Denniston, also at SCOTUSBlog, has a good recap of the argument.

Additional Links:

Curated Audio Explanation from Alliance for Justice

Tom Goldstein, SCOTUSBlog, Getting to five might be difficult

Kate Kendall, Executive Director of National Center for Lesbian Rights

Makes argument for marriage as a “fundamental right”

by Brian Leubitz

Attorney General Kamala Harris (disclosure: I worked on her 2010 campaign) has always been a stalwart defender of marriage equality, and has appeared in many forums on the issue. Her appearance on CNN’s morning show with Candy Crowley was much the same. You can view that segment to the right.

The Prop 8 case can go a number of ways. The Court can strike down Prop 8 for California alone, along the same lines as the 9th Circuit. They could strike down bans on same-sex marriage more generally. Or they could reject the case on “standing” grounds, which would mean that the Prop 8 proponents did not have the right to appeal the decision. That would mean that Judge Walker’s decision at the district court level would stand. What that would mean for same-sex marriage bans more generally would be up for interpretation.

And of course, the Court could simply decide that marriage equality is not a matter of equal protection. But, as our Attorney General argued so forcefully here, the Court has called marriage a fundamental right nearly 20 times in its history. And to uphold Prop 8 would mean that Equal Protection simply does not apply to one class of citizens.

Now, there is much more to the case than that. I’d recommend the Equality on Trial team, as they’ve already got some good stuff online, and will be following the case from DC all this week as we get the oral argument.

Over the flip, you’ll find the other CNN segment with AG Harris, where they discussed gun control and immigration.

New PPIC Poll shows voters want HSR and water projects on the cheap

by Brian Leubitz

Everybody likes getting stuff. Whether it is a free smoothie or a shiny new high speed train. However, most of those everybodies are not so into paying for it. At least, that’s what we hear from the latest PPIC numbers):

Voters passed a $10 billion bond in 2008 for the planning and construction of high-speed rail. Today, when read a description of the project and its $68 billion cost estimate, 43 percent of likely voters favor it and 54 percent are opposed. Last March, when the estimated cost was $100 billion, responses were similar (43% favor, 53% oppose). When those who are opposed are asked how they would feel if the cost were lower, overall support rises to 55 percent. Most (59%) say high-speed rail is important to the state’s quality of life and economic vitality (32% very important, 27% somewhat important).

“Majorities of likely voters would favor the water bond and high-speed rail if the price tags on these big-ticket items were reduced,” says Mark Baldassare, PPIC president and CEO. “Californians’ continuing concerns about the economy and the state and federal budgets make planning for the future a difficult process.” (PPIC)

The water bond numbers are pretty similar, with a 42/51 split. These numbers aren’t really surprising. It’s like asking a kid if they’d like some gum for a dollar, and then asking how about a quarter. Sure, they’d prefer it at a quarter, even more than the pricey gum. But, stuff costs money, and ultimately, we can’t go over and over these decisions. The HSR bond passed, and now we have to look at how we can build an efficient system.

There were a bunch of other numbers thrown in with this extensive poll. Brown is at 49%, the Legislature at 34% (a big jump since we got rid of the 2/3 budget), and only the alcohol surtax has a majority among revenue ideas. But, dropping down the poll a bit, I found the numbers on reforming the initiative system very intriguing.

A majority of likely voters (62%) are satisfied with the way the initiative process is working, but most of them (55%) are only somewhat satisfied. Three-fourths (74%) say the process needs changes (36% major changes, 38% minor changes). Only 19 percent say it is fine the way it is. Asked about three changes that have been suggested, overwhelming majorities support each: 84 percent favor increasing public disclosure of funding sources for signature gathering and initiative campaigns, 78 percent favor having a period of time in which the initiative sponsor could meet with the legislature to see if there is a compromise solution before putting a measure on the ballot. And 77 percent favor having a system for reviewing and revising proposed initiatives to try to avoid legal issues and drafting errors. Each of these three ideas has strong support across party lines.

I was actually a bit surprised at the high number on satisfaction, but that seems to run counter to the desire for change. The changes tested are all relatively minor, but perhaps with a couple of them, the process could become a little less of a free for all for the big money interests.

Check the full poll for more information at the PPIC’s website.

San Francisco has been there from day one

By Brian Leubitz

Back in 2004, Gavin Newsom was not a popular dude in Democratic circles. Well, scratch that, he was an enormously popular dude in almost all circles in San Francisco, with approval ratings over 80%. But, take a few steps out of the SF bubble, and Democrats were seething over what many saw as the reason for John Kerry’s loss in 2004. From the New York Times in 2004:

Some in the party were suggesting even before the election that Mr. Newsom had played into President Bush’s game plan by inviting a showdown on the divisive same-sex-marriage issue.

Most of the talk has been behind closed doors. But when Senator Dianne Feinstein, a fellow Democrat and Newsom supporter, answered a question about the subject at a news conference outside her San Francisco home on Wednesday, the prickly discussion spilled into the open.

“I believe it did energize a very conservative vote,” Ms. Feinstein said of the same-sex marriages here. “I think it gave them a position to rally around. I’m not casting a value judgment. I’m just saying I do believe that’s what happened.”(NYT)

My oh my, have times changed. John Kerry had more than just one reason for his loss in 2004, but looking back, Gavin Newsom just looks like a leader who took a step that, while perhaps one step ahead of the institutional leadership of his party, was just leading where the country was already heading. To this day, Newsom’s marriage activism has given him credibility with the LGBT community, as well as the general Democratic base. It made him a national name, even if it made him a bit unpopular with some big names at the time.

But through all that, San Francisco’s work for marriage equality was about more than just the ceremonies at our beautiful City Hall. The City also directly took on the injustice in court. And for the better part of a decade, the City Attorney and his staff have been in on every legal case about California’s marriage inequality.

Nine years ago, city officials here sued to strike down a state ban on same-sex marriage. It was the first government challenge to such a law, and it set in motion a legal chain reaction that gave rise to a momentous Supreme Court case to be argued next Tuesday. …

“We’re defense lawyers,” Dennis J. Herrera, the city attorney, said in his office in San Francisco’s palatial City Hall. “We defend laws that are on the books. And we got a lot of heat at the time for stepping out of that traditional defense role.”

In the years that followed, Mr. Herrera’s office – which now includes five former Supreme Court law clerks, more than some major law firms – has been involved in every phase of the legal war over same-sex marriage in California.

Since that time, the California Attorneys General, Brown and Harris, have followed the City’s lead in calling for the reversal of Prop 8. And President Obama’s “evolution” on marriage equality has recently extended to the Solicitor General filing a brief with the Supreme Court against Prop 8. Would that have happened without the San Francisco leadership? Maybe, but SF gave the rest of the nation a kick in the pants and the motivation for the rapid change on the question of marriage equality that we are at now.

In the most recent polls, support for marriage equality hit 58%. And Republican elected leaders are jumping as far away as possible from NOM’s sinking ship. Apparently with all of the GOP introspection these days, that is supposed to make them hip, or cutting-edge or something.

But real leadership involves real risks. San Francisco’s leaders took those risks from Day one, and have been there ever since.