This Is Why They Build Courthouses

July 6, 2010 at 3:22 pm 86 comments

by Robert Cruickshank

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.

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.

Entry filed under: Background, Press, Trial analysis.

Iceland’s Leader Gets Married Hawaii Governor Vetoes Civil Unions Bill

86 Comments Add your own

  • 1. John  |  July 6, 2010 at 3:34 pm

    Oh, goody, another Gay Uncle Tom!

    Do I understand correctly from Magg’s piece that Rauch is legally married yet willing to throw anyone who isn’t under the bus?

    Shouldn’t his editorial headline have been, “I Got Mine; Screw You!”

    Reply
    • 2. Robert Cruickshank  |  July 6, 2010 at 3:37 pm

      Yep, Rauch is indeed legally married to his same-sex spouse. He explains that in his op-ed, but I felt like focusing on his legal arguments – knowing that you guys in the comments would do an excellent job on that aspect.

      Reply
      • 3. John  |  July 6, 2010 at 3:39 pm

        I guess he’s one of those mystery gay employees of NOM.

        Reply
      • 4. Straight Grandmother  |  July 6, 2010 at 4:30 pm

        Thank you Robert. You are an excellent addition to this website. I like your articles, without slaming anyone (really I am not) your writing is a cut above what we have been getting. Now carry my water will ya? Why can’t we post topics? At least let Kathleen post topics. This President is not doing enough for us, I wish Hillary would have won, she would certainly have been no worse than what we have now and possibly better. If I could do it all over again, knowing what i know now, I would ahve voted for Hillary. These little table scraps from Obama are not enough. Chump change.

        Reply
    • 5. Ronnie  |  July 6, 2010 at 3:43 pm

      hmmm….@$$whole….that’s all I have for now….<3…Ronnie

      Reply
    • 6. fiona64  |  July 6, 2010 at 4:37 pm

      I didn’t see him so much as being Uncle Tom as I did any of Ayn Rand’s fictional heroes: “I got mine, so screw you.”

      Love,
      Fiona

      Reply
      • 7. Ben  |  July 6, 2010 at 4:45 pm

        Oh, Ayn Rand and her belief that the élite were the only ones to produce anything of value …

        My favourite quote on the topic :
        « There are two novels that can change a bookish fourteen-year old’s life: The Lord of the Rings and Atlas Shrugged. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs. » — John Rogers

        On-topic, then ; why does such a mentality exist, in anyone in our situation ?

        Reply
      • 8. fiona64  |  July 7, 2010 at 8:07 am

        I know one gay Objectivist/Libertarian … who glossed over Ayn Rand’s absolute hatred of gay men and lesbians. He didn’t seem to get that there was no room at Galt’s Gulch for him.

        Love that quote, BTW; I use it frequently.

        Love,
        Fiona

        Reply
      • 9. fiona64  |  July 7, 2010 at 8:10 am

        In response to the “Why does this mentality exist in those in our situation,” I can only answer that I do not know.

        At one point in my career, I was elected the youngest-ever chair of the Federal Women’s Program Committee for the DoD agency that employed me. Part of our mission was to help women get out of traditional pink-collar employment and into more lucrative fields.

        My boss, also a woman, sneered at the FWPC. This is an actual quote: “It took me 20 years to get my GS-9; the rest of you women’s libbers should have to do it that way, too.” (FWIW, I make more money as an executive assistant than I did as a GS-9 …)

        The idea of offering another person a hand up so that they wouldn’t have to struggle the same way was alien to her. I do not understand that mentality at all.

        Love,
        Fiona

        Reply
  • 10. ĶĭŗîļĺęΧҲΪ  |  July 6, 2010 at 3:51 pm

    Finally a new post!

    (ʍou ɹoɟ ɓuı̣qı̣ɹↄsqns ɿ̠snſ̣)

    Reply
    • 11. JonT  |  July 7, 2010 at 12:26 pm

      (Εγγραφή)

      Reply
  • 12. Mark  |  July 6, 2010 at 3:51 pm

    How would Rauch feel if they went one step further, and invalidated those same-sex marriages that were allowed in the past? I am sure he would be singing another tune.

    Reply
    • 13. nightshayde  |  July 6, 2010 at 4:41 pm

      He might quietly accept a domestic partnership or civil union. *shrug*

      Reply
  • 14. Richard A. Walter (soon to be Walter-Jernigan)  |  July 6, 2010 at 3:57 pm

    Thank you, Robert. This is a very well written piece. I find it rather disheartening that a man who is already legally married to his husband would seek to deny this same thing to the rest of us. As you say, we need to continue to build the momentum so that we do not lose ground regardless of Judge Walker’s ruling.

    Reply
  • 15. Kathleen  |  July 6, 2010 at 4:04 pm

    I apparently didn’t hear the same statement by Kagan as Rausch did. I didn’t understand here claim that a “respect [for] the choices made by the American people” means it is inappropriate for the courts to strike down a law enacted by popular vote when that law runs afoul of the constitution. Such a claim flies in the face of the very purpose of the judicial branch and I can’t believe that Kagan’s long history of legal scholarship would lead her to conclude that an unconstitutional law should stand simply because it is popular.

    For anyone who has the time, you can see Rausch and Blankenhead discuss the issue of marriage equality (or “gay marriage” as they both like to call it) here:
    http://bloggingheads.tv/diavlogs/353

    Reply
  • 16. Alan E.  |  July 6, 2010 at 4:16 pm

    “Same-sex marriage may indeed be a civil right, but not all civil rights demand immediate judicial intervention”

    ALL civil rights demand immediate judicial intervention. ALL!

    Reply
  • 17. Sagesse  |  July 6, 2010 at 4:23 pm

    Robert, thank you thank you thank you. Since I read both pieces of defeatist, Uncle Tom, ‘the sky is falling’ rhetoric, I have been pacing and muttering to myself. Slow news week, so the press has to find something controversial to say.

    Reply
  • 18. Alan E.  |  July 6, 2010 at 4:28 pm

    imposing gay marriage nationwide

    Nobody is being forced to get married to someone of the same sex, nor is anyone being told that they have to even like it. You just can’t take it away from us.

    Reply
  • 19. Alan E.  |  July 6, 2010 at 4:28 pm

    Crap meant to subscribe

    Reply
  • 20. Bolt  |  July 6, 2010 at 4:28 pm

    Kudos to the OP for articulating this very sophisticated rebuttal to two absurd weekend posts. Screw the religious bigots. They’re always in backlash mode. We lead, they follow.

    Reply
  • 21. Ben  |  July 6, 2010 at 4:35 pm

    I read Rausch’s column this weekend, and thought — wow, you just don’t see, do you? I managed to miss that he’s married to another man … which puts it in an entirely different perspective. He’d feel right at home with the Tea Party, wouldn’t he, with the « I’ve got mine » attitude — except that they’re homophobic. Oh well.

    My other thought was the same as others’ here ; the term that comes to mind is Tyranny of the Majority, and that’s what the courts exist to stop. Why do these people hate our Checks and Balances system?

    Reply
    • 22. nightshayde  |  July 6, 2010 at 4:44 pm

      They hate checks and balances because checks & balances counteract extremism.

      Reply
      • 23. Ben  |  July 6, 2010 at 4:54 pm

        I guess that is both the beauty and the flaw in our system. We have the method to find the safe path between crises ( damn, I’ve been reading too much Dune recently … ), but at the same time we need to keep from avoiding the problem entirely, or our situation erodes. I may just have too much faith in people ; that comes as a surprise to me, really.

        Reply
    • 24. JonT  |  July 7, 2010 at 12:32 pm

      Yeah Ben, I missed that too. I’m guessing he’s afraid that if things go wrong – say that SCOTUS says a firm ‘NO!’ to SSM, then he and his husband will just have to settle for second class best status.

      Why do these people hate our Checks and Balances system?

      Because it sometimes works against them. Damn activist judges! :)

      Reply
  • 25. Eden James  |  July 6, 2010 at 4:40 pm

    Excellent post, Robert. Just excellent.

    I’m going to share it with a bunch of folks now.

    — Eden w/ the Courage Campaign

    Reply
  • 26. Ray in MA  |  July 6, 2010 at 4:42 pm

    Robert Cruickshank EXCELLENT analysis!

    Why isn’t this an OP-ed in the New York Times and the Washington Post ?

    Reply
  • 27. Straight Ally #3008  |  July 6, 2010 at 5:05 pm

    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.

    Robert, this point completely escaped me. Yet another parallel between Prop 8 proponents and creationists. “Teach both sides,” “Teach the controversy,” “Equal time” – sound familiar? An appeal to our sense of fairness to impose something that isn’t fair. As I’ve said before, not all those against marriage equality are creationists, but as far as I can tell all creationists are against marriage equality.

    Reply
  • 28. Richard W. Fitch  |  July 6, 2010 at 5:16 pm

    What is the tentative date for Judge Walker’s decision?

    Reply
    • 29. Richard A. Walter (soon to be Walter-Jernigan)  |  July 6, 2010 at 5:17 pm

      I don’t think he has given that yet. It could be anytime from now to the end of time.

      Reply
      • 30. Ben Lewis  |  July 6, 2010 at 5:42 pm

        Hopefully that’s closer to the now than the end of time.

        Reply
      • 31. Richard A. Walter (soon to be Walter-Jernigan)  |  July 6, 2010 at 5:44 pm

        That is what I am hoping also. But there has not even been an announcement from Judge Walker regarding the media coalition’s request for at least 48 hours advance notice of the ruling’s announcement to give them time to have reporters on hand.

        Reply
      • 32. ĶĭŗîļĺęΧҲΪ  |  July 7, 2010 at 2:39 am

        Maybe he’s waiting for the Supreme Court to get its new Justice? ;)

        Reply
      • 33. Felyx  |  July 7, 2010 at 11:05 am

        I though recognition of gay marriage was supposed to cause the end of time…no?

        :P Felyx

        Reply
      • 34. nightshayde  |  July 7, 2010 at 11:18 am

        Perhaps he has a vacation scheduled and wants to make sure to get the vacation before time ends. :D

        Reply
      • 35. Kathleen  |  July 7, 2010 at 11:23 am

        I hadn’t taken this into consideration. Should we be saying goodbye to all our friend and family? I’m at least going to take it as a cue to stop doing housework – immediately.

        Reply
  • 36. Mandy  |  July 6, 2010 at 5:41 pm

    I totally cringed when I read that Kagan said this in her opening statement “ But the court must also recognize the limits on itself and respect the choices made by the American people.”

    But then again thought that the American people are not just the bigots and the haters but also those that crafted and voted in the Constitution, bill of rights and the 14th amendment. I respect their choices, well maybe what i believe their choices where.

    Reply
  • 37. Kathleen  |  July 6, 2010 at 5:46 pm

    Gov Lingle is expected to announce her intentions for the Civil Union bill in Hawaii at a press conference in about 15 minutes. Anyone know of a site that will be live streaming the announcement?

    Reply
  • 41. Kathleen  |  July 6, 2010 at 6:02 pm

    Available here:
    http://www.khon2.com/content/mediacenter/livestream.aspx?videoId=5102&navCatId=4

    Reply
    • 42. Kathleen  |  July 6, 2010 at 6:07 pm

      The “live feed” keeps looping a section before she makes the announcement, but I’m seeing twitter feed that she intends to veto.

      Reply
    • 43. Kathleen  |  July 6, 2010 at 6:14 pm

      Thanks Ronnie. I’m watching the feed now.

      Great reasoning, governor. (sarcasm). Once again – deciding to put civil rights to a popular vote and cloaking that decision in the guise of ‘fairness.’ What a steaming stinking pile of crap.

      By that reasoning, we should never have struck down segregation in the south until the majority of voters decided they had tired of it.

      Reply
      • 44. Ronnie  |  July 6, 2010 at 6:24 pm

        shame on her….she will see the effects of her anti-American behavior….their economy will crumble, tourism will fall….ALL anti-gay states are falling apart…and Hawaii will follow….so sad…. : ( …Ronnie

        Reply
      • 45. Richard A. Walter (soon to be Walter-Jernigan)  |  July 6, 2010 at 6:32 pm

        And I find it very difficult to believe that her own opinion of SSM and her religious beliefs had no part in her decision.

        Reply
      • 46. Richard A. Walter (soon to be Walter-Jernigan)  |  July 6, 2010 at 6:36 pm

        And BZ said that all Rainbow Tribe Members (LTBGQQIA) should boycott Hawaii and not go there for vacations until they make this right. And I agree.

        Reply
      • 47. Ray in MA  |  July 6, 2010 at 7:14 pm

        I AGREE: a steaming stinking pile of crap was all that their mindless selfsh moron governor could come up with.

        Keep her in mind when we win at the Suprem Court of the United States.

        Reply
  • 48. Straight Grandmother  |  July 6, 2010 at 6:15 pm

    It was the influence ont he Baptists that sunk Hawaii. In minute I will go get that article from their website how they described their H8te campaign. I just had an awful thought. Do you suppose the religions are in kahoots, lemme play this out for you. Do you think they have carved up the country with each one agreeing to focus on certain states? Now I am starting to sound like Ronnie (kidding Ronnie kidding). I’ll be back with that article on what the Baptists did in Hawaii. I kinda wonder though, they are awfully organized and tight, united, united against us. It would not surprise me if they each voluntered to focus on certain states.

    Reply
    • 49. Kathleen  |  July 6, 2010 at 6:26 pm

      Hawaii was the first major battleground in the fight for marriage equality. In 1993, the Hawaiian Supreme Court said the state must show a compelling reason for denying marriage to ss couples. It was the right’s fear of the ultimate outcome of this case and that other states would be expected to honor ss marriages from Hawaii that gave rise to the organized movement from people like NOM (i.e., Mormons) and led to passing DOMA. And the rest is history….

      Reply
  • 50. Sarah  |  July 6, 2010 at 7:02 pm

    This is my first time commenting on here, but I have been following this site since the trial began. I think this is one of the most compelling legal arguments that I have read in a while. Putting the focus onto the 14th amendment makes me wonder how the plaintiffs could lose this case! (Though I do live in reality and know the fallacy of humans at times.) I agree 100% and hope that those is power will see the light. As somebody here mentioned, our three-pronged system seeks to protect the minority from the tyranny of the majority. We would certainly be much further behind on all civil rights fights if “the people” had been given the power to decide on the desegregation and interracial marriage fronts years ago.

    (Also, what is the reason for people to say “subscribing” on here?)

    Reply
    • 51. Richard A. Walter (soon to be Walter-Jernigan)  |  July 6, 2010 at 7:08 pm

      That is because in order to subscribe to the comments that follow, you have to enter a comment. Sometimes, if you see “subscribing” immediately after someone has posted a comment, it means that they have forgotten to click on the subscribe box, but they did not realize that until after they sent the first comment. I am very bad about that.

      Reply
    • 52. ĶĭŗîļĺęΧҲΪ  |  July 7, 2010 at 2:49 am

      And sometimes we subscribe just to have all the comments emailed to us, before we have something to comment ourselves.

      Welcome, Sarah! You are the one we usually jokingly call the lurker — someone who reads but never comments till a certain point.

      Reply
  • 53. Shun  |  July 6, 2010 at 7:09 pm

    I’m absolutely appalled by Hawaii’s gov’s veto. I was expecting her to veto it, but in the end, it still hurts. Reading the anti-ssm/civil union people’s comments also hurt. They won’t suffer for our love for our partners. They have nothing to lose! ARGH

    And for her to say to leave it to the voters…yea…it certainly makes sense for the majority to discriminate against the minority.

    Reply
    • 54. JonT  |  July 7, 2010 at 12:40 pm

      Yeah, I agree with you Shun. Of course, once the voters start to actually vote for SSM (hey, it could happen eventually), then that will no longer be the cry.

      Then it will be, ‘leave it to the legislatures’, or ‘leave it to whoever/whatever agrees with us’. God says so!

      Whatever.

      Reply
  • […] this article: This Is Why They Build Courthouses « Prop 8 Trial Tracker Tags: argument-flies, face, maggie, maggie-gallagher, permit-discrimination, political-facts, […]

    Reply
    • 56. JonT  |  July 7, 2010 at 12:41 pm

      Cool. Blogspam.

      Reply
      • 57. Ben  |  July 7, 2010 at 12:55 pm

        Well, they don’t have backtrack configured, so there’s no way to post it other than as a comment.

        Reply
      • 58. JonT  |  July 7, 2010 at 1:07 pm

        Ahh. It just seemed like a lame way to get people to go to your website without actually participating in the conversation here.

        My opinion only of course. :)

        Reply
  • 59. Kathleen  |  July 6, 2010 at 7:57 pm

    As a friend on facebook posted… “We can’t even get second class treatment?”

    Reply
  • 60. Dave  |  July 6, 2010 at 8:20 pm

    When this moves to the 9th court of appeals could we see other lawyers joining in from other states since it could affect their bans as well?

    Reply
    • 61. Kathleen  |  July 6, 2010 at 8:50 pm

      I wouldn’t expect so. Olson and Boies have all the legal team they need. We may see amicus briefs from other states, but remember, despite the potential impact, on its face this case is challenging a California specific law.

      Reply
  • 62. Shun  |  July 6, 2010 at 9:40 pm

    Equality for All released the polls they took as prop 8 was about to be voted on.

    http://www.eqca.org/site/pp.asp?c=kuLRJ9MRKrH&b=6096765

    Interesting read

    Reply
  • 63. Owen  |  July 7, 2010 at 12:41 am

    *sigh* That is a terrible shame about Hawaii, but let’s just hope that Neil Abercrombie can get it done next year if he wins in November.

    Reply
  • 64. AB  |  July 7, 2010 at 1:03 am

    I wrote an open letter to Jonathan Rauch, responding to his piece. I sent it to him via email and I posted it on my facebook profile. I hope we get a vigorous debate on this.

    Reply
  • 65. AB  |  July 7, 2010 at 1:09 am

    In fact, now that I think about it, has anyone asked Jonathan Rauch if he would defend the position that gays and lesbians should be prevented from ANY protection by the law? Because that was the Amendment in Colorado that was voted for. According to him, should the Supreme Court not have decided as they did?

    Reply
    • 66. Straight Grandmother  |  July 7, 2010 at 9:19 am

      I agree AB, his is such a d*ck head. Happily married to his ss spouce, making money off of our backs taking the position that we don’t deserve any civil rights. He is a benidict Arnold for sure.

      Reply
  • 67. Shun  |  July 7, 2010 at 1:33 am

    In other news, Atlanta, Georgina became the 21st city to pass a resolution in support of the Uniting American Families Act (UAFA). As you may know, it is the immigration bill with the most co-sponsors that call for binational couples to be able to sponsor their foreign partner.

    Here’s a complete list of the cities (and one state) so far:
    • State of California

    • City of Albany, NY
    • City of Atlanta, GA
    • City of Berkeley, CA
    • City of Binghamton, NY
    • City of Cambridge, MA
    • City of Campbell, CA
    • City of Chapel Hill, NC
    • City of Chicago, IL
    • City of Ferndale, MI
    • City of Hartford, CT
    • City of Los Angeles, CA
    • City of Miami Beach, FL
    • City of Minneapolis, MN
    • City of New Orleans, LA
    • City of New York, NY
    • City of San Francisco, CA
    • City of St. Louis, MO
    • City of Seattle, WA
    • City of Troy, NY
    • City of Washington, DC
    • City of West Hollywood, CA

    If you don’t see your city and can help out, please E-mail tom@out4immigration.org to help move UAFA forward in your State.

    Reply
    • 68. Franck  |  July 7, 2010 at 3:09 am

      On second thought, I don’t see my partner’s home city in that list. I’ll ask him to see about that next time we talk.

      Reply
    • 69. Straight Grandmother  |  July 7, 2010 at 9:22 am

      Great Shun, thank you for posting and never hestitate to re-post the same information. Not everyone who comes here reads every thread and you are providing critical important information, it deserves repeating. No one will be offended by a repost asking for help. I am very sympathetic to the cause (although hetro obviously) because my husband immigrated to the USA from france and became a naturized citizen. He did have his green card before we met but I am VERY sympathetic to those who don’t and are in love. You want to be with the one you love, it is that simple.

      Reply
      • 70. Shun  |  July 7, 2010 at 4:30 pm

        Thank you SG!
        I’m always touched by your kind words. :*)

        Reply
  • 71. Mouse  |  July 7, 2010 at 2:47 am

    Dear Judge Walker,

    Today is my birthday, which makes it an excellent day for you to strike down the discrimination which my fellow Californians think is their right to impose upon me,

    Olson and Boies have made a rock solid case. The other side has nothing but the deep-seated animus their position is founded upon. “We don’t need evidence for that.”

    Justice delayed is justice denied. All I want for my birthday is equal treatment under the law.

    Reply
    • 72. Kathleen  |  July 7, 2010 at 5:35 am

      Happy Birthday, Mouse.

      Reply
    • 73. fiona64  |  July 7, 2010 at 8:14 am

      Happy birthday, Mouse!

      Love,
      Fiona

      Reply
    • 74. Richard A. Walter (soon to be Walter-Jernigan)  |  July 7, 2010 at 8:17 am

      Happy birthday, Mouse! And I agree. Judge Walker rendering a verdict striking down Proposition H8 would be an absolutely WONDERFUL birthday present.

      Reply
    • 75. nightshayde  |  July 7, 2010 at 9:31 am

      Happy Birthday, Mouse!

      *great big birthday squeeze*

      Reply
  • 76. James Sweet  |  July 7, 2010 at 5:39 am

    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

    Strawman!

    Nobody has said that a civil rights claim automatically trumps majority preference. However, the other side has often implicitly argued that majority preference should always be respected, e.g. referring to “activist judges” overturning “the will of the people”. The point out side is making when we ridicule those ridiculous characterizations is that a civil rights claim can trump majority preference. A bunch of ignorant idjuts on the other side have failed to understand that.

    THE BAD GUYS: All the Gitmo detainees are guilty, otherwise why would they have been detained!

    THE GOOD GUYS: Um, actually it’s quite likely that some of them are innocent.

    SOME OTHER TOOL: Liberal absolutists say that *all* the Gitmo detainees are innocent!

    (I actually read someone making that assertion once, for real…)

    THE BAD GUYS: That can’t possibly be a cow! It doesn’t have spots!

    THE GOOD GUYS: Actually, many cows don’t have spots.

    SOME OTHER TOOL: Anti-spot absolutists say that spotted cows don’t exist!

    Reply
  • 77. James Sweet  |  July 7, 2010 at 5:47 am

    he seeks a moderate position which, like most moderate positions, actually serves the ends of the right-wing.

    Very true. And of course, that statement could only be true if the right-wing was usually wrong. But yes, indeed.

    Creationism vs. evolution?
    Global warming?
    Torture of detainees?

    Yep, the middle ground is dead wrong in every case, and it also serves right-wing interests.

    In fairness, there are a few issues that are not straight right/left where mainstream journalists also tend favor the false middle ground (e.g. vaccines — although this is changing, as the MSM is waking up to the fact that every prominent anti-vaccine advocate is either eminently unqualified or an outright fraud). One could even argue that 9/11 truthers are somewhat more concentrated on the Left (though it is not a uniquely left-wing thing by any means).

    Personally, I do take the middle ground on the 9/11 truther issue: I think the North tower was brought down by controlled demolition as part of a secret government conspiracy, while, in a startling coincidence, Islamic terrorists crashed a plane into the South tower at roughly the same time.

    Reply
  • 78. ĶĭŗîļĺęΧҲΪ  |  July 7, 2010 at 5:47 am

    I am very disappointed in The New York Times and The Washington Post!  After something like that I would seriously consider canceling my subscription if I had one.

    Who gets to decide?” is, of course, the right question, which, however, should be answered with a serious consideration of the US Constitution, of same-sex marriage merits, of the ongoing discrimination against the whole class of people for no good reason, and of reasons why the people really vote the way they vote on this issue state by state.  And this is what this case is really all about: we argue that the decisions people made time and time again at the ballot box to ban same-sex marriage were driven by animus, false fears instilled in them by religious indoctrinations, or simple lack of understanding what homosexuality really is and that it is nothing that should be feared or demonized.

    So, really, who gets to decide?  A massive crowd of angry people who do not have the access to all the pertinent information (remember why Defendant-Inter-wieners really didn’t want the trial to be televised and why now they desperately want the Plaintiffs to return the footage of the trial and destroy all the copies?)?  Or the law professionals who’s job is exactly to prevent any unfair discrimination that, on top of that, serves no legitimate state interest, even if the majority of people want this discrimination to go on?

    Have we lost any sense of what liberty, equality and justice for all mean?
    There is NO liberty, there is NO equality, there is NO justice for anyone until EVERYONE can enjoy them!

    ᴥ       ᴥ       ᴥ

    And one more thing about imposition.  It’s not the gay people who want to “impose” same-sex marriage nationwide!  It’s the anti-equality, anti-American people who try to impose “one man, one woman” definition of marriage on all of us nationwide!  And this imposition harms us by not allowing us to enter into state-recognized marriages with people we love, whereas our wider definition of marriage would not take away anyone’s right to marry!  How fair is that?

    It is time for America to join the 21st century and to stand up for the real values people really voted for and every generation since then supported them wholeheartedly — values expressed in and protected by the Constitution of the United States!

    This is why we have the Courts!
    This is why we have the Constitution!

    Kirill,
    25-year-old Russian gay man

    Reply
  • 79. Jeffrey D.  |  July 7, 2010 at 6:33 am

    Unfortunately, the ideas espoused by Rauch et al are quite comforting and popular. Even people who would otherwise never consider themselves bigots might likely accept this bigoted and deeply flawed argument because it sounds plausible.

    Often, even the most horrific and morally corrupt arguments can be propagandized so that good people do nothing. Be a good sympathizer, Rauch, you won’t feel bad until after the Allies storm the bunker.

    Reply
    • 80. fiona64  |  July 7, 2010 at 8:16 am

      Throughout history, there have been collaborators any time there is an occupation.

      I guess that Rauch is no different in that regard …

      Love,
      Fiona

      Reply
  • 81. Martin Pal  |  July 7, 2010 at 5:03 pm

    Thanks for this article. I had read Rauch’s commentary a couple days ago and couldn’t put my finger on how to say what I felt about it and this article is just what I needed to read. I just do not understand how his thinking on an issue that is directly related to his own being can materialzie into something that would actually harm his own self-worth. I don’t get it.

    Someone above said they emailed him. Where? I looked for awhile yesterday and oculdn’t find anyplace to do so.

    Sigh.

    Reply
  • 82. Kathleen  |  July 7, 2010 at 5:10 pm

    At this website:
    http://www.jonathanrauch.com/

    bottom right, a link for “email me”

    Reply
  • 83. Roger Stephens  |  July 8, 2010 at 11:21 am

    Like many readers here, I was totally blindsided by Mr. Rauch’s op-ed piece. I wondered how he even got his job at the Brookings Institution, and how he could live in a situation where his marriage instantly dissolves whenever he crosses into Virginia.

    No, anyone who has spent a few weeks in law school knows that civil rights are not for the people to decide. Rauch took something that Elena Kagan said for the purposes of her confirmation and spins a whole weird theory to support his discriminatory ideas. Thanks for this rebuttal. It clarified my thoughts so well. I’m not sure what Mr. Rauch’s education is, but he obviously knows nothing of Constitutional law.

    Reply
  • 84. Kathleen  |  July 8, 2010 at 12:51 pm

    I only just put it together that Rausch is the co-author, with David Blankenhorn, of the NYT op ed piece marriage ‘compromise’
    http://www.nytimes.com/2009/02/22/opinion/22rauch.html

    Reply
    • 85. John  |  July 8, 2010 at 1:48 pm

      What an f’ing ridiculous proposal they make!

      Federal recognition for legally wedded/unioned same-gender couples ONLY if the state where the legal ceremony took place has strong laws for religious exemption regarding same-gender marriage?

      So if, say, Alaska made same-gender marriage legal but the religious exclusion laws were not stringent enough in the federal government’s eyes, the marriage would not be recognized at the federal level?

      So a whole new set of marriage/civil union stati?

      For example:

      Barry and Andrew marry in MA and the fed approves of MA law and recognizes Barry and Andrew’s marriage.

      Maude and Serena marry in IA, but the fed does not feel IA’s laws are strong enough, so they punish Maude and Serena by not recognizing their marrage.

      Yeah, yeah that makes a lot of sense.

      NOT

      Reply
  • 86. Dave P.  |  July 8, 2010 at 3:21 pm

    This whole “compromise” argument is absurd. What they are describing is NOT a ‘compromise’.

    If a group of people are oppressing a minority, like if they are not allowing minorities to board a public bus, should we just let them keep doing it but not as often, or let them keep doing it but the minorities have to sit in the back of the bus, and call this a ‘compromise’? What a load of BS. Hurting someone a little less than you did before is NOT a compromise.

    Reply

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