ted-olson1Wow:

Former U.S. solicitor general Theodore B. Olson and David Boies, who argued opposite each other in Bush v. Gore, are now teaming up to “represent two same-sex couples filing suit after being denied marriage licenses because of Proposition 8. Their suit, to be filed in U.S. District Court in California, calls for an injunction against the proposition, allowing immediate reinstatement of marriage rights for same-sex couples.” The American Foundation for Equal Rights, which is leading the case, notes that it is the first time that Olson and Boies have “served alongside each other as co-counsel.” “For a long time I’ve personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals,” Olson told The Advocate in an interview. A copy of the 10-page complaint is here.

And I was sure Ted Olson was a complete douchebag.  I’ve learned something new.

Ted Olson to Team Up With Bush v. Gore Foe to Challenge Prop. 8 in Federal Court [Think Progress]

AFER Press Conference (video)

Update: Courtesy of SanFranLefty, here’s the motion for preliminary injunction (pdf).

173 Comments

That is surprising. They must have offered him a hefty sum to lure him in.

@Comandante Agi:
Maybe they appealed to his sense of humanity? Haha. I’d lean towards the money, but one never really knows.

@Comandante Agi: “For a long time I’ve personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals,” Olson told The Advocate in an interview.”

Maybe he fell and hit his head …

With friends like these, etc…

This is a really bad idea. They must be double agents working for the fundies, cause by the time the nutcases on the federal bench get done with us, we’ll be begging for internment camps.

@Original Andrew: I don’t know. No matter what the district court does the 9th Cir. will probably come out with the right result. The question is: would the Supremes take the case?

@blogenfreude: Yes, because the Supremes love to bitch-slap the 9th Circuit and reverse whatever they decided. I am very suspicious, in part because this is not something that the gay legal groups wanted to do.

ADD: I find the name of this group “American Foundation for Equal Rights” to be one of those Astroturf organizations. Have never heard of it and I’m pretty familiar with the ghey groups. Google it – and you get gibberish and a Facebook page.

My paranoia never ceases to amaze me, but I smell a rat.

Okay, the pleadings say it was filed by Gibson Dunn’s LA and DC offices…need to go do some reconnaissance and see if anyone I know still has their job there.

The “VRW” on the end of the case number stamped on the pleadings means it was assigned to District Judge Vaughn Walker.

@SanFranLefty: I know some Gibsonians and will snoop around. My first take was that this federal court lawsuit is a bad idea.

Note to Nojo: memory is the second thing to go.

@SanFranLefty:

I was thinking exactly the same thing; I’m on about a zillion donation e-mail lists, so how is it that I’ve never heard of the “American Foundation for Equal Rights?”

This must be their trojan horse strategy to get those 18,000 marriages annulled and set gay rights back 50 years. Gawd-damn, that’s devious.

I mean obviously, right?

@SanFranLefty: I would tentatively say that David Boies would not get involved in such fuckery. Tentatively.

@Original Andrew: That’s what I thought too. Though the law firms both have progressive reps (Ted Olson at Gibson Dunn notwithstanding). So maybe it’s sincere, but I suspect it was not done in consultation or coordination with the legal strategists at Lambda Legal, HRC, NCLR, etc., who have tried to carefully select where and when to file. For example, Iowa paid off brilliantly.

@Original Andrew: Federal courts would not nullify the marriages because marriage is traditionally left to the state courts. SFL, agree?

I mean, the Boies / Olson thing is really interesting. But I trust Ted Olson as far as I can throw him. Dude was Solicitor General for the first part of Dubya’s reign, after all.

@blogenfreude:

Bloggy, we’re living in a post-legal world. They can do whatever they want.

SanFranLefty: The report is that Judge Walker is a GHW Bush appointee. Would normally say that this is not a great draw, but Souter was another Bush 41 appointee. As — for that matter — is Sotomayor.

@blogenfreude: Yes.
@chicago bureau: And he must have had a real change of heart w/r/t to the gheyz, because he was saying some nasty shit after the gay Scoutmaster case.

I’m such a nerd that I’m looking up the bios of each one of the attorneys listed on the pleadings on Gibson’s website. At least one of the associates is most likely a friend of Dorothy.

@chicago bureau: One of my links describes his involvement in the Arkansas Project.

@chicago bureau: He’s the judge on the wireless wiretapping case and ordered DOJ to produce info.

I’ve never been in front of him, but his reputation is that he’s moderate and fair, and listens to both sides, which is high praise, actually.

ADD: Judge Walker has ordered DOJ to appear next Wednesday and explain why he shouldn’t sanction them.

@SanFranLefty: High praise indeed when you consider that the Bush family also gave us Clarence Thomas.

@chicago bureau: Well, the judge in the Dover case was appointed by Dubya…

@Original Andrew: Indeed. Something doesn’t feel right.

@Dodgerblue:

But the superpowers make up for it, right? Right?

Hmmm..there is some symbolism here, isn’t there, what with them having argued against each other in that tragic case? Maybe working together on this is their way of saying that this is a non-partisan issue…

I mean, it could happen that way in a movie or a novel, so why not real life?

@SanFranLefty: Ugh.

Okay. This will be my last pie-in-the-sky comment. This issue is ripe. We have four states and one commonwealth that allow gay marriage. We’ve got 18,000 CA gay couples whose marriages have been held to be legitimate. If the fed cts take up the issue, by the time the case(s) wind their way(s) through system, NY and probably NH and who knows what other states will have legalized gay marriage. The more gays that are married, the more pressure there will be on the fed judges. They do not live in a bubble, and they cannot ignore the direction this country is headed.

Something will have to be done about DOMA. Something will have to be done about EP.

::shrug::

I now defer to those who know more than me.

@JNOV: I know, but think about it from a more clinical perspective. Bowers took 17 years to fix. We don’t want another setback like that. Even if it takes a few years, unless Scalia and Thomas get struck by lightening, Obama will only be replacing moderates with moderates (i.e. JPS and RBG most likely the next ones to announce retirement). That leaves Kennedy still as the swing. Yes, he did the right thing in Lawrence, but boy does that make me really nervous.

@SanFranLefty: I had a business relationship w/ Bowers’ wife (he’s the GA AG who argued the case). Later she caught him cheating on her. http://conservativebabylon.lavenderliberal.com/category/mike-bowers/

@SanFranLefty: I get it. And I understand the legitimate concern. Why roll the dice and wait a gazillion years to find out you’ve rolled snake eyes? Yes. I will now haz my hope quietly. Maybe.

If 9th says equal rights, equal protection, from US Constitution, makes it unconstitutional to deny teh gays marriage, the present USSC will reverse, because they have already said so, and they will create a big-ass precedent that because of stare decisis, even a majority-liberal future USSC would have a hard time reversing.

And ya know, in the end, judicial imposition of progressive change has always ever provoked enormous backlash.

@blogenfreude: I guess he had an epiphany. The same can’t be said for Kenneth Starr, now dean of Pepperdine Law, who was the lead plaintiff for the Yes on 8 side. He was all over the local news yesterday. Bleh.

This could work out, b/c it’s likely to come out of the 9th Cir. w/ the right result. If the Supremes take the case, it’ll be difficult for them to get around the fact that: 1) other CA couples similarly situated were permitted to marry; and 2) similarly situated couples in other states can marry.

@Comandante Agi: He is a shitbag. Oddly, Pepperdine offered me a partial ride – I turned it down of course. Now I’m Sallie Mae’s bitch.

VIDEO of press conference is now posted above.

@Dodgerblue: I think the line is “Memory is the first thing to go, and I forget the second.”

@Prommie: judicial imposition of progressive change has always ever provoked enormous backlash.

Brown v. Board of Education? Roe v. Wade?

But I understand, and without disparaging strategy and practicalities, I find it sad and telling that we can’t just, y’know, pursue justice. Everyone’s playing DADT with the Supreme Court.

The fact that there is some debate amongst the Stinque Legal Team here about whether this could be a good thing gives me some small hope.

Seems like these particular lawyers have a track record getting the Supremes to muddle around in state’s issues…? But that may be painting it with too broad a brush, I don’t remember the particular legal arguments in B v. Gore.

@Pedonator: Watch the press conference. I felt better after I did.

Re Ted: I’m drawing on vague memory here, but I think he had a change of heart after 9/11. His wife was on one of the jets.

I’m going to play dumb here, and start with the lawsuit, which cites the 14th Amendment (equal protection) and 42 U.S.C. § 1983 (“Civil action for deprivation of rights”), and gives a pretty decent accounting of how California’s Domestic Partnership laws substantially differ from the state’s marriage laws.

Question: Setting aside the strategic wisdom of making a federal case out of it, is there anything wrong with the lawsuit as such?

@nojo: Yes, I think the one that went down in PA. New wife is a Dem.

@nojo: You said “making a federal case out of it….” Heh.

@nojo: I skimmed only part of the complaint, but what you describe sounds like fairly straightforward arguments. It. Could. Work.

There was a CA gay couple just recently (last couple of years) who tried to be heard in federal court, and I think it was dismissed.

I’m obvs no expert, but this seems like an extremely high risk legal strategy. A loss at the federal level could set us back for a generation, and tons of judges hate us just as much or more than the general public.

@nojo: Yes, Nojo, precisely, Brown and Roe, opposing these two judicial decisions are the sole purpose of the Republican Party. It no longer has any other agenda. They want to starve the State until they can drown it in a bathtub precisely so that federal troops will not be able to make them integrate their schools, they now regard all social programs as social programs precisely because they don’t want one penny of their money to go to shiftless blacks. And of course they want to save the murdered babies.

The backlash against these two cases, these two cases alone, created an opportunity for the old GOP to harness that anger, leading to the elections of Nixon and Reagan and eventually Newt Gingrich, the Contract with America, and the revolution, the loss of the legislature with the Republican Majority of 1994.

That backlash against Roe and Brown, which the old GOP tried to harness and use, turned and ate the old GOP, rendered it marginal, powerless, so that now, there is nothing left but the backlash.

Sarah Palin spouted so much about “activist judges,” she could have been the governor of Alabama in 1959, the words were exactly the same.

@nojo: I thought the unspoken punchline of the “second thing to go” line is that the first thing to go as men age is our sexual prowess, as it were.

Re the fed court suit: it would be worth a shot if one felt that the fed courts would have any interest in taking on the same-sex marriage issue. There is a lot of luck involved in what judge you draw and what panel of the 9th Circuit (appellate court). But we know who the Supremes are, and even if Sotomayor gets confirmed I don’t think they are anxious to go farther down the Lawrence v. Texas road. If anyone had asked me, I would have said let’s put a huge coalition together and fix this at the ballot box.

@nojo: There is nothing wrong with the logical merits of the argument, Nojo, nor is there anything in the argument which contradicts the spirit, I think, of the clauses and statutes employed.

But that doesn’t matter. Judges juggle words and logic and produce the result their prejudices favor. The current US Supreme Court will not find a constitutional right to gay marriage.

And a footnote to the morning soapbox…

The complaint also cites Loving v. Virginia, which struck down interracial marriage bans with the classic line, “marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

The majority opinion in Plessy also made note of interracial marriage, but from the other direction:

Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the state.

Love that “technical sense.”

Finally, a prescient aside from Justice Harlan in his sole Plessy dissent:

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.

Which leads to a nasty rhetorical question for the strategists: Presuming the Plessy decision could be predicted in advance — and as we know, did indeed set back civil rights for a half-century — would that have been sufficient reason not to file the case in the first place?

@nojo: Depends whether you want to be a martyr or a victor.

@Prommie: Agreed on the political consequences of Brown and Roe. But to raise the rhetorical question again: Would that have been sufficient reason not to bring the cases in the first place?

Again, I don’t want to disparage astute strategic calculations, and I don’t want to indulge in moral preening. But there is something about all this that makes me uncomfortable.

@Prommie: Nah, I just like to fantasize on occasion that the ideals we profess as a nation aren’t bullshit. Cynicism is just a strategy for making it through the day.

Well, it’s not like these guys consulted any of us before filing the suit. It does sound like they are sincere, however inspired or tragic the strategy proves to be.

Since it will no doubt take 1-2 years before this could make it to the Supremes, who could then just bat it back down anyway, we still need to do the ballot thing for 2010.

And I like the idea that by then there will be thousands more married gay couples from numerous states, so that if the Supremes decide to take the case it will make for incredibly explosive political theater.

Think about where we were even 3-4 years ago, and how rapidly the “community standard” on the issue is evolving. Another 2 years could mean a huge difference in public opinion.

Meanwhile, does anyone have the 411 on any viable backlash movement in Iowa?

I have to make a video about my arch enemy, MAM, so I’m going to throw this out there and see what you think.

Assuming this makes it to the Supremes, what is the worst thing that could happen?

Marriage will remain a fundamental right.

Those 18K CA marriages will NOT be invalidated.

Was it Dodger who said the level of review is intermediate? The worst thing I could see happening is that the level of review gets bumped down to rational basis, but I doubt it.

Would SCOTUS invalidate all gay marriages across the country? No.

Plessy was a test case. You always have test cases when you’re trying to make monumental changes, and I think they were right to bring the case. Plessy was 1/8 black and had to tell the conductor he was black so he could get booted off the train.

The cases that led up to Brown were very carefully selected. People went around looking for plaintiffs with standing and who were unblemished. Rosa Parks, IIRC, was a fluke — she was a sympathetic figure of her own right. But there were a bunch of small school cases before Brown. There’s a big blue book about it — I can’t remember the title.

Anyway, I have to deal with a Mormon who thinks CA is safe now that teh gheys can’t be wed. His video has footage of wildfires in the background, cuz we all know teh ghey brings teh nashural dizazturs. Dumb fuck.

Here: It’s less than 2 minutes long http://www.youtube.com/watch?v=XdgYBTsT_pY&feature=channel_page

@Pedonator: This should m0ve pretty quickly as they’re asking for a permanent injunction.

@JNOV: Let me know when the video is done and I’ll post it – more blogwhoring!

@Prommie: Damn, I wish I had saved the face-slapping a Wonkette commenter gave me the night of the Iowa caucus. Didn’t I realize that supporting Barry was just throwing my vote away? Didn’t I understand that Hillary was our only reasonable chance for regaining the White House? How could I be so fucking naive?

Apples and oranges, of course. But if we’re going to stray from the Truth and the Light, I like to keep tethered.

By the way, I make a lousy strategist — too many if-then conditionals for my taste.

@nojo: Any cause needs both martyrs and victors.

But now, you seem to be overstating the ideals in question. You must remember you are not trying to uphold the ideals this nation was founded on. The principles which you seem to feel deserve no strategic compromise have never been the “ideals we profess as a nation.” They have always been the ideals which can be discerned in our Constitution, as understood by progressive intellectuals, but they are not the understanding of the Constitution as it has been interpreted and enforced, not by the government, nor the Courts, nor the people. The nation as a whole was fine with chattel slavery when the Constitution was written, and they were fine with segregation until it was ended, not by a majority of the people, but by progressives and intellectuals who had infiltrated the judiciary. The Nation as a whole never professed equality for women for over 100 years, and it outlawed teh gay until what, 10 years ago?

Those noble ideals that you are professing and urging strict loyalty to have never been the ideals of the majority of the people, nor of the institutions, of this nation. They have, however, always been the HOPE of the progressive and educated people of the nation, and they have always been a possibility, our nation was founded on principles which set up the foundation of our belief in these things, and the foundation for change so that we can achieve these things.

But no, we are not in sole possession of the True American Ideals. The rednecks really are much more representative of this nation’s genuine ideals through its history than we are. Yes, we are in possession of higher ideals, but we are not trying to restore anything, we are trying to revolutionize and bring to full fruition something which has never existed.

Believing myself not a standarbearer for traditional ideals, but rather a revolutionary trying to promote change to the country’s traditional ideals, changes which will perfect them, and which were probably foreseen by our elitist white rich male hetero forefathers, but nevertheless, changes to them, maybe that makes me a little less idealistic about ideals and strategic fights being somehow a compromise of ideals. There’s dead idealists everywhere, and failed ideals. I have an agenda, and I want to win.

@Pedonator: Well, it’s not like these guys consulted any of us before filing the suit.

One of the fascinating consequences of Prop 8 last fall was the criticism of HRC as being too appeasing. Since I had no familiarity with HRC to begin with, it was an interesting debate to discover ongoing.

But the plaintiffs — “these guys” — are a lesbian couple from Alameda, and a gay couple from L.A. County. Do they have to check in with the Home Office before proceeding? Or are they really being used by Boies and Olson, the way class-action lawyers find fronts to file lucrative cases?

Given the high-powered representation, I’ll accept an argument that the plaintiffs are dupes. But I want to hear it.

@nojo: Sorry, by “these guys” I meant the lawyers representing the plaintiffs. But of course I wouldn’t expect the plaintiffs or their lawyers to necessarily consult with us, or with HRC, or the ACLU, or LAMBDA, or anyone. Especially high-profile guys like this who no doubt have huge egos.

I have no information regarding whether the plaintiffs went to the lawyers or whether the lawyers shopped this around. And either way I think they have every right to bring this case. I just meant to suggest that speculating on the strategy of it may be amusing, but the case has been filed and no matter how it proceeds we still need to work on other fronts.

Personally, I am looking forward to the sheer spectacle.

@nojo: I don’t think they’re dupes. And I’ll tell you something else – Boies needs to step aside and let Olson argue in front of the Supremes – the wingnut judges love him. He’s also arguably better than Boies because, as SG, he was in front of the Supremes constantly.

@Prommie: The principles which you seem to feel deserve no strategic compromise have never been the “ideals we profess as a nation.”

1. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.

2. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

3. Four score and seven years ago our fathers brought forth, upon this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

4. 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.

Of course the sociology of our nation’s ideals differ from the protestations, and of course our nation was conceived in sin. But I buy the bullshit, and look upon the professed ideals as an enduring standard upon which all actions must be measured.

That’s not moral preening. That’s moral clarity.

@nojo: @JNOV: It was the one that crashed into the Pentagon. She was the person authorities had the most contact with on that plane because she called her husband’s office, and was incredibly calm about relating what was happening.

@nojo:

Prommie said that far more eloquently then I, but I would take a different tack and suggest that our nation’s “highest ideals” are nothing more than sophisticated propaganda used to indoctrinate school children and perhaps inspire people to join the military.

Contrary to popular belief, the US is not one big happy family with differences of opinion, like Brothers & Sisters insufferable Walker clan, no, we are and have always been disparate groups with competing and largely incompatible agendas who truly hate the others and wish that they didn’t exist.

The Founders realized this and developed history’s most successful (to date!) tool of social control. They set the various racial and economic groups against each other, then gave each just enough illusion of freedom and a modicum of comfort so that they wouldn’t face a massive rebellion, as had happened to the ruling classes in the Old World.

@Mistress Cynica:

She also wrote Faux Nooz shill books about Bill Clinton’s penis & Hills’ insane and evil rise to power.

How’d ya like for that to be your epitaph?

@nojo: That declaration was a propaganda document, half those who signed it owned slaves, and their wives had no legal existence as people, it having merged with their husbands upon marriage.

The thing they feared most of all was the government falling into the control of the uneducated rabble. You know, the Demos.

@Prommie: And just to be clear, I’m not against strategizing — I’m a past master at laying traps for seminar opponents. For that matter, Jules Feiffer observed early of LBJ that he was “wheeling and dealing” in pursuit of the 1960s civil-rights legislation. Results do matter.

I also think that arguments for keeping gay marriage out of the federal courts are well-considered, and not to be lightly dismissed. But I’m not the one to make those arguments, nor am I the one to dismiss them out of hand.

But if I’m Kristin Berry, or Sandra Stier, or Paul Katami, or Jeffrey Zarrillo — if it’s my life at issue, my relationship, my family — I don’t know that I’m going to be patient with debates over the best means to secure my rights under the law. In the long run, we’re all dead.

@JNOV: I thought that Rosa Parks was carefully chosen for her role. I could be wrong about that.

@Original Andrew: “The Founders realized this and developed history’s most successful (to date!) tool of social control” so that privileged white men could sustain their way of life without interference from the rabble.

@nojo: Oh stop it, every act is strategic. Its not any lack of moral clarity to pick your battles and weigh options so as to produce the greater good the soonest for the greater number, thats one of my ideals, real progress, not the worship of abstracts.

The near unanimity amongst activists for this cause, that a federal lawsuit right now would be counterproductive, thats not a compromise of ideals, its commitment to ideals. Its clarity of purpose, not grandiose gestures, but results.

You’re sounding like Otter when he said “I think we have to go all out. I think that this situation absolutely requires a really futile and stupid gesture be done on somebody’s part.”

Before I launch into a Civil Procedure lecture, can I just say that Ted Olson really needs to do something about that unfortunate toupee? And if that’s not a toupee, then oy vey.

@nojo: Setting aside the strategic wisdom of making a federal case out of it, is there anything wrong with the lawsuit as such?

Qualified No. Well, I’d really want to see their memorandum of points and authorities supporting (a) the request for the injunction and (b) the declaratory relief before I’d fully answer the question as No. Because those are two separate procedural tracks, and at the end of the day, it still depends upon the judge/court and his/her mood that day.

There’s some hurdles you have to jump procedurally to get an injunction. [DB, jump in at any time as I know you’re doing them all the time]. These are at Rule 65 of the Federal Rules of Civil Procedure and caselaw:
1.) Irreparable harm – requires a showing that the harm is (a) imminent, (b) the injury would be irreparable, and (c) the plaintiff has no other adequate legal remedy.
2.) Substantial likelihood that the plaintiff will succeed on the merits of the case (but not necessary to prove that you will prevail)
3.) Balance of hardships (injury to P > injury to D) if the injunction is granted.
4.) Effect on the public interest – granting the injunction will not adversely affect public policy or public interest – basically it’s like # 3, but talking about the impact on the general public and nonparties.

So lets take those four factors and apply them to this federal case. Factor 1 – Paragraph 48 of the complaint spells out the irreparable injury to the plaintiffs, and I think they’re stretching. “Severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma,” while I’m sure are very alive and true emotions that these plaintiffs may be experiencing, are not generally all you’d want to base a PI on. I’ve done a few PI motions, and you’ve got to have (at least in my experience) very concrete and immediate harms – like, the prisoner will be locked up past the time he should have been released, Company A will lose $50 million if you don’t enjoin Company B from using their logo, the road will be built and the endangered species will become extinct. Plus, “psychological harm” and “emotional distress” thrown in front of a conservative judge is the proverbial red sheet in front of the bull. Granted I’ve never done them in N.D.Cal. so I don’t know if it’s looser here.
Factor 2 is a wash,
Factor 3 could be argued that it weighs to the state (they’ll argue the $21 billion budget deficit prevents them to do anything).
Which takes us to Factor 4. And boy is that going to be an interesting one for Judge Walker to consider.

@Original Andrew: @Prommie: Consider me a tool, because I hold our nation to the ideals expressed, while being well aware of the circumstances and cynicism of their composition and execution.

The Founders, and those who followed, could have just called it as it is. But they didn’t. The power of those ideals is that even those who dispute them feel compelled to hide their dispute in that language — especially in our time, when you need an Orwellian dictionary to decode Republican talking points.

That’s why I’m forever yearning for an honest national political debate, while knowing it will never happen. Those who would undermine our ideals are too chickenshit to say it.

Well I can tell you that the lawyers for the GLBT rights movement–Lambda Legal, primarily–have been very clever and persistent, starting with Hawaii back in the early 90s. Each step has been carefully thought out and considered, especially in regards to which state to seek rights. And they’ve consistently said that there’s no way we should take this federal because we’ll lose, lose, lose.

And yes there have to be test cases. Seems that I read that there were several dozen unsuccessful attempts to challenge miscongenation laws before Loving vs. Virgina.

The Vermont Supreme Court’s legalization of civil unions in ’99 was a massive win that provoked the ugliest backlash imaginable in this day and age. You can see photos online of huge anti-gay rallies, with people carrying banners screaming “impeach the court,” and lawn signs pledging to “take back Vermont.” I always wondered if the people in those photos look back on those days with remorse. Probably not.

Massachusetts really opened the floodgates, and only an incredibly complex constitutional amendment process–and non-stop lobbying from GLBT rights groups–prevented the total rejection of marriage rights there. And now, barely 5 years later, a majority of citizens support those rights in a poll released just this week. That’s progress.

@SanFranLefty: Part Two of the Civ Pro lecture, moving in to Con Law, with regard to the request for declaratory relief, pursuant to the DP and EP clauses of the 14th Amendment.

Again, like we were talking about upstream, DP and EP cases start and stop on the level of scrutiny used to review the government policy/action. If the court picks strict scrutiny, much easier to prevail. If the court picks “rational basis” review, you’re pretty much done. The mushy “intermediate scrutiny” level is the one that’s hard to predict and has in federal case law been accorded to teh gheyz. The nice thing about the state supreme court decision LAST year was that they ruled that singling out teh gheyz requires strict scrutiny under our California constitution. They said yesterday that that part of the decision still stands.

Their complaint has enough in there to survive an initial motion to dismiss the claims. Unclear whether they would win a motion for summary judgment.

But here’s a fun and interesting variable – they’re suing Jerry Brown and the state. The state was on the side of the plaintiffs in the case decided yesterday – AG Brown refused to defend Prop. 8 in the state supreme court and his office argued that Prop. 8 be struck down. So the $21.3 billion* question is how aggressively will the state defend this suit? If the plaintiffs prevail in district court or court of appeals, will Jerry Brown (or Kamala Harris, the San Francisco DA running to be the next AG) choose to not appeal it up to the next level? Or will the NOM NOM NOM groups decide to intervene because Jerry’s shop and the State don’t want to defend the suit or defend the Proposition, like they didn’t defend the Proposition before.

*today’s announced number of our current state budget deficit.

@SanFranLefty: I love being grounded. I thought “severe humiliation” was just boilerplate for cases like this, but here I am arguing against boilerplate, and you’re right: statements like that are difficult to substantiate. (For comparison, Plessy did involve a fine and jail time.)

So we’re down to your Factor 4, and that’s a near-term practicality I’m quite comfy with. Contra Prommie, I’m not Otter: Is this a case that can stand strongly on its merits? Or is it the next chapter of Amendment v. Revision?

@Dodgerblue: No, you actually could be right. I was reading two books at the same time about the civil rights movement, and I started to get confused.

@nojo: It is simply human nature, to always strive towards unattainable ideals. But you must always remember that ideals are unattainable, reality will always fall short, people will always be hypocritical, hypocracy is the human condition, we all believe in ideals none of us can attain perfectly. In other words, don’t hold people to impossible standards, including yourself.

@SanFranLefty: Great example of what I meant by meaningless, and I mean meaningless, in a Positivist sense, words, juggled by judges to produce the smokescreen of legal justification for their decisions to decide in accordance with their prejudices.

@nojo: Its a case that could win in the lower court, but then, it will go to the Supreme Court, and the Supreme Court could use it to shut the door for decades when they reverse the 9th circuit. Oh, and it would be lazily coursing through the system just in time to make the Supremes docket right around the 2010 elections, providing the perfect rabble-rousing fodder for a republican mid-term triumph.

Thats what I am afraid of.

@Prommie: Yep. They come up with some legal test, you dutifully plod through it, and at the end it comes down their prejudices, what they had for breakfast, and the last time they got laid.

@SanFranLefty: Again, this is really appreciated, instead of me counting angels with the panel.

Setting aside the judicial luck of the draw, there are certainly practical procedural questions that need to be addressed — it’s all fine for me to be invoking the 14th Amendment, but my one-line “this ain’t equal” filing wouldn’t get very far.

Thus, my practical interest: Surviving that initial motion to dismiss is a necessary, but not sufficient reason to move forward. And while filing a case that could win summary judgment would be, er, ideal, I don’t need to be that solid. But it would need to be a strong case, with a good chance of winning on its merits, without resort to stretching points. (Or, to turn it around: Objecting to the case would require much more of a stretch than granting it.)

Now, to your fascinating hypothetical: If the state refuses to defend, or defends weakly, who has standing to intervene? How does that work?

@Prommie: But something SFL said above makes me question whether this even would go to the Supremes. How much effort will the State of CA put into defending this? And in the event of a win in the 9th circuit, who would have standing to challenge that besides the State? I assume nutjob groups would form to sue the state and/or AG for not vigorously defending the case, but would they have standing to get it kicked up to the Supremes?

@Prommie: ideals are unattainable

Ideals are easy to attain. The problem is that compromises are even easier.

(Caveat: Pick yer ideals wisely…)

My legal issue today: employees running a fight club at the community center. Not a lot of con law involved there.

@nojo: Noone would have standing.

The case will probably be decided one way or another on summary judgment, because there are no facts to dispute.

The interesting thing will be the request for an injunction, for which you must show immanent harm, inadequacy of monetary damages, probability of success on the merits, and in a weighing of the equities, more harm by denying the request than by granting it. And thats from memory, jack, and I have no memory, but I used to specialize in orders to show cause.

@nojo: Huh? On what world? No human construct can ever be perfect. Ideals are ideas, only ideas are perfect, implementation cannot ever be perfect, people are a mess, what have you been smoking?

@Pedonator: Hmmpf. I just can’t see any room for someone to try to intervene to take the State’s place. Someone could file a suit based on whateever supposed right is violated by letting gays marry, I suppose. Hmm.

“Your honor, they’re corn-holin’ each other and it irks me, because I’ve always secretly wanted teh buttsecks.” Thats all I can think of for the supposed cause of action.

@Prommie: what have you been smoking?

Camel Lights.

And to resort to a line I used at the beginning of the Reagan Era: The only thing we have to fear is the fear of others.

And while of course no implementation of an ideal can be perfect, I refuse to accept idiocy as a valid obstacle, however much I may have to deal with it in practice. There’s weakness, and then there’s foolishness. Weakness I can live with as a condition of human nature. Foolishness — or Agressive Ignorance, as I sometimes call it — I resent.

Oh, and we natives call our planet Tralfamadore.

So, back to the matter at hand, and following SFL’s invaluable procedural analysis: Is this a shrewd filing after all, not a hail-mary pass, but finding a hole in the defensive coverage and running for daylight?

Let’s look at the defendants:

  • Guvernator
  • Former Governor and current AG Moonbeam
  • Director of California Department of Public Health and State Registrar of Vital Statistics.
  • Deputy Director of Health Information & Strategic Planning, Cali Health Dept.
  • Alameda County Clerk
  • L.A. County Clerk

Are these the right defendants for this case? And allowing for the conventional wisdom that resorting to federal courts is a gamble, is this nonetheless a highly calculated gambit?

@Prommie: We (my enviro organization) intervene in cases all the time when we suspect that a governmental defendant may want to take a dive. The standards for intervention in fed court are pretty loose, and trial judges have a lot of discretion in whom to let into a case. Our AG’s refusal to defend Prop 8 would be a powerful factor in favor of Judge Walker, who is not a nut, letting some superficially-not-crazy anti-gay-marriage groups into the case.

If I were the judge (ha!), I would deny the TRO request and set the case on the “rocket docket” for speedy resolution by summary judgment (without a trial with witnesses etc).

@nojo: That’s exactly where I was headed when I got distracted by work.

Given that the Governor has expressed support (while stamping a veto on legislation); that the legislature has passed a gay-marriage bill(twice, yes?); the AG is on our side; depending which polls you read when, the state population may be slightly in favor of gay marriage; and we’re facing a record deficit that has everyone scrambling to pinch pennies…how aggressively will anyone want to fight this if the 9th does the right thing?

@Dodgerblue: Hearing scheduled for July 2, that’s a pretty rocket docket for a federal court.

Oh and Dodger already answered the question, but it’s easy to intervene, but if plaintiffs and the state don’t want the interveners, that does add another round of litigation and paper shuffling. I think the state would defend it, if nothing else because they could say the state supreme court has decided the issue.

@SanFranLefty: The Mormon dollars will start flowing shortly.

@SanFranLefty: Another practical question: What is the strongest defense to this case? Can the state Supremes counter the 14th Amendment claims?

I won’t retype it all here (damn scans), but page 6 of the complaint cites substantive differences between California marriage and domestic-partnershp law:

1. Domestic partners must live in the same residence at filing, but not married partners.

2. Domestic partners cannot file if either is under 18, but marriage is allowed with parent/guardian consent.

3. Domestic partners must file with a state registry, but marriage can be filed locally.

4. Guys & Dolls can enter into a “confidential marriage” (private record), but Guys & Guys don’t have that option.

5. “Unmarried spouses of deceased veterans” get a $1k property tax exemption, but not domestic partners of same.

6. Marriage requires a court-filed divorce to break up, while domestic partners can just shit on each others shoes.

This lends support to the “separate and unequal” claim, counter to the Supremes, who said the only difference was “marriage” as a state-sanctioned label.

So: Would a federal court have the authority to order the details brought to parity, while still denying the label?

@SanFranLefty: What are the odds of one of the defendants getting their own nutter counsel to defend despite (to spite) AG Moonbeam?

That’s kinda what happened here in a federal case about edumakatin the little brown ones. Two Dem AGs took a dive so the GOP State School Superintendent and intervening State Legislators hired their own attorney to fight the decision to give more money to fund ELL. They’re now in the 9th and have hired Pepperdouche Ken Starr to handle the appeal (@ 500 taxpayer $/hour).

@nojo: “Guys & Dolls can enter into a “confidential marriage””

Really? What the fuckity fuck is that all about?

@nojo: Federal courts can’t muck about in state laws like that – the federal question here (that gives the court jurisdiction) is whether it’s a) constitutional, and/or b) violates federal law.

@Dodgerblue: I’m going to let my ignorance show here, but in your line of work, don’t the relevant federal laws permit/invite intervention by NGOs? Or is that just standard procedure for federal courts?

@nojo: I think the State or, if the State takes a dive, the defendant-intervenors will have to argue that the federal standard of review for equal protection claims based on sexual orientation is rational basis, which is not what any progressive person wants to hear. It’s a very low bar — basically, the defendants just need to move their lips and say words that make up a complete sentence. The due process claim is tricker if it is based on the fundamental right of marriage, but also lends itself to really bad results if the decision is that same-sex couples do not have this right.

@nojo: They’d better not send in that fucktard the State used last time. Stupid mutherfucker.

@nojo: No, we don’t get any special dispensation when we want to intervene. But, I have to say that it helps being a well-recognized NGO rather than, say, the Mormon Anti-Buttfucking League (MABL) when you walk into the courthouse.

@redmanlaw: I’m filling out 200 customs forms in preparation for catalogue mailing. FRCP not much use there, either.

@blogenfreude: Yo — my video is uploading. You know all of my videos are responses to that fuckwad MAM, right? So I poke him in the eye some. It’s not like the other video where he was excluded. But it’s funny. Maybe. We’ll see.

@Jamie Sommers: News to me — I’ll type it out:

The marriage laws establish a procedure through which an unmarried man and woman who have been living together as husband and wife may enter into a “confidential marriage” in which the marriage certificate and date of marriage are not made available to the public, Cal. Fam. Code §§ 500, 511, but the domestic partnership law contains no such provisions.

Without bothering to look it up, sounds like a way to legitimize shacking up without having an embarrassing late marriage date on the record. But that’s also what really caught my attention on first reading, since, changing societal opinion notwithstanding, I can imagine more than a few folks would love to keep their relationship off the public record.

Yeah – mean-assed Mormon. Mail me link when done plz.

@Dodgerblue: Ah.

So, anybody, read my mind: What am I thinking about? Aren’t there laws (I thought they were environmental) where citizens can file for enforcement when the guvmint shirks its duty?

@nojo: Usually Congress has to specify that citizens can sue under the law or you can’t.

@Jamie Sommers: What are the odds of one of the defendants getting their own nutter counsel to defend despite (to spite) AG Moonbeam?

I’d say next to nil. Even Arnie. Also, two of the other defendants already have different counsel, namely the LA County Counsel’s Office and the Alameda County Counsel’s Office. I’ll defer to my law partner DB in El Ay as to an analysis of that office, but I can tell you the one across the Bay from me tries to keep up with the SF City Attorney’s office in terms of pro-active litigation. I doubt either LA County or Alameda County would hire a law firm.

The state agencies and Guvernator might hire outside counsel, I’ve certainly seen them do it before, but given the current budget situation, seems pretty foolish to do that when there are plenty of Deputy AGs sitting in the state office building across the street from the 9th Circuit headquarters who could write a motion to dismiss.

@nojo: Actually, in California, any taxpayer can file a writ against a government agency to do just that. CCP Sections 1085 and 526a. Best thing ever for civil rights attorney in this state.

@blogenfreude: So, I think I was confusing categories: filing a lawsuit to enforce a law, as opposed to intervening in an existing lawsuit. And the typical examples I’ve heard of, regarding the former, are environmental laws.

(Meaning: the University of Oregon’s law school has an “environmental law clinic”, whose filings over the years have stepped on plutocrat toes, thus engendering coverage in the local fishwrap.)

@SanFranLefty: Yes, much easier to file a citizen suit under state law than federal. Don’t get me started about the hidden political/social agendas behind the apparently-academic arguments about who has standing to sue in the federal courts. Take a wild guess which wing of the Supremes wants to restrict who can sue in fed court.

@nojo: the L.A. Fishwrap editorial board hates my program’s advocacy. Their reporters apologize to me about it, but I don’t care — in fact, I’m proud of it.

@Dodgerblue: I presume there’s a reason Harry Shearer calls it the Dog Trainer.

Eugene’s family-owned newspaper has been historically liberal, following the tenor of the town. Never had to deal with a reactionary crank deadening the debate.

Meanwhile, Sandy Eggo’s family-owned newspaper (historically more cranky) recently sold out to an L.A. turnaround firm. Not that I ever read it, although I’m sure the Republic can survive without extensive sports and food coverage.

@Dodgerblue: Last week’s Iqbal decision sure did a nice number rewriting federal pleading standards.

@Dodgerblue: An excellent example is Spitzer’s use of the Martin Act to take the place of SEC regulators who weren’t doing shit.

Courtesy of SFL, I just read the plaintiffs’ motion for a preliminary injunction in the fed court Prop 8 case. The motion is very well-written. These folks are in it for reals.

@Dodgerblue: Read it on my commute home. It’s good. It’s tight. It makes solid arguments. Any intellectually honest judge should rule for it, and if this is an indication of the arguments for the case in chief, rule for it on summary judgment. However, yesterday we saw a horrible display of intellectual dishonesty in jurisprudence, and I am therefore pessimistic.

@SanFranLefty:

That’s the hot prob. People are talkin’ about this like it’s a math problem–like maybe if we find the right combination of words and numbers, it’ll somehow unlock the keys to the kingdom. It won’t.

The only way to succeed is by having individuals continue to contact and lobby their legislators until at least plurality of states have marriage equality. Once the balance tips, then we can make it in federal court.

@SanFranLefty: Reading it now – very good, although they argue in the footnotes a bit (I was trained not to relegate arguments to footnotes – make ’em in the text, or take ’em out).

@blogenfreude: Jeebus, get out of my head! I was trained the same way and had the same reaction as you to the footnotes. No legal argument in a FN longer than two sentences, save them for snarky snipes and [sic]ing the opposition.

@blogenfreude: What the heck was that magic footnote we learned about in law school?

@JNOV: Dunno – never heard about that. Just had the Blue Book beaten into my head. I can still write a perfect citation 12 years later.

@blogenfreude: There was some footnote that was later given the weight of a court holding. That’s all I remember. And I remember judges often giving hints in the footnotes on how to prevail next time, but that’s pretty common.

ADD: Props on your BlueBook skills. I has nun.

@blogenfreude: Found it – US v. Carolene Products (1938)

Footnote 4 (introduced the levels of judicial scrutiny):

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth…

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

@Mistress Cynica: I’m still trying to figure out who the father of Scully’s baby was.

@redmanlaw: I thought her eggs were stolen. Yeah, but then there was that little girl — Scully gave her a necklace. I’m so confused.

Oh lord, the gay crazies are out in force in the comments on the Advocate.com.

Some seem to be suggesting that gay legal and rights organizations are losing on purpose in order to generate more donations and ‘maintain their relevance in the community.’

Suhweet jeebus, I just can’t deal with that serious case of Teh Nutz.

@JNOV: Geeze – I’d forgotten about that case. But I sure remember 2 conlaw and 1 admin law professor beating it into us.

@Original Andrew: I hear you and you’re probably right, but I’ve always been a fan of the attack on all fronts strategy. At the risk of being classified an enemy combatant for supporting questionable activities, I think most political movements need both a militant shock-and-awe division and a calm, cool, collected political wing.

I overheard a straight guy at work yesterday talking about how he was going to the local rally either to celebrate or protest, because his “girlfriend is into the whole gay rights thing”. And then later he razzed someone at lunch because he thought that person was against gay marriage (which turned out not to be the case).

And I felt briefly ashamed for not planning to attend the Sandy Eggo demonstration. My tolerance for participating in street theater is long gone. I’m glad it’s there, I encourage and applaud it, but you know, I don’t handle crowds well. So I’d rather give $$ and if a good opportunity comes up I’ll be glad to put time in on something at which I can be truly useful, but other than being out in my daily activities, family, workplace, etc. I don’t feel an obligation to proselytize for my civil rights.

And then I feel ashamed that my het brothers and sisters sometimes seem more willing to go to the battlefront than I do. But I’m done with the idea that I have to defend my “lifestyle” and I feel that anyone who doesn’t get it at this point is pretty much just old. The new kids on the block, in general, seem happy to at least understand our demands for equal protection under the law as a given matter. Is that being Pollyanna?

What bothers me most, I think, is that I couldn’t find a hint of this story on the busy front page of the (online) NYT today.

@JNOV: Opposite sex w/Mulder? Stupid SciFi channel puts it on at midnight Mountain Time.

@Pedonator:

Oh I’m not disparaging activists and marchers, etc. Far from it. I still go to such events when I can, in addition to writing checks, calling, e-mailing etc.

What’s far more effective though, is personally contacting your legislator and letting them know that there are real people who are affected by their decisions.

And just being out is a huge deal, especially in the Midwest and the South.

That said, it’s the conspiracy theorists that drive me up a wall.

@Pedonator: And how about a march with giant puppets?

@redmanlaw: No, no, no — they stole her eggs and put them in a tube somewhere and made little Scullys. I was in and out of that season, so I don’t know how many rug rats she had running around.

@blogenfreude: I remember really weird and useless stuff.

@Original Andrew: Consider phone banking for the ACLU. GLBTQ issues come up all the time, and we call members and urge them to call their legislators.

@Original Andrew: Well just being out is NOT a huge deal in my experience, here on the Left Coast.

I do regularly (at least once or twice a year, if only to send Happy Halloween Hallmark cards) write to Dianne, Barbara, Nancy, and Susan Davis, but all I ever get back is a form letter. And they never really address the issues I delineate in said letters, positions on which come from my heart. Go figure.

@redmanlaw: I love a march with giant puppets, painted bodies, and demonstrations that include fire and piercings, just as much as anyone else.

Not sure what it does to influence policy, but I don’t want to see it stomped on by the storm-troopers’ boots, as such.

@blogenfreude: Forgive me if I am talking from ignorance, but intervening when a government official is failing to enforce a specific federal statute, is certainly possible (here in NJ we call it an “action in lieu of prerogative writ,” a suit to force a state official to do his duty as prescribed by statute). Its also common for federal enviro, and securities, statutes to specifically allow intervention by members of the public.

In this case, the only issue is whether the US Constitution prohibits the discrimination which prop 8 allows.

And it is in this situation where the federal standing rules get nasty, if I remember my con law, and the law has not changed. The mere fact that someone, or some interest group, feels the law is being violated, does not give standing, in a constitutional case, as opposed to a case involving failure to abide by or enforce a specific federal law. My memory, and I have not practiced in this area, its all old con law I am going by, is that only an individual specifically and genuinely affected has standing.

If the State AG tells the federal court “I agree, this suit has merit, I believe Prop 8 violates the US Constitution,” the only people with standing would to intervene and oppose as parties to the suit, would be those who are going to suffer real, genuine harm.

And who is harmed by gays getting married?

How can non-gays, who are allowed to get married, going to show that gays getting married tangibly harms them?

And again, this is from my old con law classes, where, in those ancient days, the federal courts were strict about standing, and denied standing to people who simply felt that the law was being wrongly interpreted, they had to be actually, materially, impacted by the misinterpretation they allege, in order to have standing.

In enviro, standing on this level is possible to show, if more pollutants are allowed into the air or water, and you breathe the air and drink the water, you suffer tangible harm.

But if the harm is “gays are getting married,” I don’t see the real, tangible harm to anyone.

@Pedonator: “Private property, hippie be quiet/ Your peace sign t-shirt could cause a riot.”

– B-52s “Funplex”

http://www.youtube.com/watch?v=qfh4C0SFOy4

To put it more simply, I had thought that merely disagreeing with the law, or a public official’s interpretation or enforcement of the law, does not confer standing, in the absence of a statute specifically allowing it, without a showing of a particular damage caused to the party intervening. And again, merely saying “I disagree with his intrepretation of the Constitution,” is not enough to confer standing.

I truly believe that when Wall Street deems it time to recognize gay marriage in US America, it will be so, all across the land.

Do you think if Tim G. and Ben B. (or any random Goldman Sachs broker, for that matter) said We must recognize gay marriage or the Economy will explode! that it would face any serious “bipartisan” “controversy”?

@JNOV:

I tried to volunteer at the downtown Sea-town Ack Loo chapter, but they only take volunteers Mon-Fri 8 am to 5 pm. Weird, eh?

This was a couple of years ago, perhaps I should try again.

@Pedonator:

That’s why we’ve been so successful so far.

We’re not a threat to their power structure, unlike say, labor unions, which have been basically crushed.

@Promnight: I probably misinterpret your comment, but I’ve always thought there should be a grand class-action suit against, just for instance, Dow, on the grounds that their chemicals have penetrated my body against my will.

Unfortunately I also know I’m not the ideal plaintiff, as I’ve sullied my body willingly with uncountable chemicals. I just don’t like the fact that these corporations, usually sucking at the teat of taxpayer subsidy, are able to put their stuff out in the ecosphere and then (green-)wash their hands without any accountability.

@Original Andrew: Exactly. Wall Street has no compelling interest in denying our right to marry, and they may even find a reason to promote it; some already do.

So we should be thankful to our oligarch masters because in the end, they are truly thinking about our best interest. Just like with the 401K scheme. And the plan to privatize Social Security. And the absolute denial of any single-payer health-care reform proposition being “on the table”.

I expect gay marriage will be a non-issue soon, even as national health-care and Social Security will remain points of contention.

@Pedonator: Gay marriage is a non-issue, its only an issue right now because the republican party has absolutely nothing left at all but frothing up the mouth-breathing asshole wing of the party, the only constituents they have left.

Its the last gasp of their use of “social issues” which was succesful for so long, but has lost steam lately.

I really don’t think its much of an issue at all, for the majority of americans, even the coffe-machine assholes who talk about it at work, its no more important to them than whether their sports team won. In a week, they’ll be on to something else.

This is a manufactured, political issue, the last desperate effort of the GOP to use an issue that appeals to bigots and morons.

Maybe I am pollyanna. I don’t know. But I think its in the can (pun intended), gay marriage is inevitable, this is all just the last gasp of this particular kind of politics that just isn’t working anymore for the GOP.

@Original Andrew: Yeah, we have those hours and Tues nights. Very inconvenient.

In other news, I’m being trolled by a Mormon in the comments for my last video, AND Mormonanswerman left a comment on one of my videos, “Beth, peace.” To which I replied, “Right on.” But I’ll still have my eye on him.

@Promnight: I don’t think it’s a Democrat or Republican issue. Everything I’ve seen over the last several years tells me both parties are just jockeying for position in the one dominant power scheme.

When that scheme deems it’s okay for me and Mr. Pedo to get married, it will be so. When that scheme deems it’s okay for people to be incarcerated without recourse to habeas corpus, it is so. When that scheme deems it’s okay for those incarcerated to be tortured, it is so.

Regardless of the president’s oath to protect The Constitution (not any commonsense interpretation of the oath to “protect the people of America”), much less some mythical highfalutin’ adherence to equal protection and the rule of law, I’ll believe it when I see it.

None of which has anything to do with the price of plastic in China, which may be the real issue in the end.

@JNOV: Maybe you really changed his thinking?

Now I’ve been blessed with this night’s KO broadcast, in which John Dean argues strenuously for gay-marriage rights. Does anyone dispute that it’s a foregone conclusion?

@Pedonator: And Rachel notes that Shrub’s solicitor general and Geezer’s campaign manager are ahead of Barry on the issue.

Generationally, it’s a done deal — the bigots are dying off. But this year? 2012? 2016? Too soon to call.

Some said last fall that Prop 8 was a pyrrhic victory for bigots, and they may be right — Prop 8 didn’t close the issue, but opened it up. But as Prommie notes, it really comes down to whether gay marriage can still effectively be used as a wedge issue. And for that, we’ll have to wait and see.

@Pedonator: My darling, we are optimists to the core. I don’t think I’ve changed his thinking; I think he’s tired of me daily putting out a video with his name in the title. I’m curious to see if he’s lifted the ban. That will inform my future videos.

@nojo: When I was in my teens I thought that my generation would be smart enough to do away with bigotry. How wrong I was. There will always be bigots.

@redmanlaw: “‘I think you marry the nice girl, I don’t think you marry the whore,’ she says, adding that the man of the 1950s would certainly take Betty home to their mothers and perhaps take up an affair with a girl like Veronica.”

How very Mad Men.

@redmanlaw: Damn, I was hoping Archie and Jughead would finally get it on.

@SanFranLefty: Reggie and Moose will be the next magic couple after they move to Maine for the fall colors and summers outdoors. Reggie can’t handle the pig farms and overalls of Iowa, although Moose would move there in a minute for all that and because he’s a Slipknot fan.

@mellbell:
As long as they don’t equate Don Draper to Jughead, I’m okay with that.

Pete = Jughead?

@redmanlaw:
Rough Trade couple?

Mom used to buy me the Jesusy Archie comics. Yep. And one about some little boy in India who found a lamp, rubbed it and ended up demon possessed. I was like, “Man! I’ve been looking for a magic lamp for like for-ev-ah! Gar!”

@JNOV: “Lamp” being fundamentalist code for “another Indian boy’s wanker”

Lawsuit note: Vaughn Walker, the judge handling the fed court Prop 8 case, was counsel for the bad guys in the Gay Olympics case, S.F. Arts & Athletics, Inc. v. USOC, 483 U.S. 522 (1987). Not a good thing.

@Dodgerblue: Was he stealthily on the case? Because he’s not listed on the opinion…surprised to see Williams for respondents, he’s the hero of one of my crusading law school profs:

Mary C. Dunlap argued the cause for petitioners. With her on the briefs were Paul Hoffman, Susan McGreivy, and Fred Okrand.

John G. Kester argued the cause for respondents. With him on the brief were Edward Bennett Williams, Vincent J. Fuller, Richard G. Kline, Edward T. Colbert, and Joseph D. Lewis. *

[ Footnote * ] Robert H. Rotstein, Antonia Hernandez, E. Richard Larson, Abby R. Rubenfeld, Leonard Graff, and Armando M. Menocal filed a brief for the Mexican American Legal Defense and Educational Fund et al. as amici curiae urging reversal.

George Kaufmann and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.

Michael Ratner, Rhonda Copelon, Randall Glenn Wick, and Richard A. Perkins filed a brief for the Amateur Athletic Union of the United States et al. as amici curiae.

And yes, I am this much of an obsessive geek about this new fed case.

@SanFranLefty: He may have been on it at the District Ct or 9th Cir level. My law school classmate and known porn hound Alex Kozinski wrote an interesting dissent from the 9th Cir ruling.

@Dodgerblue: Now you’re going to make me pull up the lower court decisions?

@SanFranLefty: @Dodgerblue: Both of you – put down the briefcases and back away from the podium.

@blogenfreude: I’m also obsessed with baseball statistics and vintage jazz guitars. Here is my favorite porn site: http://www.archtop.com.

@Dodgerblue: You believe what you read in the Chronic? Mayor McDreamy said nobody would notice when Hearst pulls the plug. They only have 3 reporters left at that rag, and judging from the horrific grammar mistakes popping up on their website, the copy editors have all been laid off.

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