Proposition 8 Overturned: Supreme Court Battle Looms

At 4:50 pm EST this afternoon, Federal District Court Judge Vaughan R. Walker (District of Northern California)overturned California's Proposition 8, setting the stage for an eventual national showdown at the US Supreme Court.

California courts had earlier required Marriage Equality, and couples began to marry under the decision, but opponents gathered enough signatures to force a referendum on the issue popularly known as "Proposition 8." (Law-making by 'popular vote' is a traditional lawmaking route in the west of the United States, but is little used elsewhere. During the last generation, then-Governor Ronald Reagan opposed a ballot initiative supported by singer Anita Bryant that would have baned gays from teaching. The campaign propelled San Francisco mayor Harvey Milk into the national limelight as he pleaded with GLBT men and women to leave the closets and be counted among their neighbors and families. That ballot initiative ultimately failed.)

But this time, after more than 80 million dollars were spent campaigning, proponents of Prop 8 won by a vote of 52-48%, and Marriage Equality immediately ceased in California 5 months after it started. Two attorneys, David Boies and Theodore Olson(one a liberal Democrat and one a conservative Republican) then brought this suit on behalf of two gay couples and challenged the referendum vote in Federal Court on the basis of the 14th Amendment to the U. S Constitution, which requires the Equal Protection of Laws for all citizens in a case more properly known as Perry et al v. Schwarzneggar. Same-sex marriage had never been challenged on these Constitutional grounds before, and many gay-rights groups expressed everything from delight to nervousness to outright hostility at pursuing this avenue of attack.

During the trial, opponents of gay marriage saw their case fall apart, as 'expert' witnesses failed to show up or to provide evidence of their 'expertise,' while Boies and Olson brought in a parade of experts in marriage, family law, and psychology to show the discriminatory nature of Prop 8 and the campaign that surrounded it.

In the end, Judge Walker wrote:

"Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment...Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation...Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.“


This means that there are now TWO Federal Court rulings citing three different Constitutional provisions chipping away at systematic discrimination against gays and lesbians: This Prop 8 ruling, which places sexual orientation under both the equal protection and Due Process clauses of the 14th amendment, and Judge Tauro's decision in Massachusetts last month, which held that the so-called federal "Defense of Marriage Act" ("DOMA"), which prohibits the federal government from acknowledging the validity of same-sex marriages performed in the states where it is legal, was also unconstitutional under the 10th Amendment guaranteeing State's Rights in family issues.

There is little doubt that both of the California and Massachusetts decisions are headed to Appellate Circuit Courts, and eventually to the Supreme Court, where a decision of national import is likely to rest on the shoulders of the Courts only centrist, Justice Kennedy.

The Politicization of Supreme Court Nominees...and why Kagan should be swiftly confirmed

The Supreme Court of the United States ("SCOTUS") occupies a role at the heart and soul of American society. As a co-equal branch of government, the Court has consistently been willing to act where Constitutional duty required, but where political strength was weak. The end of the Seperate but Equal doctrine, the right of adults to purchase birth control, the right of those uttering offensive speech to continue to exercise that right, have all been secured by the Court when politicians lacked the spines to do so. By choosing jurists and scholars in love with The Law itself, the great 'American Experiment' has lasted and been strengthened because of the vigilence of an institution that can weather the inflamed but fading passions of mob rule.

From 1900 to approximately 1969, Court nominees were afforded respect by both sides of the aisle. In that time frame, 28 Justices were approved unanimously by voice vote. One was rejected. And only 13 were confirmed with a smattering of 'nay' votes.

It is interesting to note that in that time period, the opposition to some of those Justices would later prove an embarassment:

Louis Brandeis, one of the most brightest legal scholars in the Court's history, was confirmed in 1916 by an unusual "split' vote of 47-22. It is shameful to think now that the nay votes were at least in part generated because he was first Jew nominated the High Court.

Similarly, Thurgood Marshall - the Court's first African-American - would be approved by a split vote of 69-11 in 1967.

When Hugo Black received 16 "no" votes in 1937, it was largely due to rumors (later confirmed) that he had been a member of the Klan in his earlier years. Even those 'no' votes were bipartisan, however, consisting of 10 Republicans and 6 Democrats.

All in all, prior to 1969, 41 of 42 nominees were confirmed....28 (fully 2/3 of them)unanimously.

In the modern era, however, we have chosen to reverse this approach, and we have turned most Court confirmations into a political fight. Between 1969 and today, 19 nominations have been made to the nation's highest Court. Of these, 3 were rejected (Bork, Carswell, and Haynesworth); 1 withdrew from nomination (Harriet Miers in 2005); 10 were confirmed on split votes; and only FIVE (barely one-quarter) were confirmed unanimously. And those five were all before 1987 - over 20 years ago.

We somehow have come to the conclusion in the last few decades that Court appointees should be instruments of Political Doctrine, rather than impartial judges of the Law, and so interest groups from all sides raise funds and wage battle over almost every nominee. Both the Democrats and Republicans are equally guilty of this warfare, and both should be ashamed, as qualified, professional, brilliant judges have received 'no' votes simply based on partisan ideology. Conservatives needlessly withheld 31 votes from Justice Sonia Sotomayor, an eminently qualified Jurist, just as liberals withheld 42 votes from Justice Samuel Alito, Jr. on political grounds.

The question before the Senate should not be, "Will this person further our party's legislative agenda?" The question should be, "Is this person qualified to analyze complicated fact patterns and impart sound legal reasoning to actual cases in a way that brings honor the nation's Highest Court?"

By that standard, Kagan is qualified. End of Discussion. Republicans should assent to her confirmation, and reverse the modern trend towards "getting one of ours in."

Once confirmed, I will admit that there is one aspect of the Court's make-up that does raise a flag, and that is the lack of anyone from a protestant background on the court. In a large way, this is indicative of changes in American Society, and from that perspective it is a positive development. On the other hand, depending on the survey quoted, protestants still comprise about 50% of the population. Now, I pesonally do not believe in 'group' politics; I judge induividuals as individuals. But the nomination of Sonia Sotomayor last year began an interesting debate.

Justice Sotomayor was criticized for the following comment she had made:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life..."

What Justice Sotomayor suggested is that we are *all* a product of our backgrounds, and bring that background to the table with us. Often, that background gives us insights that others with differing backgrounds might not as readily understand.

I defended her remarks then, and continue to do so now. And so, I believe I am consistent when I suggest that a nation that has many, many devout Protestants may feel unrepresented because the insight that their particular background contributes may not find a voice on the Court. It is a legitimate concern.

But I am forced to wonder how many liberals who defended the 'wise latina' comment will simply dismiss protestant or evangelical concerns as lacking merit.

And I wonder how many conservative protestants who will now lament the loss of a 'protestant perspective' on the bench were willing to raise their voices in agreement when a wise latina woman offered the same arguement as they do now.

Of course, one could simply defend Sotomayor and criticize evangelicals - or vice versa - based on political positioning...an approach that will only perpetuate the destructive politicization of the Judical confirmation process. Better to recognize our diversity and differences and strive for balance...but to confirm Justice nominees based solely on qualifications.