Thursday, August 5, 2010

Ted Olson's commitment to equal rights

As a commentary on American politics, Jon Stewart has just initiated an "I give up" segment on Comedy Central. Even Obama who has more of a grip than most, staggers as in a dream on Afghanistan and is watching - through high unemployment - the banks and the war complex get their way, "elect" a Congress even more to their liking. Still, there are bright things in American public life. Yesterday I emphasized Michael Bloomberg's words on freedom of conscience here and today, I want to honor Ted Olson's commitment to decency toward gays and lesbians. Olson was a clever, corrupt and authoritarian Republican lawyer, who "won" Bush v. Gore before the Supreme Court through the political "vote" of 5 Republican justices, notably the so far unreflective Antonin Scalia (there is no unpredictable cause in Scalia's life comparable to what Olson has engaged in). He then became solicitor-general under Bush, often arguing before the Supreme Court (the position held recently under Obama by Elena Kagan). But unlike John Ashcroft who attended Bush cabinet meetings and stopped taking commercial flights in March 2001, Barbara Olson, Ted Olson's wife, was tragically aboard one of the planes on September 11th. Perhaps so great a loss, so wrenching a mourning, turned Ted Olson to do something that counts in life. For he then decided, along with his great opponent in Bush v. Gore, David Boies, to take the case of Perry v. Schwarzenegger and defy the bigoted Proposition 8 against gay and lesbian marriages in California. That ban had barely won, pushed by big money from the Mormon and Catholic Churches who exemplify, in this respect, complete dishonor in attacking equal basic rights and fostering brutality and discrimination. If this is God's will, one might ask with Plato (see here), what would be an evil one?

Olson had long been troubled by violence toward gays. He himself drew disfavor from the bigoted circles in which he had moved, though many Republicans who were themselves decent and/or gay, probably reached out to him privately. As Judge Walker's decision reflects, the case they put on was, in Dahlia Lithwick's words below, one of science and evidence against homophobia. As history will judge, Olson (and Walker) rose above partisanship and did, passionately, the right thing.

Yesterday, Olson rightly "called the decision "a victory for the American people" and anyone who had been denied rights "because they are unpopular, because they are a minority, because they are viewed differently." (New York Times, Thursday, p. A4). As a Times editorial today says,

"The decision, though an instant landmark in American legal history, is more than that. It also is a stirring and eloquently reasoned denunciation of all forms of irrational discrimination, the latest link in a chain of pathbreaking decisions that permitted interracial marriages and decriminalized gay sex between consenting adults."

This victory for decency shows that anyone, perhaps not having to pay so great a price in suffering as Ted Olson, can stand up for what is right. It is hard for most people to abandon partisanships of various kinds (hardest of all in the elite perhaps to abandon partisanship, spurred on by the ever-hungry war complex, for the 5 American aggressions and occupations, and the vile movement, with contempt for democracy, toward yet another aggression against Iran). In initiating and carrying through this most important case, in standing for equal basic rights, Olson went his own way. He - and David Boies -deserve to be celebrated.

Judge Vaughan Walker, a Republican appointee to the court, laid out a decisive verdict, in reasoning and fact, for the equal rights of gays. As it showed in the Citizens United case, the Supreme Court is a reactionary, pro-business institution. There are now 4 votes for bigotry (as there are 4 votes for a permanent police state/"commander in chief" power in a "state of the exception"). But bigotry was defeated yesterday, and the force of Judge Walker's decision will be remembered.

New York Times editorial:

"Marriage Is a Constitutional Right
August 4, 2010

Until Wednesday, the thousands of same-sex couples who have married did so because a state judge or Legislature allowed them to. The nation’s most fundamental guarantees of freedom, set out in the Constitution, were not part of the equation. That has changed with the historic decision by a federal judge in California, Vaughn Walker, that said his state’s ban on same-sex marriage violated the 14th Amendment’s rights to equal protection and due process of law.

The decision, though an instant landmark in American legal history, is more than that. It also is a stirring and eloquently reasoned denunciation of all forms of irrational discrimination, the latest link in a chain of pathbreaking decisions that permitted interracial marriages and decriminalized gay sex between consenting adults.

As the case heads toward appeals at the circuit level and probably the Supreme Court, Judge Walker’s opinion will provide a firm legal foundation that will be difficult for appellate judges to assail.

The case was brought by two gay couples who said California’s Proposition 8, which passed in 2008 with 52 percent of the vote, discriminated against them by prohibiting same-sex marriage and relegating them to domestic partnerships. The judge easily dismissed the idea that discrimination is permissible if a majority of voters approve it; the referendum’s outcome was “irrelevant,” he said, quoting a 1943 case, because “fundamental rights may not be submitted to a vote.”

He then dismantled, brick by crumbling brick, the weak case made by supporters of Proposition 8 and laid out the facts presented in testimony. The two witnesses called by the supporters (the state having bowed out of the case) had no credibility, he said, and presented no evidence that same-sex marriage harmed society or the institution of marriage.

Same-sex couples are identical to opposite-sex couples in their ability to form successful marital unions and raise children, he said. Though procreation is not a necessary goal of marriage, children of same-sex couples will benefit from the stability provided by marriage, as will the state and society. Domestic partnerships confer a second-class status. The discrimination inherent in that second-class status is harmful to gay men and lesbians. These findings of fact will be highly significant as the case winds its way through years of appeals.

One of Judge Walker’s strongest points was that traditional notions of marriage can no longer be used to justify discrimination, just as gender roles in opposite-sex marriage have changed dramatically over the decades. All marriages are now unions of equals, he wrote, and there is no reason to restrict that equality to straight couples. The exclusion of same-sex couples from marriage “exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage,” he wrote. “That time has passed.”

To justify the proposition’s inherent discrimination on the basis of sex and sexual orientation, he wrote, there would have to be a compelling state interest in banning same-sex marriage. But no rational basis for discrimination was presented at the two-and-a-half-week trial in January, he said. The real reason for Proposition 8, he wrote, is a moral view “that there is something wrong with same-sex couples,” and that is not a permissible reason for legislation.

“Moral disapproval alone,” he wrote, in words that could someday help change history, “is an improper basis on which to deny rights to gay men and women.”

The ideological odd couple who led the case — Ted Olson and David Boies, who fought against each other in the Supreme Court battle over the 2000 election — were criticized by some supporters of same-sex marriage for moving too quickly to the federal courts. Certainly, there is no guarantee that the current Supreme Court would uphold Judge Walker’s ruling. But there are times when legal opinions help lead public opinions.

Just as they did for racial equality in previous decades, the moment has arrived for the federal courts to bestow full equality to millions of gay men and lesbians."

"A Brilliant Ruling: Judge Walker's decision to overturn Prop 8 is factual, well-reasoned, and powerful.

By Dahlia Lithwick Wednesday, Aug. 4, 2010

Judge Walker ruled Prop 8 unconstitutional. Judge Vaughn R. Walker is not Anthony Kennedy. But when the chips are down, he certainly knows how to write like him. I count—in his opinion today—seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law). In a stunning decision this afternoon, finding California's Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," quotes Walker. "'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation," cites Walker. "Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate," Walker notes, with a jerk of the thumb at Kennedy.

But for all the lofty language about freedom and morality, nobody can fairly accuse Judge Walker of putting together an insubstantial or unsubstantiated opinion today. Indeed, the whole point of this legal exercise—the lengthy trial, the spectacularly detailed finding of facts (80 of them! with subheadings!)—was to pit expert against expert, science against science, and fact against prejudice.

It's hard to read Judge Walker's opinion without sensing that what really won out today was science, methodology, and hard work. Had the proponents of Prop 8 made even a minimal effort to put on a case, to track down real experts, to do more than try to assert their way to legal victory, this would have been a closer case. But faced with one team that mounted a serious effort and another team that did little more than fire up their big, gay boogeyman screensaver for two straight weeks, it wasn't much of a fight. Judge Walker scolds them at the outset for promising in their trial brief to prove that same-sex marriage would "effect some twenty-three harmful consequences" and then putting on almost no case.

Walker notes that the plaintiffs presented eight lay witnesses and nine expert witnesses, including historians, economists, psychologists, and a political scientist. Walker lays out their testimony in detail. Then he turns to the proponents' tactical decision to withdraw several of their witnesses, claiming "extreme concern about their personal safety" and unwillingness to testify if there were to be "recording of any sort." Even when it was determined that there would be no recording, counsel declined to call them. They were left with two trial witnesses, one of whom, David Blankenhorn, founder and president of the Institute for American Values, the judge found "lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponent's factual assertions." Blankenhorn's credentials, methodology, lack of peer-reviewed studies, and general shiftiness on cross examination didn't impress Walker. And once he was done with Blankenhorn, he turned to the only other witness—Kenneth P. Miller—who testified only to the limited question of the plaintiffs' political power. Walker wasn't much more impressed by Miller, giving his opinions "little weight."

Then come the elaborate "findings of fact"—and recall that appellate courts must defer far more to a judge's findings of fact than conclusions of law. Here is where Judge Walker knits together the trial evidence, to the data, to the nerves at the very base of Justice Kennedy's brain. Among his most notable determinations of fact, Walker finds: states have long discriminated in matters of who can marry; marital status affects immigration, citizenship, tax policy, property and inheritance rules, and benefits programs; that individuals do not choose their own sexual orientation; California law encourages gay couples to become parents; domestic partnership is a second-class legal status; permitting same-sex couples to marry does not affect the number of opposite-sex couples who marry, divorce, cohabit, or otherwise screw around. He found that it benefits the children of gay parents to have them be married and that the gender of a child's parent is not a factor in a child's adjustment. He found that Prop 8 puts the force of law behind a social stigma and that the entirety of the Prop 8 campaign relied on instilling fears that children exposed to the concept of same-sex marriage may become gay. (Brand-new data show that the needle only really moved in favor of the Prop 8 camp when parents of young children came out in force against gay marriage in the 11th hour of the campaign.) He found that stereotypes targeting gays and lesbians have resulted in terrible disadvantages for them and that the Prop 8 campaign traded on those stereotypes.

And then Walker turned to his conclusions of law, finding that under both the Due Process and Equal Protection clauses:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Is that the end of it? Oh, no. Judge Walker is already being flayed alive for the breadth and boldness of his decision. The appeals road will be long and nasty. Walker has temporarily stayed the ruling pending argument on a stay. (Rick Hasen argues it may be wise for him to stay the order pending appeal for tactical reasons.) Any way you look at it, today's decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one's own humanity. The real triumph of Perry v. Schwarzenegger may be that it talks in the very loftiest terms about matters rooted in logic, science, money, social psychology, and fact."

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