Hank Plante on Prop 8: The Arc of History is Clear
By Hank Plante
Special to Calbuzz
Tuesday’s court victory upholding same-sex marriage in California should come as no surprise to anyone who’s been paying attention to changing public opinion on gay rights.
And judges pay as much attention to these shifting trends as the rest of us, whether they like to admit it or not.
[Photo by Shutterstock] The fact is, few issues break down by generation as much as this one, with younger millennials favoring gay rights by 20 points more than seniors.
“All we need is one good flu season,” one gay rights leader told me, “then we’ll get everything we want.”
The most recent Gallup Poll on gay marriage (done in May of 2011), found, for the first time, a majority of Americans (53%) favor same-sex marriage.
This is a broad jump from the year 2000, when the big controversy was over civil unions for gays. Vermont’s supreme court and then-Governor Howard Dean made theirs the first state to offer such unions, which provide some of the same rights as marriage.
Now, civil unions have become the Republican default position, easily supported by people like former President George W. Bush, who much prefer them to marriage.
But Tuesday’s ruling by the 9th Circuit U.S. Court of Appeals found that civil unions or domestic partnerships are not the same as marriage, as clearly shown by the most memorable line in the 128-page ruling:
“Had Marilyn Monroe’s film been called ‘How to Register a Domestic Partnership with a Millionaire,’ it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.”
The right side of history: Not only judges are paying attention to changing public attitudes.
Last November 70 of America’s top companies, including Microsoft, CBS and Nike, filed legal briefs opposing DOMA – the so-called Defense of Marriage Act, which prohibits federal recognition of same-sex marriage. The companies said DOMA is bad for business and it costs them money because of extra paperwork. Clearly, these big corporations are betting that they’ll be on the winning side of history after DOMA is decided.
Just this week, Lloyd Blankfein, the chairman of Goldman Sachs, became a corporate spokesman for marriage equality. What does gay marriage have to do with Wall Street? No doubt Mr. Blankfein is sincere, but also consider that Goldman Sachs – lightning rod that it is – could use a few friends. Besides, this is a firm that knows how to bet on the future.
No one personifies the shift in public opinion on marriage equality more than the woman leading the charge in Congress to repeal DOMA, U.S. Sen. Dianne Feinstein.
She’s come a long way since 1982 when, as Mayor of San Francisco, she vetoed a Domestic Partnership bill passed by the Board of Supervisors. (A popular joke in the gay community at the time was: “Mayor Feinstein must think Domestic Partners is a housecleaning service.”)
Feinstein’s position on the subject has evolved so thoroughly that she is now the leading advocate for gays and lesbians in the U.S. Senate.
To the east of us, six states and the District of Columbia now have same-sex marriage, with the next battles headed for Maryland, New Jersey and the state of Washington – where Starbucks, Amazon and Microsoft support the gay side.
California, the usual trendsetter, has been left in the dust since the botched $43.3 million dollar campaign opposing Prop. 8 four years ago; it’s worth noting that we could have had gay marriage if Gov. Arnold Schwarzenegger hadn’t vetoed it twice after it was passed by the Legislature. (Only later did we learn just how cavalierly he takes the whole marriage thing).
So the fight had to take place in the courts, and it was notably led by three straight men: Hollywood liberal Rob Reiner, who retained two heavyweight lawyers to fight the Prop. 8 case, liberal David Boies and conservative Ted Olson. Olson is an old-fashioned conservative, from the days when their position was that the government should stay out of your bedroom (and your medical clinic).
In an interesting side note, Olson & Boies went to court to prevent three gay-friendly legal groups from joining them in the current case, because of those groups’ opposition to taking this case to federal court (all sides now say they’ve patched-up their differences).
Whither the Supremes? Boies, Olson and the other lawyers on the case will be busy if, as expected, it now goes to the U.S. Supreme Court, where an outcome can’t be predicted.
After all, the High Court upheld Georgia’s anti-sodomy law in the 1986 “Bowers vs. Hardwick” case. But then, in 2003, the court reversed itself and struck down a similar Texas sodomy law in the “Lawrence vs. Texas” case. With that, the Court essentially decriminalized homosexuality in the United States.
What changed in the 17 years between those two cases? Time and public opinion. And that’s what continues to change. Any political consultant can tell you, the thing to watch during a campaign is not just today’s polls, but which way the poll numbers are trending. And the trend line on gay rights is very clear.
As Jon Davidson, from the pro-gay Lambda Legal Defense Fund, put it after Tuesday’s ruling, “The tide is not turning; it’s turned.”
(Hank Plante is an Emmy and Peabody Award-winning reporter who covered the Prop. 8 trial for KPIX TV in San Francisco).
At least 5 of the justices are going to be very concerned about 1. Whether there is a rational basis in this case to enact a symbolic law expressing disfavor with and overturning a judicial ruling on state law. And 2. Whether the definition of marriage is an issue for the states not the courts to decide in the absence of federal legislation, because there is no substantial federal question. The msm generally does a poor job explainin why justices do what they do. Unfortunately I don’t think the tide of history is going to be as determinative in outcome as the implications this case has, including for areas other than gay rights. If this case is won it won’t be on the shaky grounds put forward by the panel, that the constitution prohibits taking away a right once granted in this case because there is no rational basis for it other than animus, it will be by pronouncement that same sex couples have a fundamental right to marry.
I’d suggest that you go back and re-read the opinion much more closely, which clearly noted that gays and lesbians enjoyed the fundamental right to marry under the California Constitution, as it was interpreted by the California Supreme Court, and that the state’s voters had no business revoking that right absent a legally compelling rationale.
I would offer that, like Judge Walker’s opinion before it, this was a meticulously crafted legal decision that actually leaves the U.S. Supreme Court very little wiggle room. If Roberts, Scalia and Co. are to strike it down, they must be willing to forgo the merits of the arguments and make a blatantly political and highly prejudicial decision in order to do so.
Constitutional rights can be found under either the state’s or US constitution. They are not equivalent. Prop 8 was an amendment to the California Constitution. Generally an amendment will abrogate prior inconsistent judicial holdings. Here the Ninth Cir invalidated the state law as it violated federal protections because it had no rational non-discriminatory purpose. The fundamental right I was referring to, is a yet unrecognized federal one. But I could see how what I said could be confusing.
I would only add that the people tend to take as purely political any judicial decision they don’t agree with.
But when has Antonin Scalia ever hesitated to make “a blatantly political and highly prejudicial decision”?
Mr. Olson, on the other hand, made a rather surprisingly passionate argument on the Rachel Maddow Show last night on why this is in line with other rights that have been extended over the years. He pointed out that the president’s parents wouldn’t have been allowed to marry in some states up until 1967, and that the courts have fairly consistently struck down laws that discriminated against classes of people for no reason except emotion.
I have long considered the arguments put forth by pro-prop-8 groups completely bogus. I remember the argument that marriage was for procreation. Yet nobody proposed limiting it based on infertility, a decision not to procreate, or simply being too old to bear children. At 62, I can still legally marry–even though my childbearing years are far behind me. My lesbian neighbor, who had a child by artificial insemination, can’t. Then there was the one that gay parents were bad for children–despite studies that show this is not true. Or the straight father who just killed both his sons by blowing the house up in Washington state. And last, but not least, there was the laughable argument that gay marriage somehow damages the whole institution of marriage. After two failed heterosexual marriages, I’m not in the same class as Liz Taylor, Zsa Zsa Gabor, or even Newt Gingrich. But I can assure everybody that whether or not gays and lesbians could share my wedded “bliss” had absolutely nothing to do with why they failed. However, I can readily see how all of this nonsense is making a laughing stock of the whole idea of marriage. Even more than Newt has.
This case, or the issue, is sooner or later going to wind up before the U. S. Supreme Court, and I am not optimistic about the chances there for gay marriage. This is, after all, the home of Thomas, Scalia, Roberts, et al. They have never hesitated to make a political decision based not on the law and precedent, but their own ideology. Same with the mandate provision on the president’s health care law, by the way. They’ll rule against it.
sqrjn is probably right: The Prop 8 decision was narrowly drawn to say there was no rational basis to take away a right that had been previously established. But that right was the result of the court overturning Prop 22 — not an act by the Legislature or by the voters. The conservatives on the SCOTUS could decide to a) declare that Prop 22 was wrongly decided, thus no right to marry existed and thus was not taken away by Prop 8 or b) say since the Prop 22 ruling establishing the right to marry was so new, the voters had the right, by ballot measure, to refine it. The liberals on the SCOTUS would likely try to uphold the Prop 8 ruling on its narrow grounds and avoid deciding on the basis of a fundamental right to marry. That’s probably the only way they’d get Kennedy on board.
Interestingly enough I think we can say with confidence that SCOTUS will definitely not do a) because the In Re Marriage case, the Cal S. Ct. decision that invalidated Prop 22, was based on an interpretation of the state constitution. SCOTUS gives incredible deference to a State Supreme Court interpreting state law.
With the interplay between federal and state law and who’s in charge of interpreting what, this stuff gets complicated and fascinating.
b. seems possible, some legal commentators have argued that courts should actually show more deference to legislation by initiative, because there won’t be a clear legislative history, you won’t be able to know what was in the minds of individual voters. Relying on political advertising or what the AG writes in elections pamphlets is not as reliable as a Senator laying out in writing what a bill means and why they are voting for it and because well.. its the people legislating directly and the people are the people, vox dei what not.
Nothing quite so fun for a journalist to misrepresent facts for a poll. The margin of error in the study was +/- 4% which puts the results squarely in question.
Courts should not be making decisions based on public opinions, they should be interpreting law, not opinion. Opinion should be interpreted by politicians.
(look here – http://www.gallup.com/poll/147662/first-time-majority-americans-favor-legal-gay-marriage.aspx)