how to count to four
“All you need to know [about the Supreme Court] is how to count to five.”
-Justice William J. Brennan-
Dorky law school story: Justice Brennan–accordingly to my first year Constitutional Law professor who was friends with a former clerk–used to call all his new clerks into his office on Day 1, sit them all down, and ask them what they thought the most important thing about The US Supreme Court was. Brilliant legal minds all, the answers would range from “interpreting original intent” to “concepts of federalism” to “the breadth of judicial review” and so on. The Justice would then smile and say that all were good answers, but wrong. Because, in the end, “All you need to know is how to count to five.
With the California Supreme Court, you need only count to four (seven justices, instead of nine). Last month I predicted our likely success in an in-court effort to overturn Prop 8. In making this prediction, I took into account the language of the previous case (In re Marriages), what I had read of several of the briefs, some of the practical policy arguments, and my own raw hope and optimism. It was a reasonable number of factors to consider, but I neglected one crucial one: how to count to four.
The battle over same-sex marriage in California has been long, confusing, legally sophisticated, emotionally charged, and at times dramatic to the point of almost soap opera caliber. It began with young Mayor Gavin Newsom, the steps of San Francisco City Hall, and a couple together for 50 years. The couple marched up the stairs of the building and asked for a marriage license on February 13, as they have done for years. On a rainy February 13, 2004–the Office of the Clerk of San Francisco gave them one.
And that is when San Francisco was swallowed by fire. Oh, wait… actually the light rain kept up, word got out, and couples lined up around the block for days.
4,000 couples later, the California Supreme Court finally stopped the marriages. They were ultimately invalidated across the board.
But what began as a ’stunt’, ended up in a San Francisco Superior Courtroom as a suit by the City & County of San Francisco (among others). The plaintiffs contended the state’s ban on same-sex marriage violated equal protection and the rights of same sex couples under California’s explicit right to privacy. Remarkably, a Roman Catholic Wilson appointee of a superior court judge agreed. And issued an opinion striking the ban. That judge’s name was Judge James Warren. He is former United State Suprem Court Chief Justice Earl Warren’s grandson.
We drank champagne, they railed against us, and everything went to an appellate court. The appellate court reversed Judge Warren. We appealed, and the Attorney General–the party required to fight against us–joined in the petition for review in the state’s highest court. (In a moment of truly laudable legal integrity, the Attorney General agreed that no verdict from any tribunal lower than our state’s highest would do to settle this matter)
To the Supreme Court we all went. And, ultimately, four of the seven justices who sit in the hallowed halls of the Ear Warren Courtroom, said under the California Constitution the prohibition of same-sex marriage constituted an impermissible denial of a fundamental right based on a suspect classification. It also emphasized the important role of the courts in just these kinds of deliberations. We drank A LOT of champagne. 18,000 couples married, including the very first ones–who put on the same outfits and did it again. And Proposition 8 was certified for the November ballot shortly thereafter.
Del Martin passed away in late August.
After each side spend roughly $40 million dollars, by a vote of 52% to 48% (or 4%… i know), Proposition 8 passed. The next day, groups filed legal challenges to its validity.
Today we heard the oral arguments for those challenges. The attorneys gathered again in the Earl Warren Courtroom. The arguments were novel, subtle, sophisticated, and even fairly esoteric. Most California attorneys could barely follow them (as many of us had previously scrambled to find comprehensible summaries so we could explain the issues to our friends and family). But all that really matters is the the four count.
Last year, Chief Justice George wrote the majority opinion. He was joined by Justice Moreno, Justice Werdegar, and Justice Kennard. Four.
Justices Corrigan, Baxter, and Chin dissented. Three.
But where Justice Kennard wrote a concurring opinion in the last case lauding the role of the courts in these kinds of disputes and in the protection of minorities rights under the constitution, today she seemed to feel the only real issue before the Court was the effect of Proposition 8 on the marriages solemnized before Election Day. And when Assistant Chief Deputy San Francisco City Attorney Therese Stewart referenced Justice Kennard’s forceful previous language, the Justice fired back that the previous case was completely different–it was decided based on a California Constitution that has since been amended.
How to count to four…
I never much cared for Brennan’s pithy quote about the Court. I always preferred Justice Hugo Black:
“Under our Constitution, the courts stand against any winds that blow
as havens of refuge for those who might otherwise suffer because they
are helpless, weak, outnumbered, or because they are the non-conforming
victims of prejudice and public excitement.”
But in the end, final scores are final scores. And out of seven, there’s really only one way to four.
asleep at the wheel
GM announced a short time ago that it was considering cutting Saab. I announced GM was retarded–Saabs are their only cool cars. Then GM explained that the Saab was only profitable in 1 year since GM acquired its 50% stake in 1990. I am sure they proffered this explanation in support of an argument claiming their good business sense. Naturally, most people simply responded, “Why on earth did it take them this long?”
Which brings us to capital punishment (seamless transition, wasn’t it?) and a similar question.
The budget crunches in many states have led states to do what any business does–look at what is expensive and unhelpful and consider cutting it [well, the good ones do more than consider it]. An increasingly common denominator among states facing “financial Armageddon” [our governor out here in the Golden State has such a way with end of the world words... i think it might have something to do with that one series of movies] is emerging: should we just get rid of the death penalty?
Naturally we thought of it first in California; as, apparently, our Armageddon was more dramatic [probably because our governor was in that one series of movies]. An ACLU study helped us along. Basically, the gist was the death penalty is expensive, unproductive, and controversial. Mark Leno, Chairman of the State Senate’s Public Safety Committee, wrote in the Marin Independent Journal, that capital punishment runs the state roughly $250 million a year. $117 of that goes to additional costs of death row housing, paying the deputy district attorneys and (usually) the deputy public defenders in the case, and court costs. [For those unfamiliar, death penalty cases themselves are significantly more expensive--containing a bifurcated guilt and penalty phase and a mandatory appeal, among other required expenses that are... quite frankly... very expensive]. Another $136 will go to initial construction costs for a brand spankin’ new death row facility [California has the biggest death row--something that, undoubtedly, annoys Texas] that will ultimately run around $400 million to complete and will cost about $1 billion to run for its first 20 years.
But to balance our budget, we cut education; health care for the poor, elderly, and children; food for the same; and treatment for drug addiction and mental illness. Now some people are beginning to discuss perhaps, instead of slashing programs that work, cutting a very expensive program with very debatable utility.
Now other states are jumping on the bandwagon… sort of. CNN.com reported just today that Kansas elected officials have started kicking around a similar idea. Namely, state Senator Carolyn McGinn [she's a Republican, by the way... apparently math has become increasingly nonpartisan] has penned an opinion piece noting that capital cases run the state about $500,000 more than non-capital cases. Some estimates are even higher [a 2008 Urban Institute study put the number at closer to $1.1 million per case in Kansas, factoring in generally higher-paid attorneys, investigators, expert witnesses, and the like]. The aforementioned ACLU study generated a similar number for California cases.
Bills proposing abolition of capital punishment are also debated in New Mexico and Colorado, also partially for fiscal concerns. And on a county-by-county level, economics play into charging decisions.
I am personally opposed to capital punishment, but that is not really the point right now. You can be pro-capital punishment but still pro-math. Just like you can be pro-Saab, but still pro-math [though, I am really gonna miss the 9-3 convertible]
The point is that the practice has always been controversial, it was always been of highly debatable efficacy in terms of deterrence, and now it might just be downright unaffordable.
But the real question is.. in the face of numerous studies signaling the ineffectiveness of capital punishment, and numerous more suggesting a highly flawed system, that now we look to the massive expense of the system only because we are on the brink of financial ruin state-by-state… much like GM with Saab:
what on earth took so long?
bigots, babies, and where we go from here
march 5 is groundhog day in California.
almost exactly a year after the California Supreme Court (you might remember them from some of the campaign ads if you are a CA resident–they were the ‘San Francisco judges’ who overturned heterosexuality), heard arguments regarding the state’s ban on same-sex marriage, they will hear oral arguments in challenges to the newly minted ban on same sex-sex marriage (a.k.a., prop 8. you might remember it, if you haven’t been hiding under a rock).
and march 5, we will do it again. well, kind of… it’s not exactly groundhog day out here on the left coast. last time we debated the merits of same-sex marriage before our highest court. the Court held, basically, that the California Constitution stands for it. this time (if you’re both a legal AND a political geek like i am) is actually more interesting. we will debate the merits of the California Constitution standing for something. it is effectively an argument over how we are governed: is it by ballot box? or, is it by ballot box, legislators in a building, another person in another building, a bunch of judges in yet another building (this one happens to be called the Earl Warren Courtroom), and a constitution as a foundation for it all?
the legal story is interesting, like is said, if you are a geek.
happily, the rest of the story is more interesting (and doesn’t nearly require a legal degree or quite as much geekiness to follow). and it is this rest of the story that i have deemed a harrowing tale of bigots, babies, and where we go from here.
the bigots:
depends on who you ask. after the election, it was the Mormon Church, the Catholic Church, Rick Warren, black people, liberals who decided to put people out of business for giving money to the Yes on 8 campaign, liberals who called people bigots, gay people who were mad at black people, and, finally, Barack Obama–who picked aforementioned bigot Rick Warren to give a prayer at the inauguration none of us had ever heard of prior to Rick Warren being picked to give it.
there was a whole lot of hatred to go around.
the babies:
well… also lots. mainly, those who resorted to blame games and name-calling instead of staying on message. those who reacted with foot-stomping and threats instead of self-reflection, analysis, and maybe even a little personal accountability. those who, after losing a campaign we should have won largely because we did not bother to engage the religious community, decided to disengage from the religious community even more grandiosely by doing things like boycotting the inauguration because Rick Warren was invited.
oh, and as for those who blamed new voters and the black community for voting against us instead of pointing out that the other campaign explicitly targeted them and reflecting on why we did not… well that’s not just being a baby–-that’s being unacceptable.
where we go from here:
a friend of mine asked if i thought an person could be opposed to same-sex marriage without being homophobic. i said i was not sure, but it always seemed like even the most sophisticated and tepid arguments against it always boiled down to some underlying homophobia. he responded, “then why can’t we just call them all bigots?”
that seems to be the burning question for a lot of people: why can’t we just call them all bigots if that is what they are? the easy answer is just to say, “because it is not productive”. the real answer is more along the lines of, “because it doesn’t matter”.
perhaps it is an internal sense of justice ground into so many of us, but we–whether or not it is founded in any religion–want some ultimate, omniscient arbitrator of right and wrong somewhere in the sky keeping score. we want it to matter, in terms of justice and in terms of morality, when someone is prejudiced; namely, we want it to hurt them. the problem is that, by and large, (and at least in our lifetimes) it does not hurt them. it hurts us because we are fewer and they are more. and we will never get a (forgive the pun) ‘come to Jesus moment’ from them. no one will never come to us, hat in hand, and apologize for his sins. and the more our rhetoric demands it–the less likely any change in position becomes
we have to make it easy for them to make it better for us.
so yell and scream if you want. pout if you want. disengage if you want. but the simple fact is that, at some point, if we want equality irrespective of sexual orientation–and without it being a battle that stems decades, seemingly without end (see, e.g., choice rights)–we will have to engage the religious communities that are evidently better at campaigning than we are. we will have to talk to the people who voted for prop 8, and we may even have to talk to the Rick Warren’s.
and i don’t say this because i think we will lose the court battle. it’s just the opposite–and this impending success in court sets the timer now. we have roughly 4 months to explain to 52 percent of the California electorate what the Court will say in an opinion that will be too long and too hard (and too boring) for the average voter to peruse: that this should never have been on the ballot. happily, the easiest way to do this might also be the easiest way to change minds on the issue. namely, instead of calling people bigots (whether or not that’s what they are), we call people liars if they lied and cheaters if they cheated.
it is well understood in the progressive community that the Yes on 8 campaign lied about schools, lied about children, and lied about churches and tax exemptions. it is also an open secret that unimaginable amounts of money poured in from out of state, and through what appeared to be church-directed efforts that the average Californian would take serious exception to. it is also possible that campaign finance laws and laws regarding the political activity level of non-profit organizations (churches, for the most part) were outright flouted. so, we start by saying that. (liars and cheaters)
basically, we make changing yes-voters’ mind on this more user-friendly by telling them they were duped (lied and cheated). they may never be comfortable with same-sex marriage. they may never be able to distance the idea from some notion of sexual acts with which they grow even more uncomfortable. personally, i don’t care. not for now, anyway.
what California voters are more familiar with is the notion that sometimes propositions go terribly wrong.
so instead of the message being, “you’re a bigot”, it becomes, “you were targeted, you were lied to, and we did a lousy job of talking about it. BUT that is exactly why prop 8 should be invalidated because that is exactly why it should not have been on the ballot to begin with. elections are imperfect, campaigns are sometimes deceptive, propositions are sometimes a mess, and some rights are just too important for all that.”
and this right is just too important. too important to fall victim to some kind of perpetual ballot-measure back and forth. and far too important to fall victim to our own frustration.
so, vowing to take the rights away from any group that engages in conduct for which you disagree… that is being a bigot.
stomping your foot in frustration and name-calling in anger… that is being a baby.
but turning the execution of the Yes on 8 campaign into the current argument for marriage equality… that is where we go from here.
a victory we can drink to
Let me preface this by saying that most of my family is Mormon, and I love and respect them all intensely. Thus, my jabs at the religion and its folks in this post are mostly playful, and not an intended as addition to some of the sometimes alarming vitriol that has emerged in the time since the Church launched headlong into a campaign against my marriage rights. That being said, I take exception to the Church’s role (and, concededly, victory) in this… and to the fact that we aren’t allowed to drink beer or wine like every other G*d-fearing American at family holidays. (Instead we have to drink some kind of terrible punch made with Martinelli’s that gets the kids so hopped up on sugar they might as well be doing lines and gives me a headache like a box wine.)
With this frustration in mind, i give you a story of champagne, Martinelli’s, and math.
you think you won, and i think you are doing the wrong math.
so, before those in your church (and others of similar political inklings) pop the plastic cap on the Martinelli’s in raucous celebration of vanquishing the haunting specter of same-sex couples entering into long-term, committed relationships that are called the same thing as the institution opposite-sex couples that have been making such a mockery of for decades (53% failure rate? Seriously? Do you people take vows seriously at all?)… let’s double-check the math.
now, I will disclose right up front that I was a Political Economy major at Berkeley. So, my math is undoubtedly of the ‘fuzzy’, ‘liberal’ variety. Plus, it’s hindered by the fact that I do all my mathematical calculations in between bites of cheese, and without ever putting down my wine, and with my copy of the Red Book, Special Edition of the Homosexual Agenda (laminated parchment—it’s very nice), and lesson plan for comprehensive, orientation-neutral sex education for 3-year olds clutched firmly in the other hand at all times. But let’s just assume, for the sake of finishing this article… and my glass (which I will now admit is effectively pink champagne– Chandon Rose. it’s delicious) … that I can successfully add, subtract, and divide.
When I was just a wee senior in high school, long before I knew my champagne would ever be pink, an initiative was on the ballot known as Proposition 22. The initiative struck me as wildly unfair, but I was one of the only people I knew who saw it as such. It, unsurprisingly in retrospect, passed by a whopping 22.8 points (61.4% to 38.6%). It was bolstered by a little over $8 million on contributions, or, a little under double the amount raised by the opposition campaign. Money disparity notwithstanding it was, by the recollection of most, a fairly tepid campaign.
This year a similar measure was on the ballot, except it actually purported to amend the correct part of California law—good work, team.* It passed as well. The campaign was not tepid.
The anti-pink champagners declared decisive victory.
But, like a good wine, California seems to get better with age. And eight years is a long time in California. Long enough to go from a nearly 23 point victory, to a 4.4 point victory. Long enough for support for a ban on same-sex marriage to drop 18.4 points… or 2.3 points a year. Oh, long enough for the fundraising to go from one side nearly doubling the other, to even-Steven (and Steven).
So, here is the other Berkeley stuff that you will all hate. After we used to finish our fuzzy math, we would often have the audacity to try to make something of the numbers. We would look for patterns and trends. When we would get really excited, we would graph trajectories and try to use those trajectories to extrapolate future outcomes.
Doesn’t take a math major, an economics major, or even a liberal to figure out where this trajectory goes, does it?
So I will, because I am feeling generous after all these lovely bubbles, give you our worst-case scenario. I will concede that this measure passed fair and square, and the vote accurately reflects public sentiment (which I do not believe is the case). And I will allow for the possibility that the California Supreme Court will not deem this a revision and allows Proposition 8 to stand (which I find unlikely).
Even with all that… this is your victory? This was your ‘D-Day in the culture war’? We are—by my fuzzy math—all of two years from California support for a ban dropping below 50%. In fact recent polling shows that even amongst those who voted for Proposition 8 on Nov 4, 8% fewer would cast the same vote now. So we are one election cycle… maybe two from democratic support falling to our side. Oh, and fundraising you into the ground.
Well, let me be the first to wish you congratulations on your happy victory—which appears it will have an even shorter lifespan than the modern-day, heterosexual marriage. You truly showed us. You also showed us a thing or two about tactics, honor, and ruthlessness. Don’t worry—we were watching. We learned.
So in two years, maybe four if we’re feeling generous, we’ll have the opportunity to afford you the highest form of flattery: imitation.
And in the interim, we get President Barack Hussein Obama… and champagne. You get sparkling apple cider… and a ticking clock.
crunch those numbers. cheers.
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* The language of Proposition 22 stated that it defined marriage as the union between a man and a woman in California. However, it amended the portion of the Family Code (section 308.5) that pertained to the recognition of foreign marriages. This lead to the argument that the initiative had only intended to block the recognition of same-sex marriages performed in other states (such as Vermont—where the possibility loomed at the time), and did not speak to California’s own position on solemnizing marriages between same-sex couples. The Supreme Court ultimately interpreted the measure broadly based on voter intent and understanding of the measure, and not it’s arguably poor drafting. However, the humorous nature of the execution still remains. At least to me.