Wednesday, December 8, 2010
Obama Tax deal
Ugly and amateurish - I was upset, but this is all I could cobble together as I sneezingly take a 15 break from work.
Monday, December 6, 2010
Predicting the Proposition 8 Opinion - Pro-gay and narrow?
Informed viewers of the exchange between Judge Reinhardt, the liberal lion of the federal judiciary, and the darling of the Right, Ted Olson, (and who, we must remember, played a large part in creating our federal deficit) may have been puzzled. Ted Olson argued for the broader civil rights position - that prohibiting same-sex couples to marry violated the United States Constitution. Judge Reinhardt on the other hand, seemed to grasp at narrower positions. What may those be, and which would we prefer?
First, the court may find no standing. Judge Reinhardt seemed eager to find standing, though his other Democrat-appointed colleague, Judge Hawkins, seemed less convinced. So eager was Judge Reinhardt, that he began to push a seemingly puzzled David Boies on whether FRCP Rule 65, that would have applied Judge Walker's injunction to all those acting in "concert" with the governor/AG, meant that Imperial County's deputty clerk has standing (see my post below). As I explain in the post below, however, the standing argument is far from dead, and I think there is a fair chance that the matter may end there.
The second narrow ground, that all three judges kept returning to, was the fact that California gave all the rights of marriage, except for the term "marriage" to gay couples. The SF Chief Deputy Dist. Atty. Stewart and Olson both harped on this fact. If there was *any* other interest besides pure animus, then these other marriage-like rights would not be given to gays. Even if you want to nudge straight families into bringing life into the world only within a marital boudoir, such a vision would lose no luster by incorporating gay individuals (and if it did lose luster, Stewart argued, it would simply be animus that would cause marriage to seem less attractive - or "marketable" to use a term bandied about by Judge Smith - for incorporating gays).
Frankly, this argument makes me nervous - it increases the stakes for those opposing civil unions, and makes them better able to make a case that civil unions are the stepping stone for marriage. And that in turn negatively affects couples who don't give two figs for the term "marriage" but want civil unions in their states to ensure that they have the basic rights a loving couple should be entitled to. It may also incentivize more states to ban adoption/childrearing by gay individuals to prove that they *really* have an interest in prohibiting gay marriage. Hopefully, this parade of horribles won't come to pass, but I still would eschew overreliance on this argument.
If there is to be an animus rationale, rather than relying on existing civil unions law, I would prefer that it be based on Romer v. Evans, in which the Supreme Court invalidated a Colorado initiative that repealed municipal sexual orientation antidiscrimination ordinances, and forbade future antidiscrimination measures. Judge Reinhardt, joined by at least one colleague, kept noting the fact that this case was different because it "took something away." In other words, while Alabama's choice to deny any form of constitutional benefits is just fine and dandy since it NEVER has given any such benefits, California gave, and then tooketh away. This, they said, made it like Romer. Ted Olson agreed.
This seeming homage to the endowment effect (about which I will write a more theoretically slanted post later), imho, is slightly misleading. As defendants rightly noted, the Supreme Court has said in another case arising out of California, Crawford v. Board of Education, what state constitutions give, state constitutional amendments can take away - as long as such deprivations do not fall under the federal constitutional minimum. In Crawford for example, the U.S. Supreme Court upheld a California initiative that overturned desegregation remedies such as busing that were not required by the federal Constitution, but required by the California constitution as interpreted by the California courts. If Crawford is good law,this case cannot turn on the distinction that Prop 8 takes away previously endowed rights, in spite of (as Olson calls it) the "wall" of rights created by Lawrence v. Texas, Romer, etc.
Rather, the issue is that of animus. In Crawford, arguably, initiative proponents were arguably only defending federally recognized constitutional rights: the right of parents to have a say in how their child is educated, the right to be free of the racial discrimination to which one is subjected by certain desegregation plans. (While I know nothing about the actual arguments in the initiative in Crawford, I do know something about the very rational sounding "neighborhood schools" argument involved in the busing controversies of the 1970s in general). Here, however, animus was the only conceivable reason - as Stewart ably argued, the ballot materials seem to show a fear that straight marriage will be tainted by letting in gays. This animus is the distinguishing feature, the feature that makes this case like Romer and that makes the Proposition unconstitutional.
First, the court may find no standing. Judge Reinhardt seemed eager to find standing, though his other Democrat-appointed colleague, Judge Hawkins, seemed less convinced. So eager was Judge Reinhardt, that he began to push a seemingly puzzled David Boies on whether FRCP Rule 65, that would have applied Judge Walker's injunction to all those acting in "concert" with the governor/AG, meant that Imperial County's deputty clerk has standing (see my post below). As I explain in the post below, however, the standing argument is far from dead, and I think there is a fair chance that the matter may end there.
The second narrow ground, that all three judges kept returning to, was the fact that California gave all the rights of marriage, except for the term "marriage" to gay couples. The SF Chief Deputy Dist. Atty. Stewart and Olson both harped on this fact. If there was *any* other interest besides pure animus, then these other marriage-like rights would not be given to gays. Even if you want to nudge straight families into bringing life into the world only within a marital boudoir, such a vision would lose no luster by incorporating gay individuals (and if it did lose luster, Stewart argued, it would simply be animus that would cause marriage to seem less attractive - or "marketable" to use a term bandied about by Judge Smith - for incorporating gays).
Frankly, this argument makes me nervous - it increases the stakes for those opposing civil unions, and makes them better able to make a case that civil unions are the stepping stone for marriage. And that in turn negatively affects couples who don't give two figs for the term "marriage" but want civil unions in their states to ensure that they have the basic rights a loving couple should be entitled to. It may also incentivize more states to ban adoption/childrearing by gay individuals to prove that they *really* have an interest in prohibiting gay marriage. Hopefully, this parade of horribles won't come to pass, but I still would eschew overreliance on this argument.
If there is to be an animus rationale, rather than relying on existing civil unions law, I would prefer that it be based on Romer v. Evans, in which the Supreme Court invalidated a Colorado initiative that repealed municipal sexual orientation antidiscrimination ordinances, and forbade future antidiscrimination measures. Judge Reinhardt, joined by at least one colleague, kept noting the fact that this case was different because it "took something away." In other words, while Alabama's choice to deny any form of constitutional benefits is just fine and dandy since it NEVER has given any such benefits, California gave, and then tooketh away. This, they said, made it like Romer. Ted Olson agreed.
This seeming homage to the endowment effect (about which I will write a more theoretically slanted post later), imho, is slightly misleading. As defendants rightly noted, the Supreme Court has said in another case arising out of California, Crawford v. Board of Education, what state constitutions give, state constitutional amendments can take away - as long as such deprivations do not fall under the federal constitutional minimum. In Crawford for example, the U.S. Supreme Court upheld a California initiative that overturned desegregation remedies such as busing that were not required by the federal Constitution, but required by the California constitution as interpreted by the California courts. If Crawford is good law,this case cannot turn on the distinction that Prop 8 takes away previously endowed rights, in spite of (as Olson calls it) the "wall" of rights created by Lawrence v. Texas, Romer, etc.
Rather, the issue is that of animus. In Crawford, arguably, initiative proponents were arguably only defending federally recognized constitutional rights: the right of parents to have a say in how their child is educated, the right to be free of the racial discrimination to which one is subjected by certain desegregation plans. (While I know nothing about the actual arguments in the initiative in Crawford, I do know something about the very rational sounding "neighborhood schools" argument involved in the busing controversies of the 1970s in general). Here, however, animus was the only conceivable reason - as Stewart ably argued, the ballot materials seem to show a fear that straight marriage will be tainted by letting in gays. This animus is the distinguishing feature, the feature that makes this case like Romer and that makes the Proposition unconstitutional.
A new beginning - and the Standing Issue in Proposition 8 Oral Arguments
In 2004 Chris Geider and friends began De Novo as law students, which soon received much positive press.As of 2010, I was the last (extremely inactive) administrator left, and found that I needed to move it to a different platform to keep it operational. Thus, this is my attempt to revive this blog.
Given my line of work, there is no better way to begin than by talking about the Prop 8 arguments today before the Ninth Circuit. As I explain in an editorial (followup here) the CA governor and attorney general are not defending/appealing Prop 8. Do the proponents of Prop 8, a Deputy County Clerk, and a Board of Supervisors have standing to do so?
Supreme Court precedent is a bit murky as to the proponents of Prop 8. In a previous case, Karcher, the Supreme Court found that legislators *do* have standing with certain state court provisions conferring standing on them. In a later case, the Court expressed "grave doubts" about private citizens being able to enforce such measures.Ultimately, it will be hard for Prop 8 proponents to prevail - they perhaps had an interest in defending the Proposition as validly enacted law, but after succeeding in that, it must falls to those charged by the state to defend the law to do so - whether legislators as in Karcher, or the AG.
Imperial County presents a more interesting question . The deputy clerk claimed standing because she had to issue licenses, and was as such bound by Judge Walker's injunction (at oral arguments, the judges - Judge Hawkins especially - made much of the fact that the clerk herself had chosen to stay silent). Indeed, Judge Walker had said that the various county clerks had no discretion to "disregard" the defendants' (i.e. inter alia, the governor and AG's) direction.
David Boies first distinguished the governor/AG's obligation to follow the injunction from the clerk's obligation to follow the governor/AG's direction. In other words, *she* could not be held in contempt by the court for disobeying the order itself, but could be brought to account by the governor/AG in state proceedings. Thus the injunction did not affect her directly. Boies sidestepped a question from Judge Reinhardt as to whether this authority would have allowed the AG/governor to simply direct the clerk to ignore Prop 8, obviating the need for all this pesky litigation, noting that the AG/governor had never so directed. Imho, he should have responded by saying that that authority absolutely existed - that the deputy clerk would have had to obey the AG/governor, and that the AG/governor would have to brought to task by a separate lawsuit, similar to one in which the Pacific Legal Foundation, unsuccessfully tried to force AG Jerry Brown to defend Prop 8.
The issue may not be quite as clear cut, though I think, ultimately, there is no standing. First, Judge Walker's prohibited clerks from disregarding instructions by those "bound" by his injunction. Yet, arguably, he was simply describing state law - indeed, his sentence structure suggests that only the instructors and *not* the instructees, i.e., the "clerks," are "bound" by the injunction. Thus, additionally, while his order extended to those under the "control and supervision" of the defendants, it would seem that he meant "direct" control and supervision.
Yet, even if one concedes the point above, the clerk may still argue that her duty flows from the injunction, which forces the AG/governor to give her certain instructions.While this appears to violate the direct injury (and relatedly, the causation) requirement of standing, it seems that conservative members of the Court are willing to endow the principles of direct injury and causation with substantial flexibility when interests to which they are sympathetic are at stake.
Relatedly (perhaps) Boies also explained that the deputy clerk's was purely ministerial (relying in part on a case prohibiting Mayor Newsom from issuing marriage licenses). The distinction is a cloudy one, and may be certified to the California Supreme Court.
Finally, the issue of the Board of Supervisors' standing to intervene never really came up in the arguments, nor did I see a brief responding to the argument. The counsel for the Board notes in their brief that the City of SF had been allowed to intervene to represent a governmental interest argument - so why not them? Judge Walker's order denying Imperial's intervention does convincingly argue that the County does not sufficiently have a separate interest from the state of California to intervene in its own right, yet never explains why the City of San Francisco was given leave to intervene. It will be interesting to see if this argument gets any play in the opinions.
Given my line of work, there is no better way to begin than by talking about the Prop 8 arguments today before the Ninth Circuit. As I explain in an editorial (followup here) the CA governor and attorney general are not defending/appealing Prop 8. Do the proponents of Prop 8, a Deputy County Clerk, and a Board of Supervisors have standing to do so?
Supreme Court precedent is a bit murky as to the proponents of Prop 8. In a previous case, Karcher, the Supreme Court found that legislators *do* have standing with certain state court provisions conferring standing on them. In a later case, the Court expressed "grave doubts" about private citizens being able to enforce such measures.Ultimately, it will be hard for Prop 8 proponents to prevail - they perhaps had an interest in defending the Proposition as validly enacted law, but after succeeding in that, it must falls to those charged by the state to defend the law to do so - whether legislators as in Karcher, or the AG.
Imperial County presents a more interesting question . The deputy clerk claimed standing because she had to issue licenses, and was as such bound by Judge Walker's injunction (at oral arguments, the judges - Judge Hawkins especially - made much of the fact that the clerk herself had chosen to stay silent). Indeed, Judge Walker had said that the various county clerks had no discretion to "disregard" the defendants' (i.e. inter alia, the governor and AG's) direction.
David Boies first distinguished the governor/AG's obligation to follow the injunction from the clerk's obligation to follow the governor/AG's direction. In other words, *she* could not be held in contempt by the court for disobeying the order itself, but could be brought to account by the governor/AG in state proceedings. Thus the injunction did not affect her directly. Boies sidestepped a question from Judge Reinhardt as to whether this authority would have allowed the AG/governor to simply direct the clerk to ignore Prop 8, obviating the need for all this pesky litigation, noting that the AG/governor had never so directed. Imho, he should have responded by saying that that authority absolutely existed - that the deputy clerk would have had to obey the AG/governor, and that the AG/governor would have to brought to task by a separate lawsuit, similar to one in which the Pacific Legal Foundation, unsuccessfully tried to force AG Jerry Brown to defend Prop 8.
The issue may not be quite as clear cut, though I think, ultimately, there is no standing. First, Judge Walker's prohibited clerks from disregarding instructions by those "bound" by his injunction. Yet, arguably, he was simply describing state law - indeed, his sentence structure suggests that only the instructors and *not* the instructees, i.e., the "clerks," are "bound" by the injunction. Thus, additionally, while his order extended to those under the "control and supervision" of the defendants, it would seem that he meant "direct" control and supervision.
Yet, even if one concedes the point above, the clerk may still argue that her duty flows from the injunction, which forces the AG/governor to give her certain instructions.While this appears to violate the direct injury (and relatedly, the causation) requirement of standing, it seems that conservative members of the Court are willing to endow the principles of direct injury and causation with substantial flexibility when interests to which they are sympathetic are at stake.
Relatedly (perhaps) Boies also explained that the deputy clerk's was purely ministerial (relying in part on a case prohibiting Mayor Newsom from issuing marriage licenses). The distinction is a cloudy one, and may be certified to the California Supreme Court.
Finally, the issue of the Board of Supervisors' standing to intervene never really came up in the arguments, nor did I see a brief responding to the argument. The counsel for the Board notes in their brief that the City of SF had been allowed to intervene to represent a governmental interest argument - so why not them? Judge Walker's order denying Imperial's intervention does convincingly argue that the County does not sufficiently have a separate interest from the state of California to intervene in its own right, yet never explains why the City of San Francisco was given leave to intervene. It will be interesting to see if this argument gets any play in the opinions.
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