Shorter Glenn Garvin: Civil Rights Laws Were A "Tactical Mistake."

I'm going to do my level best to fairly summarize Glenn Garvin's column today on Judge Walker's landmark decision on Proposition 8:

1.  Eric Deggins is black and recently got a racist voicemail.


2.  This proves some whites still hate blacks despite the civil rights laws and all the judicial rulings on black/white relations.


3.  The Prop 8 lawsuit was not about allowing gays to marry because they have lots of other rights except specifically the right to marry.  

4.  Rather, the suit seeks to force non-gays to "socially accept and emotionally affirm" gays.


4.  This won't work because some whites still hate blacks.


5.  Thus, the "blunt force of government edicts" is a tactical mistake with respect to gays, just like it was with respect to blacks.


6.  Barry Goldwater was right.

There's so much wrong here I'm not sure where to begin.

Let's start with the civil rights laws.

Last I checked, they were not about white people "emotionally affirming" black people -- they were about fully enabling black people to vote, buy homes in white neighborhoods, marry white people, go to intergrated schools, drink from a white water fountain, sit anywhere they want on a bus, be able to eat at the Burdines lunch counter -- you know, that kind of thing.

That some whites still hate blacks does nothing to diminish the value or significance of the substantive rights established by judicial rulings and other "governmental edicts" regarding black people.

Moving on to the Prop 8 lawsuit, Glenn is woefully confused.

Judge Walker was not asked and did not make any rulings regarding the "emotional affirmation or social acceptance" of gay marriage.  He did not seek to abolish "irrational prejudice by government decree."  That's not what courts do.

He did make "findings of fact" and ruled, based on real, honest-to-goodness evidence presented at trial, that there is no "rational basis" to deprive Americans from the right to marry based on their sexual preference -- and that to do so violates the 14th Amendment.  (See Ted Olsen explain that to an incredulous Chris Wallace above).

Indeed, Judge Walker expressly refused to make any rulings regarding morality or the "emotional acceptance" of one view of marriage as opposed to another.  What he did evaluate is whether there are any tangible benefits to the State recognizing only heterosexual marriage, and found -- based on credible social science testimony -- that none exists.  That's why it is unconstitutional to deprive gay couples from the institution of marriage, because there are no legitimate empirical or utilitarian justifications to support the deprivation.

The fact that some whites still hate blacks doesn't mean Loving v. Virginia was wrongly decided.  In fact, more people support gay marriage now than supported interracial marriage in 1967 (only four percent(!) of the American public supported that right in 1958).

Get on the right side of history, Glenn -- or just go back to reviewing "Cougar Town."

SCOTUS Bans Broadcast of Proposition 8 Trial

More or less agreeing with Ed Whelan, a divided Supreme Court upheld its temporary ban on any broadcast of the Proposition 8 trial before ND CA Judge Vaughn Walker.

You can read the opinion here and Scotusblog's roundup here.

The per curiam opinion was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito.

A very sharp dissent by Justice Breyer was joined by Justices Sotomayor, Stevens and Ginsburg.

It strikes me as a highly unusual and ideologically-driven opinion, not unlike Bush v. Gore.

Indeed, I would say this does not bode well at all for same-sex advocates if and when this case hits the Supremes on the merits.

Ted Olsen will have his hands full.

Now Here's How You Criticize A Federal Judge.

Noted conservative lawyer and NRO legal contributor Ed Whelan tears into the Chief Judge of the Northern District of California, Vaughn Walker (a Bush I appointee), who is about to begin trial on the same-sex marriage case brought by Ted Olsen and David Boies.

Let's see --

1. He calls it a "show trial."

2. He says Judge Walker just wants publicity and is seeking to convert the proceedings into a

"high-profile, culture-transforming, history-making, Scopes-style show trial of Proposition 8’s sponsors. Specifically, Walker is rushing to override longstanding prohibitions on televised coverage of federal trials so that he can authorize televised coverage of the Proposition 8 trial. Televised coverage would generate much greater publicity for ringmaster Walker’s circus."

3. He says Judge Walker "wants to stack the deck against Proposition 8" and "has resorted to procedural shenanigans and outright illegality."

4. He says Judge Walker's acts are "in plain violation" of the rules prohibiting broadcasting federal trials and the "obvious purpose" of Judge Walker's actions is to subvert those rules (even though Whelan concedes that Judge Walker may be in "technical compliance" with the relevant federal statute).

5. He calls Judge Walker's actions "kangaroo-court procedures."

6. Whelan says "[o]nly an idiot or a hardened ideological advocate for same-sex marriage — and Walker is no idiot — would imagine that the Proposition 8 case is a good candidate for the program."

7. Whelan concludes that "[i]f Judge Walker persists in failing to recognize that elementary fact, the national civics lesson that he will be providing is yet another reminder that too many of our federal judges willfully abuse their authority in order to advance their own political agendas."

8. For good measure, Whelan did a follow up post, lamenting that "[t]here’s no end to Judge Vaughn Walker’s shameless procedural shenanigans" and that "the only 'immediate need' is for Walker to disqualify himself for his patent lack of impartiality — or for some higher court to step in."

You know, just to be safe, I'm gonna take another long look at Judge Zloch's order.

Are Ted Olsen And David Boies Just Better Than We Are?

Via AL there is an interesting post at PrawfsBlawg on the new suit by Ted Olsen and David Boies that challenges Prop 8 on Constitutional grounds.

I just read the complaint and think it's a total crapshoot, as the issues are framed as purely ones of Due Process and Equal Protection under the United States Constitution.

Professor Araiza questions the timing and motive of the suit, and notes that legal activists in the trenches are not too pleased that two huge Supreme Court bigshots have jumped into the fray:

I have got to assume that Olson and Boies picked this cause, and only then went looking for clients. Indeed, Olson's comments yesterday support this interpretation, which of course jibes with what we all know about high-profile lawyers like these two -- a lot of their work is all about causes, not individual clients per se.

If that's true then it's hard to avoid the conclusion that Olson and Boies have intervened in the strategy directed by other cause lawyers -- among others, the ones quoted in the Times article as expressing concern and even annoyance about the lawsuit -- who have made gay rights their lives' work. (Hence the title of this post.) At best this strikes me as naive; at worst (again leaving aside the cynical political explanation) it strikes me as an arrogant hijacking of a long-term process worked out by someone else. If Thurgood Marshall were still alive he would probably react to this lawsuit by expressing gratitude for the unpopularity of civil rights litigation in the 1930's: at least he didn't have to fend off others' attempts to bring a school desegregation case to the Court before the time was ripe.

I know a little about Boies and litigated with him (the 2000 recount) and against him (on a few commercial matters). I know many lawyers who now work with him. He's very skilled and impressive but can't just wave a magic wand and line up the votes on such a squirrely legal issue.

Olsen is a whole other can of worms, but I have to assume he's sincere and wants to win this on the merits.

Still, it's not a good sign that they apparently did not coordinate this filing with the folks who are litigating these issues on a daily basis.

As well-regarded as those two advocates are, I just don't see that factor adding a whole lot to this issue. Query if it will even make it to the Supremes, assuming the district court bonks it and the 9th affirms.

Either way there will be lots of pro bono hours racked up at those two firms.