Gay Rights: Taming the Crocodile in the Bathtub

      Long before gay marriage was a major legal issue, the California Supreme Court had to decide the constitutionality of a package of anti-crime proposals approved by the state’s voters as Proposition 8 in 1982. The critical vote upholding the ballot initiative a few months later came from Justice Otto Kaus, a well regarded judge then recently appointed to the state high court.
      After voting to uphold the initiative, Kaus reflected in an interview on the political stakes for a judge ruling on the constitutionality of a voter-approved ballot initiative. “It was like finding a crocodile in your bathtub when you go to shave in the morning,” Kaus said. “You know it’s there, and you try not to think about it, but it’s hard to think about much else while you’re shaving.”
      The California Supreme Court is set to hear arguments on March 5 on the constitutionality of another ballot initiative — by coincidence, also designated as Proposition 8. The new Proposition 8, approved with 52 percent of the vote on Nov. 4, aims to overturn the state high court’s landmark ruling five months earlier guaranteeing the right to marriage for same-sex couples.
      So far, supporters of Proposition 8 are avoiding direct threats to retaliate against any justices who vote to invalidate the ballot measure. But the legal briefs filed by the Proposition 8 campaign and dozens of other anti-gay marriage groups make clear that they will view a ruling to strike down the measure as a direct assault on democratic government .
      Legal arguments in the case, Strauss v. Horton, are much closer than the pro-Prop 8 rhetoric suggests. The same-sex couples and hundreds of pro-gay marriage groups challenging the initiative argue that the measure amounts to a “revision” of the state constitution, not a simple “amendment.” Under the state constitution, they explain, a “revision” cannot be proposed for voter approval by initiative, but only by the methods that predated the initiative process: a constitutional convention or a two-thirds vote in the state legislature.
      The state attorney general’s office rejects that argument, but — reversing its earlier defense of Proposition 8 — now finds the measure invalid because it violates the state constitution’s overarching command of equal rights. Specifically, Prop 8 denies a fundamental right — marriage — to a “suspect” class of persons, gay men and lesbians, entitled to special scrutiny of any laws singling them out for disfavored treatment.
      The legal issues are close, and the California precedents inconclusive. But the justices who divided 4-3 in the original case may be free to decide this one without undue fear of the crocodile in the tub.
      Judicial politics in California is substantially different from the 1980s. Back then, anti-tax, anti-crime, and other conservative groups had an easy target for their attacks on the state’s judiciary: Chief Justice Rose Elizabeth Bird. Bird was as politically tone deaf as she was ideologically liberal; the combination brought about her defeat along with two other judicial liberals in the 1986 elections.
      Since then, the California Supreme Court has been more conservative, yes, but also — on balance — more judicious and less doctrinaire. That evolution helps explain why four years after Bird’s ouster, the court in 1990 suffered no serious political consequences when it struck down a popular anti-crime initiative. Prop. 115 aimed to prevent state courts from going beyond federal law on constitutional protections for defendants. Notably for the current case, the court in Raven v. Deukmejian held Prop. 115 to be an improper “revision” of the state constitution because it would have altered the charter’s “substance” and “integrity.”
      Gay rights politics is also changing — voter approval of Prop. 8 to the contrary notwithstanding. Gay marriage supporters lost by only 4-1/2 percentage points: the closest of more than a dozen state elections. Nationwide, polls find growing support for gay marriage — and solid majorities between 55 percent and 60 percent for legal recognition for same-sex couples either as marriage or civil unions.
      The two other state supreme courts that have recognized marriage rights for same-sex couples — Massachusetts in 2003 and Connecticut last October — seem to be holding their own despite agitation by anti-gay marriage groups. And supreme court justices in the heartland state of Iowa gave every appearance of being well-focused on legal, not political, issues when they heard arguments in a gay marriage case in December; the case, Varnum v. Brien, remains under advisement.
      Conventional wisdom is shifting more strongly on other gay rights issues, including the once hot-button issue of gays in the military. In a Washington Post/ABC News poll in July, 75 percent of those surveyed favored allowing gays and lesbians to serve openly in the military — contrary to the current “don’t ask, don’t tell” policy. And anti-gay campaign planks appeared to give no boost to candidates in the November 2008 congressional elections. Rep. Barney Frank, the openly gay Democrat from Massachusetts, goes so far as to say there is now “no political price to pay” for supporting gay rights measures.
      Frank’s assessment may be truer in congressional than in state or local races, especially in red states in the South. But it helps suggest that California’s justices need not fear individual or institutional retaliation whichever way they rule on Prop. 8. The case may be hard, but the crocodile in the tub appears to have been tamed.

Justice 2.0: Hoping for Change to Believe In

The Bush administration left a legacy of having distorted or deformed the mission of many executive branch agencies. The State Department was frozen out of Iraq diplomacy and reconstruction. The Environmental Protection Agency was forced to ignore global warming. The Interior Department was transformed from a steward to a despoiler of public lands.
    No department suffered more, however, than the Justice Department. The Immigration and Naturalization Service, then part of Justice, grossly abused many of the aliens rounded up after 9/11. The Office of Legal Counsel produced legal opinions to give the president extraconstitutional powers as commander in chief and to define torture all but out of existence.
    The FBI was silenced in its objections to the “enhanced interrogation” techniques being used on suspected terrorists. The civil rights division was turned into an employment center for right-wing ideologues. And, most embarrassingly, Attorney General Alberto Gonzales allowed the unprecedented, politically motivated midterm dismissals of at least half a dozen U.S. attorneys and then dissembled about the episode under oath before congressional committees.
    Against that background, the Justice Department has nowhere to go but up under President Obama and the new attorney general, Eric H. Holder Jr. As a candidate, Obama sharply criticized the politicization of the Justice Department. As president-elect, he chose as one of his first Cabinet appointees the experienced and well-regarded Holder to head the department. In confirmation hearings, Holder and other senior Justice appointees assured the Senate Judiciary Committee that partisan politics will play no part in line-level hiring at Justice.
    Significantly, Obama made Holder — a former federal prosecutor, local superior court judge and deputy U.S. attorney general— the point man on his first major policy initiative. Holder’s Justice Department, not the Pentagon, was put in charge of reviewing the case files of the remaining 242 prisoners being held at the detention camp at Guantanamo Bay and fulfilling the pledge to close the facility within one year.
    Another, less dramatic harbinger of change came two weeks later at the Supreme Court. The solicitor general’s office moved on Feb. 6 to dismiss the Bush administration’s appeal of a lower court order requiring stricter regulation of mercury emissions from power plants. The federal appeals court in Washington had rejected the Environmental Protection Agency’s planned “cap and trade” system of regulating mercury as contrary to the Clean Air Act. The solicitor general’s office now says the EPA will adopt a plan consistent with the act.
    The solicitor general’s office had escaped most of the controversy over the politicization of the Justice Department. Paul Clement, solicitor general during Bush’s second term, won high praise from all sides not only as an accomplished advocate but also a straight shooter. Still, the solicitor general’s office was enlisted to help advance Bush’s political agenda at the Supreme Court.
    Under Clement, the solicitor general’s office sided during the 2006-2007 term with parents challenging racial diversity plans adopted by the Seattle and Louisville, Ky., school systems. It urged the court to overturn a century-old antitrust precedent against retail price fixing. At the White House’s direction, the solicitor general’s office during the next term refused to back up the Securities and Exchange Commission in an important securities fraud case. And in another case last term and one pending now, it backed businesses over consumers and state governments in endorsing federal preemption of product liability suits in state courts.
    The government’s position prevailed in all the decided cases. Most were decided by five-justice majorities over dissenters’ objections that the rulings either contradicted or disregarded established precedent. All were private suits that the Bush administration could have joined on either side or stayed out of altogether.
    As the new solicitor general-designate, Elena Kagan comes to the post with credentials and reputation nearly as sterling as Holder’s. As dean of Harvard Law School, she was widely admired by students and by professors from opposing ideological camps. Conservative blogs tried to rough her up in advance of her Feb. 10 confirmation hearings. The main exhibit was a brief she joined with other law schools challenging (unsuccessfully) the law that threatened a cutoff of federal funds to universities that barred military recruiters to protest the military’s “don’t ask, don’t tell” policy.
    Once confirmed, Kagan — like Clement before her — will be an advocate for policies often formed elsewhere. But one can confidently predict new stands on civil rights, consumer protection and government regulation. Still, in a worrisome sign for some civil liberties groups, Justice Department lawyers on Feb. 9 followed the Bush administration in endorsing the controversial “state secrets” privilege to block a suit by plaintiffs claiming they were tortured after being flown to other countries as part of the CIA’s “extraordinary rendition” program.
    Civil rights and civil liberties advocates may recall that a previous Democratic president, Bill Clinton, disappointed them on legal issues — for example, by signing a restrictive federal habeas corpus law and the Defense of Marriage Act. Those groups are giving Obama plaudits for his action on Guantanamo, but hawkish skeptics are noting that no one has been released yet. Obama’s other legal policies are even less well formed.