Prop 8.

The California Supreme Court announced today that it will issue its opinion in the state constitutional challenge to Prop 8 on Tuesday. A lot has changed since the Court got the case, most importantly Iowa legalized gay marriage and so have a handful of other states in New England.

You’d think that wouldn’t affect the mind of California Supremes. But, they are a very hard to predict bunch and they are not the kind to limit what they consider.

I thought that maybe the advance of gay marriage in other states might sway the justices that I think aren’t in favor of striking down Prop 8 but originally ruled to legalize gay marriage to strike it. Maybe not, but I have another curious idea, which I’ll discuss below.

There are basically two questions before the Court. First, should the court strike Prop 8. For that, my final on the record prediction is, no, they won’t strike Prop 8, and I’m going to say the vote will be 5-2. Second, Prop 8 apply retroactively to the gay marriages that occurred between the earlier Cal Supreme case and Prop 8. They will say no, those marriages are valid 4-3, the same that ruled previously. There’s a chance this is 7-0 since the law on retroactivity is clear: it must be explicit in the law, and it’s not explicit.

Here’s a wrinkle, and I’m surprised I haven’t read this before or anywhere else. It’s probably out there, but just an idea.

The Supremes could rule that, even though Prop 8 is valid, is does not declare that gay marriage is against the fundamental public policy of the state. It just says that only marriage between a man and a woman shall be “recognized.”

Here’s the out: the U.S. Constitution generally requires that states recognize the marriages of other states. The exceptions are where fundamental public policy of the state conflicts. They might then say, hey, all of the gay marriages in Iowa, Vermont, Massachusetts, etc. must be recognized here because the U.S. Constitution language trumps the “recognized” language in Prop 8 and Prop 8 doesn’t unambiguously state the public policy of the state.

That would neuter Prop 8. Sure, people who can’t afford to go back east would still be impacted, but it would essentially moot the debate and would get the tourism lobby on the anti-8 side.

Just an idea. I’ll look and see if this has even been raised.


Of course it was raised before by Glenn Greewald, about a day after the election. I forgot about the issue of DOMA, which I can’t believe is constitutional. The California Supremes ruling on that would be weird, since I don’t see it raised by the Petitioners, Respondents, Intervenors, or several of the amici curiae whose briefs I looked at.

Does DOMA leave states with the option that the Supremes could invoke? I think so. Will update.


Yes. It leaves it up to the states. The Supremes could declare out of state marriages must be recognized, I guess.


It would be a miracle. In the original case, the Supremes said treating in state and out of state marriages differently would be difficult to square with the federal constitution. My only counter to that is that that case lays the equal protection groundwork of the Constitution and Prop 8 only carves out an exception limited to its provisions. As such, Prop 8 only says that, to the extent the state has such power, such marriages are not recognized. Since it cannot operate on out of state marriages or prevent the operation of the federal constitution from requiring such out of state marriages in California, except to the extent that it would change the public policy, which it does not do explicitly, then it simply prevents them in state.

I doubt this will be the outcome, but I think this issue has to be addressed. What about people who moved here from Massachusetts during the legal period? Is their marriage now void going forward? It seems hard to uncrack the egg here.


Gotta Go With Wood

I think Obama has to pick Diane Wood. If I could have anyone, she wouldn’t be it for a lot of reasons–first and foremost because I think the last thing we need is another federal appeals court judge on the Supreme Court. But, this is Obama’s first year in his first term and everything is going on. He needs a slam dunk.

Wood gets confirmed with 70+ votes without breaking a sweat.

Californians say, "Dude, Fuuuuuck you!"

Not that anyone voted (I read turnout was around 19%, an historic low), but those who did voted about 2 to 1 against Sacramento’s latest bailout. This time, the bailout was for the current incumbents, hoping that the coming fiscal reckoning wouldn’t come during their term limited lives. Arnold was hoping to pass the buck to Jerry Brown or Meg Whitman.

It didn’t work. Both parties are in big trouble because both caused this. The GOP’s side of the Faustian bargain was to be relegated to the minority, but to keep enough seats to get one or two things come budget time and to be able to vote against any tax increases, while the Democrats run the Legislature and mainly deal with the Governor. In the process the main constituencies of the Democratic party get special attention.

So many of the newspaper articles were full of comments like this.

“They kind of take each issue in a microcosm, rather than relate the decision to prior decisions, or future decisions that they might make,” he said. “Voters don’t think about the consequences of how one thing fits with another.”

Well, the system is set up for that. That shouldn’t be a surprise. But none of our “leaders” has the balls to come out and say we need reform that would limit that mob rule recklessness.

The Governor’s race for 2010 is wide open. Whoever lays out a comprehensive package of real reform will win, and it’s going to have to include in the message that we’re going to have to eat our vegetables too.


I didn’t support the mob coup against Gray Davis in 2003 that was based on his alleged failure in the power crisis—which was really engineered in 1996 during Pete Wilson’s reign and by Enron traders. I didn’t support his massive failure of ballot measures in 2005, and I certainly didn’t support his reelection in 2006.

But I knew that his election was inevitable due to a combination of public anger due to the power crisis and the pro-Republican wave following 9/11. I knew his reelection was inevitable because his opponent in 2006 was a typical California Democratic Party douchebag hack.

It was not on my list of high priorities in 2006, and I’m glad most Democrats put priority on Congressional races that year, because winning both houses of Congress was simply more important. Mostly this was because Schwarzenegger on the left-right spectrum is genuinely moderate.

But his politics aside he is a massive failure. California’s problems have gone from drastic to cataclysmic during his tenure. Sure the Democratic legislature bears its hefty share of responsibility, but they were able to get all of their members to vote for their agenda. Schwarzenegger couldn’t independently get one vote from his own party.

Neither he nor the Legislature has ever put any real reform (even though that’s what he ran on) before the voters. Instead, they keep putting band aid after band aid in front of us.

Now in the face of the imminent failure, Schwarzenfail releases a budget and a bunch of threats. I’ll have to release 38,000 prisoners and fire 5,000 more workers! Is that your problem, sir, or ours?

It really is that bad.

In some ways this isn’t news, but in others it is still shocking to hear.

Bush/Cheney used torture to build the case for the Iraq invasion and lied to Congress about it.

Can Obama really just let these men walk away from this? I know he has a lot to tackle, and the economy is the priority for the voters. Oh well, I guess there’s no statute of limitation on this kind of thing.

Where's the unquestioning patriotism now?

Have you seen the e-mails going around, talking about secession… how much better off the rest of the country would be without the blue states because they have the military and capitalism and we just have a welfare state and Hollywood?

All of the secession talk just shows you what happens when you punch a bully—he whines.

Seriously, for a party that has wrapped itself in the flag for so many years, to talk about secession is just about the most surreal thing I’ve seen.

Leaked SCOTUS Shortlist?

I’d go with Deval Patrick, Jennier Granholm, or Cass Sunstein.

I’m not interested in diversity by gender or race. I’m interested in diversity by getting someone on there that hasn’t been a judge forever or a law professor. I’m also interested in securing the seat for a long time. Take a physical. Sunstein is on there only because he’s a heavy, otherwise, I favor a non-judge this time.