JASON J. CZARNEZKI

In case you haven’t been following, a federal court in California overturned the state’s ban on gay marriage as violating the 14th Amendment of the U.S. Constitution.  The court stated:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

“Rational basis” is a legal term of art.  Since marriage is a fundamental right, the government bears the burden of proving that Prop 8 is narrowly tailored to meet a compelling state interest (i.e. strict scrutiny).  The lower court found that Prop 8 could not even survive rational basis review (a lower form of evaluation), let alone strict scrutiny.  The court opinion in full can be found here.

The plaintiffs’ case was argued by David Boies and Ted Olson, ideological opposites who were the attorneys  in the 2000 Supreme Court battle Bush v. Gore which decided the Presidency.  And, of note, Ted Olson was the Solicitor General under President George W. Bush.  What makes this fact so fascinating is that this case could ultimately be decided by the U.S. Supreme Court.

Now the question seems to be whether same-sex couples can begin getting married immediately or whether the decision of the district court should be stayed until the Ninth Citucit can rule.  It is both an interesting case in terms of substantive constitutional law, and now civil procedure.  My University of Chicago law school classmate, Dan Powell, former clerk to Supreme Court Justice John Paul Stevens and now Deputy Attorney General of California, just filed with the Ninth Circuit the CA AG’s Opposition to the Emergency Motion for Stay Pending Appeal.  In terms of the stay, the California Attorney General’s Office is arguing that same-sex couples should be allowed to marry immediately since while there may be administrative burdens if the marriages are later declared invalid, these burdens are outweighed by the district court’s conclusion that a constitutional violation is occuring.

We are witnessing the demise of American politics, and the end of politicians who can win a race on hard work alone.  With the Supreme Court’s  decision in Citizen United that removed restraints on corporations from financing federal political campaigns, the huge increase in spending in state judicial campaigns (which also harms judicial independence), and the astronomical somes of money being spent in statewide races, the politician that goes door-to-door, wins on ideas alone, and trys to meet people and build relationships is slowing departing the American political scene, unless he or she has a lot of financial backing to boot.  The President of the United States, Democrat Barack Obama, did not accept spending limits and federal financing during the 2008 election, and the NY Times reports that, in an effort to be the U.S. Senator from Connecticut, former World Wrestling Executive Linda McMahon spent $22 million to win yesterday’s Republican primary and is willing to spend an additional $28 million to defeat her Democrat opponent, Attorney General Richard Blumenthal, in the general election.  Legal issues surrounding the First Amendment aside, it is a sad day when money rather than ideas drive the political future of our country.

There are two flavors of judicial activism in the U.S. Supreme Court — liberal (e.g., the Warren Court) and conservative (e.g., the current Roberts Court).  The NY Times today has an article titled “Court Under Roberts Is Most Conservative in Decades.”  This is primarily due to the replacement of Justice Sandra Day O’Connor with Justice Samuel Alito.

A confluence of factors brought Justice Alito to the Court: the failure of the Harriet Miers nomination; the justices’ desire not to have two vacancies on the Court at once coupled with Rehnquist’s desire to hang on and O’Connor’s willingness to resign; the poor health of O’Connor’s husband; Rehnquist’s death.

With Alito replacing O’Connor, the Court has moved further to the right, and the data back this up (though I think how much to the right still remains to be seen).  Readers  of my former Empirical Legal Studies Blog will be pleased to see that the NY Times cites and uses data from Martin-Quinn Justice Scores, as well as data from Lee Epstein and Harold Spaeth.

Justice Alito was confirmed by a Senate vote of 58-42 (the second lowest vote total in history behind Clarence Thomas).  The Democrats could have mustered a filibuster.  Should they have?  In purely political terms, yes.  That  said, the next question is a far more difficult one: Should otherwise qualified jurists be kept of the court for political reasons?  This depends on one’s view of the role of the Court and the role of the Senate.

(Source of graphics: NY Times, http://www.nytimes.com/interactive/2010/07/25/us/20100725-roberts-graphic.html?ref=us)