Another Democrat Waffles on Gay Marriage
California's Attorney General, Democrat Bill Lockyer, has petitioned that state's supreme court to remove the four same-sex marriage cases currently in lower appellate courts to the supreme court. His rationale:
Now I am certainly not known for patience when it comes to the push for marriage equality, but this maneuver seems like a political ploy by Lockyer to suggest a more pro-gay stance than he really has. But it is nothing of the kind, and it should not be welcomed by gays.
I of course tend to leave the broad topic of California politics from the gay perspective to other bloggers. But from what I understand, Lockyer is an extremely ambitious politician who is itching to run for governor but is currently somewhat intimidated by Arnold Schwarzeneggar (Lockyer has instead announced his intention to run for state treasurer in 2006).
It was Lockyer who petitioned to have San Francisco mayor Gavin Newsom enjoined from issuing same-sex marriage licenses and to void those that had been issued. He has publicly proclaimed his view that California's DOMA is constitutional. He filed the appeal from the latest same-sex victory in California.
Indeed, Lockyer seems to be all over the map when it comes to gay marriage. He has said that he supports it, that he doesn't support it but believes in civil unions. Or did he just mean local domestic partnership laws?
Of course, it's very easy for elected politicians to speak out of both sides of the mouth on gay marriage. We have the Lockyer-Bloomberg flip-flop ("I favor it but I need to uphold the law as it exists..."), the John Kerry flip-flop ("it should be left up to the states..."), and the civil union approach ("everything except the word marriage because the Christians don't like it...).
Okay, enough politics. I report, you decide. Here's why, even if Lockyer truly is well-intentioned on the question of removal and consolidation to the California Supreme Court, it's still a bad idea.
Partisanship aside, appellate cases tend to reduce down to "battles of the briefs." The goal as an appellate advocate is to give the judges — via your briefs — the tools to decide in your favor. You organize the legislation, case law and scholarship in a way to guide the judges to the conclusion you want. Oral arguments, by contrast, play a minor, almost symbolic role, but the real contest is in the briefs.
And the intermediate appellate layer means more briefs, which means more and better arguments that can get to the supreme court. The intermediate appellate layer helps cull out the extraneous ballast that might distract the state supreme court.
If you truly believe that your position is the correct position legally (and we do), then you have no reason to fear an extra step in the process — it's far more likely to help you than hurt you. A hasty, rushed decision is far more likely to be, um, wrong. Fast law is bad law.
Keep in mind also that the California cases are being handled by the heroes of Lambda Legal, who have the resources and staff to handle multi-layered appeals, perhaps even more so than the the Attorney General does.
There is little to be gained from rushing the appellate process in California, and Attorney General Lockyer's removal proposal should be rejected.
A good summary of the history of same-sex marriage legislation and litigation in California is available here.
POST SCRIPT: There are three separate California ballot initiatives, currently in the signature-gathering phase, proposing to amend the California state constitution to ban gay marriage. The worst of which (PDF - 2 pages) is a pure bigot amendment as bad as Nebraska's that not only bans gay marriage but forbids any recognition of any non-marital partnership. In other words, it would expressly abolish any and all domestic partnership benefits. The initiative could appear on the ballot in 2006. Is it possible that Lockyer wants the California Supreme Court to accelerate the appellate process precisely with the hope that the court will mandate same-sex marriage, providing momentum for the 2006 initiative (i.e., create a wedge issue)? If the four cases stay in the lower appellate pipeline, then they would almost certainly not reach the state supreme court in time for the 2006 election. Just a thought.
UPDATE: The gay couples in the lawsuits are also calling for immediate review by the California Supreme Court. I hope they know what they're doing.
Review by the Court of Appeal will necessarily and substantially extend the uncertainty regarding whether California's marriage laws are constitutional. Same-sex couples should be given a prompt determination as to whether they can marry, and should not have to put their lives and affairs on hold indefinitely while this matter works its way through several levels of court proceedings. In addition, federal, state and local public officials should be given prompt clarification of their duties and responsibilities under California's marriage laws.This is course, utter nonsense. Which do you think gays would prefer — a prompt "no" or a delayed "yes"?
Now I am certainly not known for patience when it comes to the push for marriage equality, but this maneuver seems like a political ploy by Lockyer to suggest a more pro-gay stance than he really has. But it is nothing of the kind, and it should not be welcomed by gays.
I of course tend to leave the broad topic of California politics from the gay perspective to other bloggers. But from what I understand, Lockyer is an extremely ambitious politician who is itching to run for governor but is currently somewhat intimidated by Arnold Schwarzeneggar (Lockyer has instead announced his intention to run for state treasurer in 2006).
It was Lockyer who petitioned to have San Francisco mayor Gavin Newsom enjoined from issuing same-sex marriage licenses and to void those that had been issued. He has publicly proclaimed his view that California's DOMA is constitutional. He filed the appeal from the latest same-sex victory in California.
Indeed, Lockyer seems to be all over the map when it comes to gay marriage. He has said that he supports it, that he doesn't support it but believes in civil unions. Or did he just mean local domestic partnership laws?
Of course, it's very easy for elected politicians to speak out of both sides of the mouth on gay marriage. We have the Lockyer-Bloomberg flip-flop ("I favor it but I need to uphold the law as it exists..."), the John Kerry flip-flop ("it should be left up to the states..."), and the civil union approach ("everything except the word marriage because the Christians don't like it...).
Okay, enough politics. I report, you decide. Here's why, even if Lockyer truly is well-intentioned on the question of removal and consolidation to the California Supreme Court, it's still a bad idea.
Partisanship aside, appellate cases tend to reduce down to "battles of the briefs." The goal as an appellate advocate is to give the judges — via your briefs — the tools to decide in your favor. You organize the legislation, case law and scholarship in a way to guide the judges to the conclusion you want. Oral arguments, by contrast, play a minor, almost symbolic role, but the real contest is in the briefs.
And the intermediate appellate layer means more briefs, which means more and better arguments that can get to the supreme court. The intermediate appellate layer helps cull out the extraneous ballast that might distract the state supreme court.
If you truly believe that your position is the correct position legally (and we do), then you have no reason to fear an extra step in the process — it's far more likely to help you than hurt you. A hasty, rushed decision is far more likely to be, um, wrong. Fast law is bad law.
Keep in mind also that the California cases are being handled by the heroes of Lambda Legal, who have the resources and staff to handle multi-layered appeals, perhaps even more so than the the Attorney General does.
There is little to be gained from rushing the appellate process in California, and Attorney General Lockyer's removal proposal should be rejected.
A good summary of the history of same-sex marriage legislation and litigation in California is available here.
POST SCRIPT: There are three separate California ballot initiatives, currently in the signature-gathering phase, proposing to amend the California state constitution to ban gay marriage. The worst of which (PDF - 2 pages) is a pure bigot amendment as bad as Nebraska's that not only bans gay marriage but forbids any recognition of any non-marital partnership. In other words, it would expressly abolish any and all domestic partnership benefits. The initiative could appear on the ballot in 2006. Is it possible that Lockyer wants the California Supreme Court to accelerate the appellate process precisely with the hope that the court will mandate same-sex marriage, providing momentum for the 2006 initiative (i.e., create a wedge issue)? If the four cases stay in the lower appellate pipeline, then they would almost certainly not reach the state supreme court in time for the 2006 election. Just a thought.
UPDATE: The gay couples in the lawsuits are also calling for immediate review by the California Supreme Court. I hope they know what they're doing.
Posted by KipEsquire on
3 July 2005
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And on the fast-tracking issue, I have to agree with Paul (the commenter above). I doubt that the Supreme Court justices are going to learn anything new that they don't already know about the gay marriage issue, nor are there arguments to be made or briefs written that haven't already been made and written in the court of first instance. Both sides went into the original case with their arguments well prepared and rehearsed. As far as briefs in favor of gay marriage, the best brief so far was the opinion of Judge Kramer. I don't see how any future briefs could improve on that.
Lockyer, by contrast, is indeed acting within the scope of his duties, which is all the more reason why I accuse him of playing politics.
To the best of my googling, Lockyer has never once unambiguously and unequivocally declared that he is unconditionally in favor of gay marriage -- he tailors his rhetoric to his audience of the moment, and puts whatever qualifiers on his position he thinks maximizes his political positioning at that moment.
That's petty politics. And it annoys me no end.
(Another possibility that I might concede is that Lockyer, as a truly pro-gay politician, is so certain that the California Supreme Court will rule in favor of same-sex marriage that he sees no need for the intermediate appellate layer. But I've seen no one else posit or support that thesis.)