New York’s Enlightenment & Some Thoughts On Perry Prop8 Case

Liberty & Justice by Mirko Ilic

New York gets it done for marriage equality:

Lawmakers voted late Friday to legalize same-sex marriage, making New York the largest state where gay and lesbian couples will be able to wed and giving the national gay-rights movement new momentum from the state where it was born.

The marriage bill, whose fate was uncertain until moments before the vote, was approved 33 to 29 in a packed but hushed Senate chamber. Four members of the Republican majority joined all but one Democrat in the Senate in supporting the measure after an intense and emotional campaign aimed at the handful of lawmakers wrestling with a decision that divided their friends, their constituents and sometimes their own homes.


Senate approval was the final hurdle for the same-sex marriage legislation, which was approved last week by the Assembly. Gov. Andrew M. Cuomo signed the measure at 11:55 p.m., and the law will go into effect in 30 days, meaning that same-sex couples could begin marrying in New York by late July.

Outstanding. A friend in New York told me this was going to happen and that it would be done late and on Friday night, because that is how monumental and controversial legislation gets done in Albany historically. And that is exactly how it came down. You can almost feel the awesomeness of New York all the way out here in the desert.

But I want to touch on the bigger picture and what the enlightened New York action means to the push for marriage equality for all across the nation. In short, this is huge. And the Times notes just that:

In New York, passage of the bill reflects rapidly evolving sentiment about same-sex unions. In 2004, according to a Quinnipiac poll, 37 percent of the state’s residents supported allowing same-sex couples to wed. This year, 58 percent of them did. Advocates moved aggressively this year to capitalize on that shift, flooding the district offices of wavering lawmakers with phone calls, e-mails and signed postcards from constituents who favored same-sex marriage, sometimes in bundles that numbered in the thousands.


But New York could be a shift: It is now by far the largest state to grant legal recognition to same-sex weddings, and one that is home to a large, visible and politically influential gay community. Supporters of the measure described the victory in New York as especially symbolic — and poignant — because of its rich place in the history of gay rights: the movement’s foundational moment, in June 1969, was a riot against police inside the Stonewall Inn, a bar in the West Village.

The trend is not limited to New York, nationwide the latest numbers have 53% of Americans favoring same sex marriage. Quite frankly, it is hard to believe that the numbers might not be even higher if the relevant question was framed in the more appropriate language of “marriage equality” instead of the more charged “same sex” marriage; but even with the more inflammatory framing, a distinct majority now favor it. The right wing wedge canard is losing its luster; it is increasingly clear marriage equality is going to happen for all, it is simply a question of when.

Which brings us back to the point of the prime spear for accomplishing the deed: Perry v. Schwarzenegger (now technically Brown). Perry is now, and has been from the outset, the best vehicle for not only bringing marriage equality for all, but doing so in a transcendent and binding legal opinion, and likely with a finding and basis that it is mandated by the Constitutional edicts of Equal Protection and Due Process. That is the holy grail because it would almost certainly place such discriminatory animus against the gay within some level of elevated scrutiny, and that will bleed over immediately into the DOMA fight and the consideration of any and all discrimination against such individuals.

But there is one potential problem – if there is not some vehicle for the Defendant-Intervenors in Perry to establish standing on the appeal, the case may go no further than the 9th Circuit and, even with victory, be binding on no more than the state of California (and it is remotely possible only for the counties Los Angeles and San Francisco as those were the two jurisdictions originally plead in Perry).

Therein is exactly why I have always said Ted Olson, David Boies, AFER and the Perry plaintiffs were mistaken, and tactically incorrect, to affirmatively contest standing on appeal as they point blankedly have. The movement of society on marriage equality ideologically has been in the right direction for some time now. Even, as the Gallup poll cited above indicates, by the general populous that does not have the sophistication to understand it in Constitutional terms.

No matter what the result in the trial level of Perry, and there was never any real doubt how Vaughn Walker was going to rule – not because he was gay, but because he was a very good and proper judge – the matter was going to go to the 9th. There has been, and remains, little doubt how the 9th will rule. But that does not necessarily get the case to the Supreme Court, and that is why the standing issue is so critical.

As you may recall, the issue of standing was punted by the 9th down to the California Supreme Court, where the matter is currently pending.

Between last night’s marvelous happening in New York, the clear cut and admirable new policy by the Obama Administration, and the ever enlightened movement of society, I think the writing is on the wall for the California Supreme Court, and I think they will indeed find that the D-Is have the requisite standing, the 9th will roll with that and away we go to the United States Supreme Court. I truly believe the New York passage will leave such a marker that will carry all this through, and that is a beautiful thing.

As I am going out on a limb here, let me go one step further out. The Supremes will seal the deal. If you read Lawrence v. Texas, penned by Anthony Kennedy, and are a Kennedy watcher, it is extremely hard to see how he will not maintain consistency with his Lawrence decision and vote for marriage equality. I think that was the case from the start, and the action of New York, and, yes the Obama Administration, makes it almost certain. Justices do not want to look like asses in history, the way things are going, the margin may be even more favorable than 5-4 if we get to that point. Wouldn’t that be beautiful?

[The absolutely incredible graphic, perfect for the significance and emotion of the moment is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

35 replies
  1. PhilPerspective says:

    Justices do not want to look like asses in history, the way things are going, the margin may be even more favorable than 5-4 if we get to that point. Wouldn’t that be beautiful?

    How can you claim this? Meaning the first part. Roberts, Scalia, Thomas and Alito have no trouble looking like asses. Has Kennedy been more open on social issues than he has on economic ones?

    • bmaz says:

      As to Tony Kennedy, absolutely. He actually seems to consistently look for fairness on social justice issues, and has grown in that regard during his term on the court. Here is a very good discussion on Kennedy and Prop8 by Dahlia Lithwick. Even when Dahlia wrote this nearly a year ago, I thought Kennedy looked pretty good for Prop8. But I think the ground has shifted monumentally since then for the reasons stated in the post: now a majority of Americans support it, more states have passed it, the Obama Administration has actually made a forceful shift in policy (which really is extremely important) and, of course, having the GOP controlled New York legislature pass it as they did last night is just freaking huge. I am convinced these factors will really hit home with Kennedy big time.

      And, not to mention, Perry is literally framed to get to Kennedy, Vaughn Walker clearly constructed his opinion with intentional aim square at Kennedy, and did so extremely effectively.

    • Becca says:

      Justice Kennedy wrote the majority opinion in the Lawrence v. Texas case — so yes, in social matters, he leans progressive.

      • bmaz says:

        I don’t know that I would go so far as “progressive”; maybe moderate. That said, he really does seem to have a moral problem with unfairness and discrimination in relation to social issues.

  2. scribe says:

    BMAz, the tactical wisdom of Bois et al. raising the standing issue is one place we part company. I think they had to raise it, because the courts have an affirmative obligation of their own to investigate standing. By raising it themselves, Boies, et al. brought it up in a context they could control and therefore were most able to present it in a manner they thought would be most beneficial to a decision in favor of their clients on the merits. It’s not dissimilar to having a witness with a really cruddy problem that an adversary could exploit to their advantage on cross – you bring it out yourself on direct and pull the sting, controlling the context.

  3. Cynthia Kouril says:

    Let me point out that this law comes just in time for celbration at NYC’s Gay Pride Parade this Sunday. Personally, I think they ought to break out the ticker tape for this one.

    • scribe says:

      I think we can be sure of that, or something similar, happening. They’ll probably carry Cuomo the whole distance on their shoulders if he lets them.

  4. AdamB says:

    My suspicion is that if this makes it to the Supremes, Kennedy takes it in a Romer/Cleburne/Moreno direction and focuses on the animus associated with taking away the label “marriage,” rather than creating a 50-state freestanding right to marriage equality. This time.

    • bmaz says:

      I don’t think so; I think he will cowboy up and get it done. I might could have bought the direction you state a little less than a year ago when Dahlia wrote the piece I linked, but I think the die is cast now and Kennedy will step up Lawrence style.

      • AdamB says:

        But it’s not necessary for deciding this case, just as resolving the equal protection standard-of-review question wasn’t necessary for Lawrence (and only O’Connor, of the majority, went there). And I especially think you may get that limited opinion if, as I suspect (but wouldn’t predict firmly), the Chief Justice wanted to join the majority it order to steer it that way.

        • bmaz says:

          Well, we shall see how the 9th frames its opinion. If, as I suspect, it tracks Vaughn Walker, I think the Supremes are going to have a pretty tough time ignoring equal protection. Now I agree it is possible that they decide on narrower grounds, but they are still going to have to go through the hoop to get there. And I think Ginsburg is going to push hard and light them up if they chicken out. What you suggest may indeed be so, but I do not think it is truly that easy. And, keep in mind, even assuming things proceed apace, it would still be quite awhile before it reaches their hands. Look how different the ground looks today than it did the day Walker ruled. If this keeps up at all in the way it has, I think SCOTUS is in a rock and a hard place and will grudgingly just suck it up and go for it.

          Maybe I am overly optimistic, but if the case gets there in the posture I suggest, that is how I see it. I will grant that it is more than possible that something occurs to bugger up my assumptions on posture along the way. I was absolutely convinced the standing issue was going to do that for a while, but based upon word from friends very knowledgeable on the Calif Supreme Ct, I feel quite a bit better about that currently. But that, and several other places could put a kink in my scenario. We shall see. It is all fascinating though to watch play out.

  5. JohnLopresti says:

    There*s some kind of decennial based parsing of demographic data getting published in the region where I reside, explaining people seem to be trying informal living arrangements much more than even ten years ago.

    Something about the New York theme of the post reminded me of a few NY politicians I followed only when propinquity appeared to indicate it was worthwhile; still, characteristic personalities which fit the NY scene: One of the originators of the War Powers Resolution of 1970, liberal Republican Jacob K. Javits; and an early voice calling for Nixon*s resignation, Bella S. Abzug.

  6. mattcarmody says:

    So we have to hope that Justice Ginsburg stays healthy AND that Barry can eke out a victory in 2012, although I don’t trust him to replace her with anyone who is going to make a positive difference in the lives of working class Americans.

    • bmaz says:

      I would hazard a guess Obama may try to put Cass Sunstein on the court if and when he has another opening. And, no, that would not be real positive for working class Americans.

  7. DWBartoo says:

    A most superb post, bmaz (as usual)!

    And your comment @ 15 is masterful understatement.

    Obama would surely like to leave the legacy of Cass Sunstein to put the final “icing” on the Obama trademark.

    Sunstein is, already, in a postition of very negative influence, as you well know.


  8. onitgoes says:

    Thanks for some very happy news (for a change). This is great. Best to all concerned and fingers crossed for a final positive outcome in Perry v. Schwartenegger in CA. This is all way past due.

  9. Teddy Partridge says:

    Thank you for this post, bmaz.

    With allies like you, we cannot lose. As someone wrote today, the arc of history is bending away from Barack Obama. Will he get astride this movement or watch it progress without him?

    • bmaz says:

      Obama is ridiculously behind the curve and already looks like a dithering idiot. He was for it in 1996; as you know, he actually signed two separate attestations to that effect, but changed his mind when convenient to do so for rank political posturing.

      So the President is now alleging that that signature is a forgery? And he only realized this today? Why didn’t the White House tell anyone this version of events two years ago when Ben did this story? Or any time over the past 15 years that this story has been reported over and over again?

      It’s one thing for the President not to support gay marriage (and it would be a problem nonetheless). But this President supported gay marriage, repeatedly, and now claims he doesn’t. And now he appears to be lying about the issue.

      That’s not fierce advocacy.

      That is more than a recurring theme with Mr. Obama; it is who and what he is. He is simply a smother John McCain, simply willing to say whatever is convenient at the moment for Barack Obama. His word means nothing, his positions mean nothing.

  10. rosalind says:

    ot: an accident that seems to be getting under-reported as it occured out of range of easy media access – up to 45 people unaccounted for in a horrible crash between the Amtrak Zephyr train and a big rig:

    Federal transportation safety officials said numerous bodies remained onboard a Chicago-to-Emeryville Amtrak train in the Nevada desert after a gravel-hauling tractor-trailer rig slammed into it east of Reno at midday Friday…Scores of victims were sent to hospitals with injuries, while as many as 45 remained unaccounted for, federal officials said.

    sfgate link

  11. peterboy says:

    which of the four horsemen joins the sane side to make it 6-3 or better?
    i dont see it.
    Roberts is the only possibility.
    the others are full-time Medival in their beliefs and concepts around fairness, rights and equality.

    • bmaz says:

      Yeah, Roberts was who I had in mind when I said it was possible. I don’t think probable by any stretch of the imagination, but if there is another year or more of movement towards acceptance like the last year has shown, it may not be totally out of the question. I will say this, I think the only extent Roberts would ever do that would be in a narrow concurring such as Adam contemplated at 7 and 12 above

  12. tomtallis says:

    You’ve missed one very large salient point:

    California is unique and I believe that any SCOTUS decision will rest on that uniqueness.

    California is the only state to have had legal equal marriage for approximately five months. During that time, approximately 18,000 same-sex couples (including my husband and I), were married. Then the right was taken away, leaving 18,000 couples legally married, and tens of thousands of other couples, otherwise identically situated, who want to be married but are barred by law from getting married.

    If that isn’t a violation of the equal protection clause, I don’t know what is.

    I see the SCOTUS, assuming it gets that far (I don’t think it will, and I disagree with bmaz on his/her guess on how the California SC will rule), the SCOTUS will rule narrowly and not create a nationwide right to marriage, but simply rule on the equal protection aspects of the case, declare Prop H8 unconstitutional on that basis and have the ruling apply only to California’s unique situation.

    • bmaz says:

      Well, the way the case is postured, any ruling on unconstitutionality under Equal Protection would be almost impossible to restrict to California as you suggest. And the way Vaughn Walker set up his opinion quite craftily minimized the ability to focus on the argument you seem to think makes California so “unique”. so, with all due respect, I do not think you are properly relating the legal posture of the case and how it is framed in the opinion on appeal, nor in the putative appellate framing in the 9th.

      • tomtallis says:

        I’m not an attorney and I hope that you’re correct. My experience in years of following, as a layperson, the SCOTUS is that they virtually never rule broadly when they can find a way to rule narrowly. If they can find a way to rule narrowly in Perry, I think that they will.

        • bmaz says:

          Heh, well I hope so too. I am probably being too optimistic, but the path is there. Let’s hope the momentum keeps rolling and they take it.

  13. Tortoise says:

    (Should have said first…) Agree with all you said. It’s f*cking remarkable how fast it’s changing, and I really hope your predictions are right.

  14. bmaz says:

    Hmmm, I think you may be right there. Do not think I have seen you around before; welcome to Emptywheel, please stick around and join the conversation.

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