One of the relentless memes that keeps cropping up in the marriage equality battle is that, were the Supreme Court to grant full broad based and constitutionally protected marriage equality in the Hollingsworth v. Perry Prop 8 case, there would be a destructive backlash consuming the country on the issue.

A good example of the argument was propounded by Professor Eric Segall at the ACSBlog in a piece entitled “Same-Sex Marriage, Political Backlash and the Case for Going Slow”:

There may be a better way. The Court could strike down DOMA under heightened scrutiny making it clear that government classifications based on sexual orientation receive heightened scrutiny. The Court could dismiss the Proposition 8 case on standing grounds (there are substantial standing arguments which the Court asked the parties to brief). This combination would leave all state laws (except perhaps California’s) intact but subject to likely successful challenges. Obviously, this would be a slower and more expensive route to marriage equality, but it might make the right more secure over time while decreasing the chances of serious backlash.

I know that it is easy for a straight male like me to suggest that the Court should refrain from quickly and forcefully resolving the same sex marriage issue on a national basis. But issues that some gays care deeply about are not limited to marriage equality, just like feminists face many challenges other than abortion such as equal pay, equality in the military, and glass ceiling barriers. Where gender equality would be without Roe is unknowable but even Justice Ruth Bader Ginsburg has observed that the right to choose today might be more secure if the Court hadn’t decided it “in one fell swoop.” I don’t know what will happen if the Court announces a national rule on same-sex marriage but history strongly suggests that a more incremental approach might better serve the long term interests of people who identify themselves as liberals and progressives, including gays and lesbians.

I like and respect Eric quite a lot, but I cannot agree with him, nor other advocates of this position (for further discussion of the “Roe backlash” theory, see Adam Liptak in the New York Times). I have long strongly advocated for a full, broad based, ruling for equality for all, in all states, most recently here. But the issue of “backlash” has not previously been specifically addressed in said discussions that I recall.

Fortunately, there are already superb voices who have addressed this issue. The first is from Harvard Law Professor Michael Klarman in the LA Times:

What sort of political backlash might such a decision ignite?
…
Constitutionalizing gay marriage would have no analogous impact on the lives of opponents. Expanding marriage to include same-sex couples may alter the institution’s meaning for religious conservatives who believe that God created marriage to propagate the species. But that effect is abstract and
long-term. The immediate effect of a marriage equality ruling would be that the gay couple already living down the street would become eligible for a marriage license — and nothing would change in the daily lives of gay-marriage opponents. That is why strong initial support for a state constitutional amendment to overturn the Massachusetts court ruling rapidly dissipated once same-sex couples began to marry.
…
Thus, while a broad marriage equality ruling would undoubtedly generate some backlash, its scope would be far less than that ignited by Brown or Roe. A majority of Americans would immediately endorse such a decision, and support would increase every year. Opposition would be far less intense than it was to school desegregation or abortion because the effect of same-sex marriage on others’ lives is so indirect. Some politicians would roundly condemn the ruling, though many Republicans and most Democrats would not. State officials would have no way to circumvent such a decision, nor would many same-sex couples be intimidated out of asserting their right to marry. Outright defiance is conceivable, though it seems unlikely that any state governor would be willing to go to jail for contempt of court.

The likeliest scenario, in the event of a pro-equality ruling, is immediate, strident criticism from some quarters, followed by same-sex couples marrying in states where they previously could not. Very little will change in the day-to-day lives of opponents, and the issue will quickly fade in significance.

Klarman’s article goes through pretty much every facet of the “backlash” theory, and knocks them all down in order. It is an excellent read, and I suggest you do so as there is much more there.

And Professor Scott Lemieux writing at his blog Lawyers, Guns & Money, opines:

The specific, oft-cited argument made by Ginsburg is, I think, wrong in two crucial respects. First of all, Ginsburg’s argument that the decision would have been more broadly accepted had it rested on equal protection grounds is almost certainly wrong. The public evaluates decisions based on results, not reasoning, and essentially nobody without a professional obligation to do so reads Supreme Court opinions. Second, I don’t understand the argument that a “minimalist” opinion just striking down the Texas law wouldn’t have generated a backlash. The Texas law, while extreme in terms of its language and implications, wasn’t “extreme” in the sense of being an outlier; more than 30 states substantively identical abortion statutes that also would have been struck down. And following that, of course, would have been additional rounds of litigation to determine whether arbitrary panels of doctors and other “reform” laws were constitutional. That’s not a formula for lesser conflict.

In terms of application to the same-sex marriage cases, then, liberals shouldn’t be hoping to win by losing or whatever. There’s no reason to believe that a broad opinion invalidating same-sex marriage would produce any more backlash than legislative repeals would. There would be more “backlash” only if you (plausibly) assume that absent Supreme Court decisions many states would maintain their bans on same-sex marriage for a long time. In other words, you can avoid backlash by just not winning, an argument I consider self-refuting.

For a much longer explication on the false premise of the “Roe backlash” phenomenon, see Lemieux’s law review length article “Roe and the Politics of Backlash: Countermobilization Against the Courts and Abortion Rights Claiming” which opens up with a discussion of the backlash created by a case directly analogous to the Prop 8 situation, Lawrence v. Texas. Suffice it to say that, as Scott notes, there was some early collateral backlash, but there was not anything like predicted and, almost exactly a decade later, it seems like a distant memory that hardly happened.

This is important, because Lawrence v. Texas was a broad sweeping decision invalidating a single state’s (Texas) anti-sodomy law, but giving a full mandate that settled the issue once and for all, for all citizens nationwide. Despite many commenters having opined before the decision that the Lawrence court must rule narrowly and “go slow”. Sound familiar? It should. Same goes mostly for the Loving decision on interracial marriage. There was some grousing, but then people moved on.

Marriage equality is more popular, and trending ever more so at nearly light speed, than interracial marriage and invalidation of anti-sodomy laws were at the time of Loving and Lawrence respectively. Even the conservatives are figuring out that many of their sons, daughters, sisters, brothers and friends are gay. Not all may personally accept gay marriage, but the air is out of the hate against it. Even Chief Justice John Roberts’ niece is out and gay. And she will be sitting in the Roberts family section today at the oral argument on Hollingsworth v. Perry/Prop 8.

As one of Scott Lemieux’s commenters, “Just Dropping By” succinctly, and quite correctly, noted:

To put it another way, opposing same-sex marriage once such marriages start happening makes you look like a monster who wants to break up other people’s marriages. Opposing abortion makes you look like someone who wants to save cute babies from being killed. People don’t like imagining themselves as monsters; they do like imagining themselves as heroes. This is why millions of hours, and billions of dollars, have been spent fighting Roe v. Wade, while there’s no major national group devoted to overturning Loving v. Virginia.

Exactly right. That is the case against the “backlash”. The fear is overstated, and the time is now for equality for all, in all the states. For the Supreme Court to do less would be nothing less than a direct sanction for continued regional and state based bigotry and discrimination. That is not American, it is not constitutional, and it is no longer tolerable.

Just about a month ago, in urging the Obama Administration to file a brief in favor of marriage equality in the Hollingsworth v. Perry Prop 8 case before the Supreme Court, I described the stakes:

And here we are on the cusp on the next defining moment in the quest for equality for all in the US. It is not for origin, not for skin color, not for gender, but for something every bit as root fundamental, sexual identity and preference. Marriage equality, yes, but more than that, equality for all as human beings before the law and governmental function.

For all the talk of the DOMA cases, the real linchpin for the last measure of equality remains the broad mandate achievable only through Hollingsworth v. Perry, the Proposition 8 case.

It was true then, it is true now. To the everlasting credit of of President Obama, Solicitor General Verrilli and the Administration, they did indeed file a brief in support. It was a surprisingly strong brief with a clarion call for full equality based upon heightened scrutiny; yet is was conflicted with a final ask only for a restricted ruling limited in application to either just California or, at most, a handful of somewhat similarly situated states. In short, the ask in the Administration’s brief was not for equality for all, in all the states; just in some.

On the eve of one one of the seminal moments of Supreme Court history – it is easily arguable this is far more of a defining moment than the ACA Healthcare scuffle was – it is again incumbent on the Administration to give the justices the headroom to make a broad decision granting equality for all.

Even in the short time since the Obama Administration filed their brief, between February 28 and now, the mounting tide of public opinion and desire for full equality has grown substantially in multiple ways. Colorado, a state where the thought was once beyond contentious, passed full civil union equality and Governor Hickenlooper signed it into law. And a new comprehensive Washington Post/ABC News public poll has found that a full 58% of Americans now support the legality of gay nuptials, and a whopping 81% of adults between the ages of 18 and 29 so support.

The writing is on the wall, and the trend overwhelming. And it simply does not make sense for the Obama Administration to buck this tidal wave and argue only for equality in a handful of states, with equality for some, but far from for all. Barack Obama and Donald Verrilli laid every bit the foundation needed to argue for broad based full equality – in all states – in their brief.

It is time for Mr. Obama and Mr. Verrilli to step up and forcefully tell the Supreme Court that full equality is the right way to rule. The Court granted Solicitor General Verrilli time to express the Administration’s position in the oral argument Tuesday; he should use it in the name and cause of full broad based equality. It is a time for leadership; this is a moment for Mr. Obama and his attorney to display it.

By the same token, it is also time for the Supreme Court to do the same. So often it has been argued the “Court should not get out in front of popular opinion”. Bollocks, the Court should refuse to put themselves behind public opinion, and an ever strengthening one at that, by shamefully ducking the perfect opportunity to stand for that which the Constitution purports to stand, equal protection for all.

There are a myriad of legal arguments and discussions, and just about every commenter and expert in the field has been offering them up over the last week. I will leave that to another day, after the court has heard the oral arguments, we have our first inclination of what the justices are focused on, and the case is under advisement for decision.

For now, here are a couple of warms ups for Tuesday’s oral argument in Hollingsworth v. Perry/Prop 8 and Wednesday’s oral argument in United States v. Windsor/DOMA. First a nice little video “Viewer’s Guide to Gay Marriage Oral Arguments” with Supreme Court barrister extraordinaire, and SCOTUSBlog founder, Tom Goldstein. Here is a handy flow chart of all the different possibilities, and the why for each, of how the court may rule on both cases. It is really pretty neat and useful tool.

The briefing is long done now and the Justices understand the issues. But if the ACA/Healthcare cases taught us anything, it is that Justice Roberts is concerned about the legacy and esteem of the court. And Justice Kennedy has already shown how committed he is to fairness in social justice issues and willing to even go out on limbs ahead of controversial public opinion with his written opinions.

At this point, the most effective leverage is not repeated discussion of the minutiae of law, but rather the demonstration of the righteousness of full equality. History will prove fools of those who sanction continued bigotry against marital equality, and anything less than a broad based heightened scrutiny finding, for equality for all people, in all states, is a continuation of such unacceptable bigotry.

UPDATE: Professor Adam Winkler of UCLA has a piece out today that embodies my point in the post perfectly. Discussing the disastrous and ugly 1986 decision of the Supreme Court in Bowers v. Hardwick to uphold sodomy laws when times and opinion had already changed, and the profound regret felt by Anthony Kennedy’s predecessor, Lewis Powell, Professor Winkler writes:

Kennedy is clearly a justice who considers how his legacy will be shaped by his votes. In 1992, when the Supreme Court was asked to overturn Roe in a case called Planned Parenthood v. Casey, Justice Kennedy originally sided with the conservatives to reverse the controversial privacy decision. Like Justice Powell in Bowers, Justice Kennedy then changed his vote. He went to see Justice Harry Blackmun, the author of Roe, and explained that he was concerned about how history would judge Kennedy’s decision to end constitutional protections for women’s right to choose.

Like many people, Justice Kennedy may believe that the public tide against marriage discrimination is growing and that gay marriage is inevitable. History is not likely to be kind to those justices who vote to continue relegating LGBT people to second-class citizenship. As the swing justice ponders how to rule in the gay-marriage cases, Justice Powell’s well-known regret over Bowers, and the widespread recognition that Bowers was wrongly decided, will almost certainly weigh on his mind.

Adam’s article is worth a full read. And I agree with it completely.

This is an op-ed; opinion herein is mine. ~Rayne

A tweet yesterday by technology-futurism pundit and sci-fi writer Bruce Sterling hinted at the problem of technology industry and journalism, with regard to politics:

The tweet was spawned by a profile in The New York Times of Newark NJ’s mayor, Cory Booker, who has used social media regularly as a community outreach tool. In addition to bestowing the inapt label “A Politician From the Future,” a critical problem in this article is the labeling of Cory Booker as appealing to “the Googly-Facebookish wing of the [Democratic] party.”

Except that Cory Booker is extremely proficient at using microblog platform Twitter, and Twitter has a significantly different demographic profile with regard to race and age. Further, Twitter’s 140-character post limitation has been much easier to use on mobile devices, fitting a mobile business model long before either Google or Facebook.

It’s not clear what Sterling thought about the NYT’s article, though in a reply he expanded and lumped together the “Twittery-Googly-Facebook” crowd, suggesting he’s missed both NYT’s error while not understanding the demographics and politics at play.

Both Sterling and NYT fail to take seriously Booker’s actions themselves; they look at the medium, not the message, which is that Booker’s deeds are like that of an old-school Democrat, the kind we used to have before the corporatist Democratic Leadership Committee co-opted the Democratic Party to serve somewhat more liberal overlords.

Booker’s use of Twitter was carefully noted by TIME back in 2010, after Booker had taken personal, hands-on action to help constituents during a snowstorm. It wasn’t a collection of photo ops for a campaign (as another mayor-candidate demonstrated in another city), but actual response to situations where elbow grease and a shovel were required.

What both NYT missed, besides categorizing Booker as belonging to the “Googly-Facebook” portion of the Democratic Party:

— Booker’s efforts with regard to his one-on-one interactions with constituents do not compare with a considerable portion of the party to which he belongs;

— His actions are highly transparent, his words sync with his deeds right there in the public forum of Twitter;

— The tool he uses for outreach more closely matches his constituents’ demographics, not that of the “Googly-Facebook” crowd.

— Booker uses “big data” to make and justify decisions; “big data” is merely a contemporary expression of polling data used in the near-term past and present.

It’s not clear that Sterling notes these key points, as focused as he was on the social media component and NYT’s representation of Booker as a politician from the future.

~ ~ ~

Now let’s look at what computer scientist and tech pundit Jaron Lanier said about social media and “big data” in a recent interview:

“…The only one left standing at some future date is the owner of the largest computer on the network. Whoever has the biggest computer wins in our current system.

Is this true for politics as well?

Yes. If you have the biggest computer and the biggest data, you can calculate how to target people with a political message, and have almost a guaranteed deterministic level of success. Politics then becomes about who has the biggest computer instead of what the agenda is. The way Obama won the last US election was by having the best computer strategy. That method of winning an election works, but if that is to be the future of politics, it will no longer have meaning. The path we are on is not compatible with democracy. …”

Pay attention to this argument very carefully, because this is what the major parties’ consultants are trying to sell: the more data, the better the results, the biggest computer wins.

It’s utterly wrong.

Ask yourself if any campaign generated message convinced you to vote one way or another in 2012. Or was it the candidates themselves, their history, their ideology, their comparative goodness/badness/rightness/wrongness on grey scale that swayed you?

I personally cannot think of anything that would have persuaded me to vote for Mitt Romney, and I suspect that was the case for much of the 47% he believed did not matter. His personal beliefs about the 47% and his previous track record could be readily seen by voters without a lick of “big data” messaging.

Let’s look at Cory Booker through the same lens. His popularity as mayor has less to do with big data than simply being an old-school, hands-on Democrat. If it ever comes out he’s done any of his works because “big data” told him to, he’d be dropped hard.

It’s inauthentic, inhuman, to do good deeds because “big data” told you to do so.

As long as he genuinely cares about his constituents, makes himself available, is real, his popularity will continue.

The problem Booker must confront is the sublimation of his moral conscience to decision by data. From the NYT article one might infer Booker avoids unpopular actions because data tells him it’s not popular.

But should any elected official ever confuse popular with moral and ethical?

Polling data — the older, slower, less granular version of “big data” — informed elected officials that impeaching President George W. Bush was unpopular.

That’s why it never took off in Congress. Not because Bush didn’t merit impeachment, that his actions may have been illegal, but that going after him for impeachable offenses wasn’t popular.

Members of Congress didn’t interpret this data to mean they needed to make a better case to the American public as they sought impeachment.

The moral and ethical acts of governance were set aside because of data.

Jaron Lanier also said in the course of his interview,

“…There are a lot of very positive things about the tech world. It’s remarkably unprejudiced and I’ve never encountered racism in it. There are a lot of good qualities, so I don’t want to criticize it too much. I remain in it, and I enjoy it. However, there is a smugness, or a kind of religious aspect to it. There is a sensibility that says: we have skills that other people don’t, therefore we are supermen and we deserve more. You run into this attitude, that if ordinary people cannot set their Facebook privacy settings, then they deserve what is coming to them. There is a hacker superiority complex to this. …”

The people who will sell the use of “big data” to politicians who’ve already proven popularity is more critical to them than morality are going to be smug about any outcome. They have absolute faith in their products.

Unfortunately, their products are pitched to a black-and-white, yes-and-no, binary — no matter how much geek-speak they use to tell you the algorithms they use are non-linear, complex tools for decision making.

They sell to a binary they don’t even recognize as wrong. They’re pushing the granularity of data to people who only want to know if they can successfully run for office next term, the yes-or-no, not the gradients along a grey scale that come from making a tough moral decision.

Journalism looks on, marveling at the new tools, unable to invest the effort to research the whiz-bang technology, nor willing to take a position on whether use of a tool is good or bad (“the view from nowhere,” as NYU’s Jay Rosen has called it).

Technology is concerned with altogether different issues — the kinds of  tools used, whether the progenitors of the tools are honest brokers, and if there’s any transparency or oversight.

Except that technology has missed that the decisions being made about these tools are based on popularity — or on popularity measured by campaign contributions received by donors — rather than what is the moral or ethical choice.

~ ~ ~

At this point I should insert a map with a sign that reads, You Are Here.

We are told what to believe by journalists who are blind in a number of ways, about technological tools used upon us by those whose understanding is narrow. Both journalism and the technology industry have exposed their shortcomings with regard to ethics and morals in terms of governance.

And as noted yesterday in my previous post, a substantive number of professionals in both journalism and the technology industry have forgotten or have never known a time when we were more concerned with doing the right thing for our fellow man than simply aiming for the most popular, most read, most used, most sold content/application/candidate.

Cory Booker has all the hallmarks of being a fine Democratic elected official at a level higher than that of Newark’s mayor, based on his deeds; he’s the kind of candidate that should have emerged after 2006, the kind that I had personally hoped for as an activist.

But Booker also shows a reliance on “big data” for decision making abetted by both journalists and technology alike.

Who will tell Booker the truth? Big data’s messing with him, while media’s blowing smoke up his ass with beat sweetener profiles. At the same time, Twitter is working for him as a simple outreach tool, a low cost one-to-one connection with each cellphone user  who can tweet him in his highly diverse city.

Who will explain all this to the Democratic Party’s rank and file? Technology’s hacker ethos thinks they have it coming to them if they’re too stupid to grok what’s going on, and journalism isn’t doing them any favors with shallow puff pieces. Yet a substantive number of them get “the Facebook” while failing to to understand or use Twitter.

Where does the delaminated left fit into this mess? They’re among those whose data will contribute to decision making by politicians, but whose morals and ethics will be ignored in the process.

And who will spell out all of this to the public? See above, rinse and repeat — especially since dirty bloggers who use words like “blowjob” aren’t allowed on broadcast and cable communications.

This is the politics of now, if not the politics and politician of the future in question.

Perhaps that sign should read, You Are [Expletive] Here.

This is an op-ed; opinion herein is mine. ~Rayne

Once upon a time, before the rise of machines — um, before corporations took over and subsumed the Democratic Party, there were people who espoused an ideology of caring for their fellow man. Granted, some of the richest among them ended up elected to office, but they moved Americans to do the right things.

“And so, my fellow Americans: ask not what your country can do for you — ask what you can do for your country. My fellow citizens of the world: ask not what America will do for you, but what together we can do for the freedom of man. …”

[source]

This was a rising-tide-lifting-all-boats kind of Democratic Party, increasingly pro-civil rights and antiwar through the 1960s. The ideology was shaped in no small part by a stronger, more organized political left, manifest in student activism of the period a la Students for a Democratic Society (SDS). SDS in particular espoused direct action and participatory democracy, a hands-on approach to society.

Now entire generations — perhaps as much as three generations — no longer connect the liberal activism of the 1960s with the Democratic Party. Too much time has passed along with negative memes and actions actively impelled by the right linking the Vietnam War to Democratic figureheads like presidents John F. Kennedy and Lyndon Johnson, while undermining the work of other Democratic liberal champions like senators Ted Kennedy and Barbara Jordan. Ask any 20-something if they know who either Ted or Barbara were; you’ll get a blank stare most of the time.

They will, however, remember the Big Dog, Bill Clinton, who was truly Republican-Lite. He catered to business while talking a great game, ultimately undermining American democracy. As an example, his efforts to deregulate media eventually lead to a corporatist mono-culture in broadcast media. He also failed to take any real action to support unions and build the Democratic Party grassroots. He’s thought of kindly because his approach to the deficit, a more restrained approach to militarism, in tandem with the rise of the internet, led to a golden dot-com age pre-dot-com bomb when the standard of living for most Americans was still rising. He and his heir-apparent, current President Barack Obama, are now the face of the Democratic Party for a majority of Americans.

Though its original standard bearers have aged and the world has changed, the fundamental liberal ideology that coalesced in the 1960s still exists; it was a key driver behind the rise of presidential candidate Howard Dean in the 2004 election season. The left wanted direct action and participatory democracy combined with pragmatic achievement of results; barriers to their efforts had decreased because the internet was a cheap and fast facilitator. Obama’s 2008 win is owed in no small part to the dispersion of strategy and tactics embracing direct action and participatory democracy.

Since that win, however, the Obama campaign has done little for either direct action or participatory democracy. After the 2008 win, the OFA folks as well as the Obama White House completely ignored the internet-mediated grassroots it had used for more than a year. They missed an enormous opportunity to reduce the friction generated during the healthcare debate. In the big picture, this may not be a bad thing since Obamacare is simply Romneycare at scale. But in terms of the Democratic Party and the American left, this was a horror — there was no countervailing, unified message pushing back at the rising Tea Party’s toxins.

The Tea Party’s rise is the very antithesis of the 1960s leftist ideology — it was a corporate-funded, corporate-facilitated co-option of direct action and participatory democracy, harnessing ignorance as well as conservative themes in order to realize a corporatist agenda, initially focusing on the 2009 healthcare debate. The internet sped the effort along, while ensuring consistency of its anti-left, anti-Obama, anti-tax, anti-healthcare reform messaging.

Which brings us to the present: the left’s ideology has delaminated from the corporate co-opted Democratic Party to manifest itself in a loosely-organized Occupy movement. Again we see evidence of direct action and participatory democracy in Occupy’s principles and efforts. Occupy has not gained critical mass, though, because it has not organized effectively (in part out of fear of the same kinds of COINTEL that undermined its 1960s predecessors), nor has it a figurehead to act as a lightning rod to encourage identification with the movement. Until organization improves and recognized spokespersons/figureheads emerge, their works will be more nebulous in their impact and not receive the credit due from a plurality of the American public, nor will it have the long-lasting effect on the citizenry’s consciousness.

The youngest of multiple generations do not remember a strong political left, only what passes for left in a corporatist culture. Nor do the overwhelming majority of Americans really understand how their democracy works, often mistaking consumerism for democratic process. These same people now comprise the ranks of journalists and the technology industry, their current industries shaped by decades of rampant corporatism and the paradigmatic cultural shift of analog-to-digital.

They are have been herded into knowledge silos by these forces. Most are clueless about the intersection of political ideology and technology. Their lack of deep political awareness, including their own role in the shaping of politics, contributes substantially to the foundering of the American left and its missing identity.

Next: NYT’s Googly-Facebook problem, tech industry’s political ignorance, and Cory Booker.

The Steubenville rape case is so offensive in so many ways I can’t even begin to tackle them all.

•  CNN and a number of other news outlets cast the rapists as victims;

•  Idiots who “don’t believe in rape” come out of the woodwork and spew their insanity;

•  Society follows the spectacle of the case for entertainment, but fails to take action about the culture of rape perpetuated by their demand for this amusement.

Yet there’s a missing component in this mess, just as there was in Columbine, Colorado years ago, just as there was in Central Falls, Rhode Island.

Where are the parents and what the hell was going on BEFORE the rape?

I ask this knowing how very culpable the parents are. I’m guilty of failing my kids, and I learned it the hard way this past year.

How did this happen? I’m the mom who gave her kids books like Our Bodies, Ourselves and Changing Bodies, Changing Lives in middle school, gave demonstrations of condom use (with fruits and vegetables and condoms, get your mind out of the gutter). I’ve had numerous, lengthy conversations with my kids about sexuality, from first sex to masturbation, to contraception and STDs. We’ve talked openly about bisexuality, transgender, and homosexuality; they’ve told their friends my door is open to any kid who has a problem about their sexual identity.

Some of these conversations also included discussions about other kids and their parents’ failures. At least one of my kids’ closest friends was sexually active as a junior in high school and her parents had NEVER had any discussion about sex with her, before she became active, and not for the rest of her high school tenure.

What? Are you fucking kidding me? was my initial reaction. How can parents these days trust public OR private schools to do an adequate job teaching their kids about sexuality, let alone contraception? How can parents stick their heads in the sand when there are so many misleading messages offered to kids over the internet as well as traditional media?

Take that “Don’t believe in rape” asshole linked above; how can parents not offer their own messages about rape and the nature of consent when that kind of toxic idiocy is being spewed? (And where in the hell did that idiot acquire his ignorant, poisonous attitude about rape? His parents?)

No fucking way should any parent assume that no news is good news, that what they have to say as parents will be ignored or discounted. In the absence of parental messaging on both values and laws, the morons will win.

As I said, I’m guilty of failing my kids. I know EXACTLY how big the hole is that parents should fill, even after very concerted, conscious efforts to fill that gap.

Last year during her first term at college, my daughter came home and dumped, frustrated and scared about events of the previous weekend at a fraternity party. She’d followed all the rules we’d discussed before: don’t accept open drinks, bring your own sealed beverages, have a buddy to get your back, don’t drive drunk, so on.

The gap, though, was education about dealing with the aftermath of nonconsensual sex. One of their female classmates got shitfaced (read: drank too much alcohol, drugging not ruled out) and was taken advantage of by a male classmate.

The immediate collective concern of a handful of female classmates was finding Plan B — trying to find it locally on a weekend at a nearby drugstore or major chain store was all they thought about.

I listened, sick to my stomach, disgusted with the perpetrator, with the girls, the fraternity, the school — but mostly with myself.

•  Not one of these girls thought about insisting their friend go to the emergency room.

•  Not one of these girls thought the victim should get tested for rohypnol or other drugs.

•  Not one of these girls thought about testing for STDs.

•  Not one of these girls thought this was a crime that should be reported.

I failed my daughter, I failed her classmates, I failed the victim; my daughter should have thought of these things when the crisis presented itself, and she didn’t because I had not coached her adequately on these subjects until it was too late.

Believe me, we’ve had many, MANY conversations here about the incident since then. My son is sick of this subject, but he now understands clearly that no means no, and no response means take the girl home. He won’t believe the crap Mr. “Don’t believe in rape” spews.

Some parents reading this may think to themselves that their religious beliefs preclude such discussions. Ri-ight. Well, I’m glad that poor drunken Christian girl at her first frat party had her faith to fall back on when her male classmate raped her. Check into reality: your daughter OR your son could be drugged and abused without their consent. How will your religious values help you respond to the possibility of physical or mental injury, STD exposure, reputation assassination via social media, let alone pregnancy?

And — God forbid — the worst case happens, how will you deal with the bullshit from people like Mr. “Don’t believe in rape” who believe your kid had it coming to them?

Does the pressure feel uncomfortable? Let’s face it, it’s overdue. Parents are too often left off the hook during horrors like Steubenville. Let me point to the Columbine High School Massacre and Crystal Falls’ failed high school as examples.

How did the parents of Columbine students Eric Harris and Dylan Klebold not know their sons were stockpiling weapons in their homes, or were troubled?

In the case of Crystal Falls, how did the parents not realize that their kids were having problems en masse before they finished a single year of high school?

Why did the media fail to ask about the parents in either case? Note carefully this WaPo piece on Crystal Falls as it was typical of media coverage: the parents are not mentioned at all.

And now Steubenville.

Didn’t the convicted rapists ever learn from their parents that lack of consent means no consent? Or did they come to believe in the absence of adequate guidance that Mr. “Don’t believe in rape” is right? Weren’t these young men ever taught that taking advantage of someone who cannot speak for themselves is the farthest thing from being a man, is utterly reprehensible, and is criminal in the case of nonconsensual sex?

As for Mr. “Don’t believe in rape”: Blaming a victim — A CHILD who might have been doped — makes you among the lowest of low. Do you not understand that taking something personal without explicit permission is criminal and the victim shouldn’t be shamed? I’m pissed off enough about your malignant stupidity to hope someone tests your disgusting premise on you after doping your beverage at a party. You’ll have been asking for it, by your own definition.

Some people only learn the truth the hard way, when it becomes personal.

Don’t I know it.

UPDATE — 11:05 pm EDT — 

I’ve been told the website of Mr. “Don’t believe in rape” is now down or blank. Huh. Isn’t that interesting? I should have trusted my instincts and taken a snapshot of the site because it’s not archived, either. If you have a snapshot you can share, please drop a note in comments, thanks!

Hi there Wheel, Empty, and and otherwise gear heads, it is time for Spring Trash Talk. There is a lot under foot, Spring Training in Major League Baseball, free agency season and pending entry draft in the NFL, the somewhat diminished fortunes of the NBA and, most of all, FORMULA ONE! The Circus season is upon us, and it is starting down under in the Land of Oz.

Appears we are starting off where we left off: there is yet no reason to believe the Red Bulls of Sebastian Vettel and Mark Webber are anything less than the cars to beat. But, that being said, there is also no reason to think that the Ferrari and McLarens are anything less than the threat that they were at the end of last season. Drivers make a difference in F1, and Fernando Alonso and Jenson Button are very, very good drivers. And their cars are not chopped liver either. For the clear superiority of the Red Bulls, and even the McLarens for that matter, Fernando Alonso pulled off one of the greatest performances in the history of F1 with inferior equipment last year. Alonso was only 3 measly points behind Vettel in the final Driver’s standings. Simply astonishing.

The opening two practice sessions for the Australian GP were late last night my time; i.e. between 9 pm and 12 am whatever the heck time AZ is. (Daylight savings time really screws with our heads here, cause we don’t do that). Bottom line…..not much has changed.

Okay, if I were pleading guilty (I would never!) to a heinous offense under truth serum to make sure I was cray cray (yeah, okay, this is some stupid shit too) I MIGHT admit that a lot of this post was written from a series of taco joints in Old Town Scottsdale. It is nowhere near as opulent as it sounds; hell even the mariachi music is piped in like Muzak. And the 60 something threesome at the table next to me looks like their Winnebago may be illegally parked out on Camelback Road.

Where were we? Okay, back to the Australian GP. Here is what Brad Spurgeon thought:

Red Bull and Sebastian Vettel have won all the titles for the last three seasons. Vettel became only the third driver in Formula One history to win three drivers’ titles in a row, after Juan Manuel Fangio in the 1950s and Michael Schumacher last decade. Only Schumacher, Fangio and Alain Prost have won more than three titles, with seven, five and four, respectively. So both Vettel and the team have more pressure on them than ever. Still, Red Bull has the advantage of the consistency of keeping the same two drivers and technical team, and Mark Webber is still pushing for his own final career chances to capture the drivers’ title. With the great designer Adrian Newey leading the way, Red Bull should remain among the strongest.

As a lifelong aficionado of Scuderia Ferrari, I would kill to demur. But, I cannot; I think that is right. Still. As to the beloved Prancing Horse, well, from the lens of the season start, it will take another superhuman drive for the ages by Fernando Alonso to keep Ferrari in the chips.

That leaves McLaren and Mercedes fighting for sloppy thirds. Maybe it will come to be that one will blast out of nowhere to be a contender for King Vettel’s Crown, but it is really hard to see. Lewis Hamilton proved himself to be a self absorbed punk at the more superior team, McLaren; now he will try to do what Michael Schumacher could not at fast, but unreliable, Mercedes. Please. Juan Pablo Montoya performed better and was sent packing to NASCAR.

For all the sturm and drang, for all the off season shuffle, the Championship will still be fought for between Red Bull and Ferrari, with a decided advantage to the former.

Let the Circus games begin!

And, then, there is the NFL free agency merrygoround. Heck, I do not know who are the winners and losers at this point. But, a quick take says the Steelers and Cardinals, the teams of local pricks bmaz and Scribe, did not do well.To be kind. Probably nobody did worse than the Cardinals, who signed an aging punt return specialist that even the Cleveland Browns did not care about anymore, and let go Kevin Kolb, the only even practice squad level NFL quarterback they had. Seriously, what kind of addled mentally challenged assholes are running the Cardinals? Oh, wait, it is still the fucking Bidwell family. Who could have guessed from this level of rank pathetic incompetence??

The Deetroit Kittehs seem to have done very well. If they can keep their peeps healthy and out of the klink, they may have the greatest show on fake turf. The Pats lost Welker’s whining wife (and shitloads of clutch catches in the slot and over the middle) BUT gained a sometimes fragile Danny Amendola. Amendola was the successor in kind at the Pirate attack fun/gun at Texas Tech. Amendola is actually every bit the route runner, and even faster, than Welker. But he ain’t as predictable, nor as reliable, as Welker. This could be a wash, or it could be a loss. Time will tell. The Pat’s defense and, especially, secondary looks to be much improved.

Other than the above, the Squawks got Percy Harvin and some other studs, and the Niners got some too. Whoo weee baybee, the gold rush is on on the left coast.

MLB is in Spring Training; let me tell ya something brother, it is fucking hot here. The NBA is in the stretch run, but the only question of interest I see is what lower seed will the Lakers fill? 8? 7? 6 looks bleak, but not impossible; though I would be shocked. We will return to that in a roundball post later. As we will with the student athletes for March Madness, and very soon.

Rock it, Talk it, Jayhawkit. Get yer sweve on Wheelies. Light it up.

Music by BB King, Bono and the band.

Last week, Rick Snyder announced he’d disenfranchise the 700,000 mostly African American residents of Detroit in a bid to solve the city’s seemingly intractable financial problems.

The Emergency Manager he’ll appoint is expected to come in and cut the wages of the city’s middle class workers and sell off Detroit’s assets like Belle Isle. Along with Belle Isle, observers expect Detroit’s excellent art museum, Detroit Institute of the Arts, home of some of the best Diego Rivera murals in the world, his tribute to Industry, to be sold.

Oddly, it’s the museum that offers a better solution for Detroit’s problems, and not just because the mural depicts people of all skin colors working side-by-side.

Last fall, the counties surrounding Detroit decided that the museum — one of the few shining glories in Detroit — served to the entire Southeast MI region, and voted to pass a millage to fund it. The vote was significant because the museum (heck, the communist murals themselves) has suffered from the same fate as the city itself: glory days when the city was booming, hard times when white flight began the process that has brought us where we are today, and then abandonment by the state.

Though the DIA began as an independent nonprofit in 1885, it quickly turned to the City of Detroit for financial help, and in 1919, it became a city department. The pattern was set: In good economic times, things were swell, but downturns were devastating. When the city nearly went belly-up in the 1970s, the state took over funding the museum — but only after it closed doors for three weeks in 1975.

The status quo held until John Engler swept into the governor’s office. Philosophically opposed to arts funding, he cut state arts spending by 46% in 1991.

The millage campaign to support museum elicited some of the same emotions that Detroit’s failure now has — though in much more muted form. DIA was managed by corrupt people; why should anyone get a bailout. But ultimately, just enough voters recognized that DIA is part of SE MI’s community, that voters came up with the money.

Opponents also cite a range of other concerns, from a reluctance among some suburbanites to subsidize a museum in Detroit and consider the tax “a bailout,” to the feeling that those who use the museum should be the ones who pay for it.

Those who favor the millage counter that the museum has already been raising an average of $16 million per year. As metro Detroit’s greatest cultural treasure with a regional audience, the responsibility to fund it should cut across county lines, advocates say.

“There’s no major city in the world without a major museum,” said Oakland County Executive L. Brooks Patterson, a prominent Republican who supports the millage.

“Taxes go to projects that are worthy, whether we use them or not,” Patterson said, noting that when he travels around the world to recruit business, he is always asked about schools, neighborhoods and cultural amenities. “The DIA is a huge opportunity for me to answer that question in a positive way. It’s an economic development tool for me.”

Last fall, the voters of SE MI chose to regionalize one of the cultural jewels of Detroit.Note, to some degree the state has stepped in to support the Red Wings and the Convention Center, Cobo Hall. Michigan has actually been in the process of picking and choosing which parts of Detroit it deems worth saving, all without acknowledging that’s what it is doing. It has not, in that process, ever picked Detroit’s residents.

With that in mind, consider how Scott Martelle, author of Detroit: A Biography, describes Detroit’s problems.

The problem in Detroit is not the people in charge (though some Detroit leaders have certainly failed the city). The real problem is the broader structure of government in the region. And therein lies a lesson for other urban areas and, perhaps, a template for avoiding what befell the Motor City.

Detroit, once the nation’s fourth largest city, has been crumbling since the 1950s, when its population peaked at a little over 1.84 million people. Estimates put the current population at under 700,000, and Detroit leads the nation’s large cities in the percentage of people living below the federal poverty line. More than a quarter of Detroit’s 140-square-mile city is now empty space. A Detroit house is cheaper to buy than a new car, and a high-paying job within the city limits is a rare thing to find, even with a recent influx of downtown-focused developments.

The emptying of Detroit stems from a complex mix of intractable racism, corporate and governmental decisions, failed institutions and crime levels that have driven most of the middle class to the suburbs. Local governments have regularly undercut each other with tax deals to lure jobs (much as Texas Gov. Rick Perry tried to do on his recent visit to California). These deals have helped corporations at the expense of communities like Detroit, causing the city’s tax base to shrink faster than the city government could adapt and leaving it with massive debt, annual operating deficits, a demoralized workforce, an impoverished population base — and no plan for how to fix things.

This all happened in a state that relies more on local property taxes for services than many other states, meaning that affluent (usually white) municipalities can enjoy the benefits of their wealth, while nearby poorer cities suck ever more out of the residents that remain. This left Detroit, in 2011, as number 1 among top 50 cities in terms of tax rates, and dead last among those top 50 cities in terms of property values.

Martelle argues that the best solution for Detroit is to adopt regional solutions to the problem.

To come back, Detroit needs to start finding ways to change those factors. A racial divide, which pits white-majority suburbs against a black-majority city, is the toughest problem, but even it is solvable. The most important step would be to regionalize crucial services, including schools, police and fire protection. As much as suburbanites might dislike the notion, the metro region’s economic health depends on a vibrant and diverse economy and a stable core city. And as much as Detroiters may balk, they, in turn, need the support of the suburbs if they are to climb out of this hole.

I agree.

Democrats and Republicans dreamed up this stupid Emergency Manager idea 30 years ago because it was easier to do that than take on the deep segregation in most of MI. I suspect Democrats chose to embrace Emergency Managers rather than offend the “Reagan Democrats” in Macomb and Wayne Counties. (Wayne is the county that includes Detroit, but also includes a lot of working class suburbs, many of them white; there has been talk of administering services in Detroit at the county level, though this would still leave out the far more affluent Oakland county of the mix.) Since then, globalization has wreaked havoc on all of MI, but the problem has been especially concentrated in the heavily black cities. And those same cities — Detroit especially — were particularly hard hit when predatory lending greatly accelerated the slow decline of many neighborhoods.

These are tough problems. But the way to solve them is not to segment off the cities and turn them into profit centers for warehousing children until they turn 16, and then further profit centers to imprison them afterwards (Snyder did, thankfully, choose not to increase privatization of MI prisons last week). The way to solve them is not to loot the cities’ few remaining assets, leaving even fewer resources with which to turn around.

Last fall, voters in Southeast MI willingly chose to regionalize DIA. It’s time we started talking about regionalizing, at least, the future of its children.

(Detail of Diego Rivera Industry mural by Inhabitat.)

After the flurry of fast analysis on the fly, getting a post up for discussion and the crucible of discussion here and on Twitter – and a bit of sleep – I have some further thoughts on the amicus brief filed late yesterday by the Obama Administration in Hollingsworth v. Perry.

My ultimate conclusions on what the Obama amicus means and portends has not changed much, but there are several things that should be said both to explain my criticism and give a little more credit to the Administration where due. First an analogy explaining my criticism of the Obama brief.

Imagine if, when Brown v. Board of Education was being considered, the Eisenhower Administration had instructed it’s Assistant Attorney General and OLC chief, J. Lee Rankin, to amicus brief that only Kansas and a handful of other similarly situated states, but not the rest of the country where the bigotry of segregation was at its most prevalent worst, should be granted desegregation. How would history have held Mr. Eisenhower and Mr. Rankin? That is, of course, not what happened in Brown; the Eisenhower Administration filed an amicus brief demanding equality and desegregation for all citizens, in all states.

Messrs. Obama, Holder and Verrilli, however, fell short of such a demand for equality for all in the civil rights moment, the Brown v. Board, of their time. Let the record reflect they did have the courage to join the game, which is in and of itself a commendable thing, just that they did not muster the full courage to play to win for all Americans, regardless of their particular state of domicile – and especially not for those in the states with the most sexual orientation bigotry and discrimination.

In this regard, I think our friend at Daily Kos, Adam Bonin, summarized the duality of the Obama amicus quite well:

To be sure, the brief argues all the right things about why laws targeting gays should be subject to heightened scrutiny, and that none of the proffered justifications for treating their relationships differently have merit (“Reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles.”) Still, for those who were seeking a full-throated endorsement of 50-state marriage equality, you will find this brief lacking.

That said, from the day this suit was filed in May 2009, I have suggested that this limited path is the Court would ultimately take. And it can be dangerous to advance positions which the Court might reject, especially when they are not necessary for the resolution of the instant case. But, still, there was an opportunity for boldness here, and the Obama administration did not take it. As a great man once said:

Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well.

Adam’s point about the fear of overreaching when the Perry litigation was originally filed is a good one. As I think he has evolved to having less fear in that regard over time, the explanation for such a shift comes from the changed nature of the ground underneath the larger issue. It is a testament to the genius of the Perry litigation in its inception, and even more so to the way Judge Vaughn Walker framed an actual trial that laid bare, with both evidence and the inability for haters to provide credible evidence, the hollow immorality and rank bigotry of the Proponents of Proposition 8.

The space created by Judge Walker’s amazing decision created the headroom for a cascade of events in DOMA cases, equality legislation in states and popular votes in other states, all in favor of marriage equality. This past election cycle provided the once unthinkable result of marriage equality going four for four in popular votes.

The ground has so seismically changed, the momentum of social conscience so strong, that we simply occupy a different place now than existed at the start of the Perry litigation. And that is the ground the Supreme Court will have to recognize when they hear oral arguments on March 26 in Hollingsworth v. Perry and March 27 in the DOMA cases.

Regardless of the messy way in which it did so, the Supreme Court (and its Chief Justice, John Roberts) proved in the ACA cases that they are aware of, and attend to, the legacy of the court. It is crystal clear that marriage equality, and equality for sexual orientation, is happening. The only question at this point is how complete, how fast.

This is the great civil rights measure of this period in American history; I find it hard to believe Justice Anthony Kennedy, who has already displayed his social conscience in Lawrence v. Texas, wants to be on the wrong side of history. In August of 2010, on the release of Vaughn Walker’s historic trial court opinion, I quoted Linda Greenhouse in laying out why I thought Justice Kennedy would swing the majority in favor of marriage equality when Perry made its way to the court for review:

As the inestimable Linda Greenhouse noted recently, although the Roberts Court is increasingly dogmatically conservative, and Kagan will move it further in that direction, the overarching influence of Justice Anthony Kennedy is changing and, in some ways, declining. However, there is one irreducible characteristic of Justice Kennedy that still seems to hold true; she wrote of Kennedy:

…he embraces whichever side he is on with full rhetorical force. Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair.

The money quotes of the future consideration of the certain appeal and certiorari to come on Judge Walker’s decision today in Perry v. Schwarzenegger are:

Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”
……
In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.

So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him to see your case on the fair (or not-fair, depending) side of the line.

I believe that Linda is spot on the money with her analysis of what drives Anthony Kennedy in his jurisprudence. And this is exactly what his longtime friend, and Supreme Court advocate extraordinaire, Ted Olson will play on and argue when the day arrives.

Well, that day is upon us now. Honestly, with the tide of momentum headed in the direction it is, I am less and less convinced John Roberts wants to be on the wrong side of civil rights history either.

But giving the Justices the moral and sociological headroom to grant equality to all the citizens, in all the states, especially those in the discriminatory swaths of the country, is key to the cause. The Perry Plaintiffs have done their part. Yesterday, the Obama Administration had the opportunity to go the distance, and they pulled up slightly short.

I feared Obama might come up so short their brief could be counterproductive; that did not occur. The song could have been, and should have been, stronger; but credit where due, they hit the necessary notes. It is filed and done, and it is overall an important and powerful thing. Perry Plaintiffs’ attorney Ted Boutrous put it well:

Their arguments from start to finish would apply to other states,” he said. “The argument of the day (against same-sex marriage) is the responsible pro-creation argument. The United States takes it apart piece by piece. It’s those same types of arguments that are used in other jurisdictions to justify the exclusion of gays and lesbians from marriage.

And as Marcia Coyle observed in the National Law Journal BLT article the Boutrous quote above came from:

And the heightened scrutiny analysis, he added, is “exceedingly important,” not just in the marriage context but in other contexts where gay men and women face discrimination.

Marcia is exactly right (and her report well worth a read), and between the Perry Plaintiffs’ merits brief and the Obama Administration amicus brief, there is a foundation from which to argue to all the Justices, but especially Anthony Kennedy and John Roberts, for equality for all across the board.

Mr. Obama and Mr. Holder can help immeasurably in the coming days leading up to oral argument and decision by the Justices by using their bully pulpit to advocate for full heightened scrutiny equal protection for all, in all states. The cause endures and their duty maintains. And we, as citizens can give them the support and positive feedback to help them do so. Let the final push for full equality begin.

The news was broken, right around 2:00 pm EST by NBC’s Pete Williams, that the Obama Administration would indeed file a brief in support of marriage equality in Hollingsworth v. Perry. Here was the original tweet by NBC’s Williams:

Obama Justice Dept to file Supreme Court amicus brief today opposing Prop 8 in Calif and expressing support for same-sex marriage to resume.

Here was Williams’ followup story at NBCNews.com. The inherent problem with the original report was that it tended to indicate the Obama Administration was briefing only on the restricted Romer v. Evans posture heinously crafted by Judge Stephen Reinhardt in the 9th Circuit.

So, we were left hanging wondering exactly how the Obama Administration really briefed the issue, was it a limited Romer brief, or one for full marriage equality and heightened scrutiny under the equal protection and due process clauses that would give all citizens, nationwide, equality as I argued for earlier this week?

We now have the answer, and the brief, and here it is the brief in all its not quite glory:

The Obama Administration has, shockingly (okay, I do not mean that in the least), tried to nuance its way and split babies. Typical cowardly bunk by Mr. Obama. Lyle Denniston at SCOTUSBlog depicted it thusly:

The historic document, though, could give the Court a way to advance gay marriage rights, without going the full step — now being advocated by two California couples who have been challenging Proposition 8 since 2009 — of declaring that marriage should be open to all same-sex couples as a constitutional requirement.

Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make. Having previously endorsed the general idea that same-sex individuals should be allowed to marry the person they love, the President was said to have felt an obligation to have his government take part in the fundamental test of marital rights that is posed by the Proposition 8 case. The President could take the opportunity to speak to the nation on the marriage question soon.

In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution. What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.

Honestly, I think Mr. Denniston is being kind. President Obama’s position bears the mark of a full throated coward. Clearly, when Mr. Obama said this to ABC News, he was blowing smoke up the posterior of the American public:

…obviously, my personal view, which is that I think that same-sex couples should have the same rights and be treated like everybody else. And that’s something I feel very strongly about and my administration is acting on wherever we can.

That statement would say that Obama actually supports full equal protection for ALL Americans. But the position staked out today in the Administration’s brief filed by his Solicitor General puts the lie to Obama’s rhetoric.

Mr. Obama has consistently lied about his dedication to civil liberties, privacy and the Fourth Amendment, I guess it should not be shocking that he would lie about his dedication to civil rights for all, across all the states, in the form of marriage equality. And that is exactly what he has done. And as Denniston’s article makes clear, this decision bore the active participation and decision making of Obama personally. The cowardice is his to bear personally. Thanks for the fish Mr. Obama.

That is the biggest of the Hollingsworth v. Perry briefing news today, but certainly not the entirety of it. Also filed today, among others, was a brief by a group of 14 states led by Massachusetts and New York and an interesting brief by NFL players Chris Kluwe and Brendon Ayanbadejo. The brief by the 14 states is helpful in the way it portrays marriage in the states, both straight and gay, and in that it, on page four, adopts the position of Olson, Boies and the Prop 8 Plaintiffs that the Supreme Court must find for full heightened scrutiny protection for sexual orientation under the Equal Protection and Due Process Clauses. The Kluwe and Ayanbadejo brief, frankly, is not particularly helpful in that regard as it only discussed the limited Romer based finding that would leave marriage equality up to the states.

The same group of American businesses who weighed in on the DOMA cases also filed a brief today in Hollingsworth v. Perry. In a more negative development, former Solicitor Walter Dellinger also filed an amicus brief today that is literally loathsome and dangerous in it’s argument against even giving standing for appeal to the Supreme Court. Dellinger embarrassed himself, but so too did Barack Obama. Must be something in the water of centrist Democratic thought.

So, there you have it. It was a rather important, if not quite as fulfilling as should have been, day in the life of the Hollingsworth v. Perry litigation. I guess credit should be given to Mr. Obama even for weighing in at all, and undoubtedly most media and pundits will slather him with praise for just that. Somehow, I cannot. The full measure of greatness was there for the taking, and Barack Obama, Eric Holder and Donald Verrilli, Jr. whiffed at the full mark of greatness. They will be remembered for their support, and their failure to truly step up will likely dissipate with time; but let it be said here and now.

In spite of the cowardly and restrictive actions by the “liberal President Obama” the cause of true heightened scrutiny protection for ALL Americans endures and lives on. Just not with the support of the President of the United States of America. that “leader” took the cheap “states rights” cowardly way out. Let us hope Anthony M. Kennedy and the majority of the Supreme Court have higher morals and muster as men.

[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

Leaving aside the heinous 3/5 compromise set forth by James Wilson and Roger Sherman at the founding Philadelphia Constitutional Convention, American history is marked by significant moments of dedication to civil rights for its citizens. Far from perfect, it has been a struggle and evolution. As Ralph Waldo Emerson noted:

Nothing great was ever achieved without enthusiasm.

Which is certainly true, from the Founding Fathers, to Lincoln and the Emancipation Proclamation, to the 19th Amendment protecting the right of women to vote, to the Civil Rights Act of 1964, moments of enthusiasm, sweat, toil and, eventually, greatness mark the struggle for equality for all in the United States.

And here we are on the cusp on the next defining moment in the quest for equality for all in the US. It is not for origin, not for skin color, not for gender, but for something every bit as root fundamental, sexual identity and preference. Marriage equality, yes, but more than that, equality for all as human beings before the law and governmental function.

For all the talk of the DOMA cases, the real linchpin for the last measure of equality remains the broad mandate achievable only through Hollingsworth v. Perry, the Proposition 8 case. The case for full equality in Hollingsworth has been made beautifully, and strongly, in the Respondent’s Brief penned by Ted Olson, David Boies, Theodore Boutrous and Jeremy Goldman.

But there is still a missing voice in the discussion, that of the United States government. The government has the voice, and spoke it loudly in the DOMA litigation, first in a policy declaration letter to Congress, then in lower court briefing and finally in Supreme Court briefing. Mr. Obama’s initial policy declaration noted that we must “suspicious of classifications based on sexual orientation” and concluded:

…that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Indeed that is true, but it only takes the equality movement so far, it still leaves room and ability for bias against sexual orientation by individual states, most notably on the front of marriage equality, but potentially a host of other invidious modalities as well.

That is not good enough. It is time for the government, by and through the Obama Administration, to take the final step in cementing full equality for all citizens, not just as to the federal government, but as to the states as well. The government needs to file an amicus brief supporting full equality in Hollingsworth v. Perry.

Three men are in the crucible – President Barack Obama, Attorney General Eric Holder and Solicitor General Donald Verrilli, Jr. History will remember these men either way, but they have the opportunity to be remembered among the giants in civil rights history. It is a defining moment for their once and future legacy.

What a major moment in history this is, and will be, if the if the Obama Administration Solicitor General files a brief in support of full heightened scrutiny based protection for sexual orientation.

It brings to mind the scene from “Lincoln” where President Lincoln says

“Now, Now, Now”

and forces the 13th amendment through because “Now” was the moment to eradicate slavery in one fell swoop and waiting posed unconscionable risks and further damning inequality.

Such is exactly the time and place now as to the last recognized measure of fundamental equality, sexual orientation. The Perry Plaintiffs’ team has argued well in their brief for the broad principles of due process and equal protection heightened scrutiny that would resolve these issues “Now”. All the stars are aligning. Prominent Republicans have filed an amicus brief. So too a broad swath of leading American businesses. Openly gay Congress members are calling for it.

Now is the time to seize the moment and eradicate discrimination across the board against gay men and women. This is the moment for enthusiasm, and President Obama, Attorney General Holder and Solicitor General Verrilli have a historic opportunity to help make it happen. This is the moment, and they need to step up. Great men take such great steps.

The time is “Now, Now, Now”.

File the amicus brief for full equality in Hollingsworth v. Perry gentlemen.