Further Reflections on the Obama Amicus Brief in Prop 8

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Supreme Court CoolAfter 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 Read more →

The Obama DOJ Files a Timid Brief in Perry/Prop 8!

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Picture-1The 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.]

Weeping For the Scarecrow

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As you may have heard by now, friend of this blog, and our friend at Firedoglake, John Chandley, aka “Scarecrow”, has died. Let the record reflect that I am freaking tired of being on the memorial duty. Seriously tired. If you are a participant in the discussion at this blog, or a related friend thereto, quit dying. Please. Enough.

John Chandley was a man. He stood firm and resolute on his own, in spite of being known probably to you only for blogging at Firedoglake under the pseudonym of “Scarecrow”. But Scarecrow was much more that that; never a merely a straw creature, but one who definitively stood firm for that which was righteous in the income inequality wars:

Scarecrow on a wooden cross Blackbird in the barn
Four hundred empty acres that used to be my farm
I grew up like my daddy did My grandpa cleared this land
When I was five I walked the fence while grandpa held my hand

Rain on the scarecrow Blood on the plow
This land fed a nation This land made me proud
And Son I’m just sorry there’s no legacy for you now
Rain on the scarecrow Blood on the plow
Rain on the scarecrow Blood on the plow

The crops we grew last summer weren’t enough to pay the loans
Couldn’t buy the seed to plant this spring and the Farmers Bank foreclosed

Called my old friend Schepman up to auction off the land
He said John it’s just my job and I hope you understand
Hey calling it your job ol’ hoss sure don’t make it right
But if you want me to I’ll say a prayer for your soul tonight

“Like a scarecrow in the rain”. Aren’t we all. That is the meter of life, and it is transient. Funny thing was, the real John Chandley, at least so far as I even knew him, was not transient in the least; but came out of the Berkeley swamps, cool and slow, like John Chandley’s friend and colleague at the time at Berkeley (John/Scarecrow was present at Berkeley in the moment), Mario Savio, with a backbeat hard to master.

The musical imagery here is mine; I am not sure what would be the preferred cocktail de jour of John. Before I leave, let me offer up one more paean of my own to the life of the one, and only, Mr. John “Scarecrow” Chandley”:

The world’s goin’ crazy and
Nobody gives a damn anymore.
And they’re breakin’ off relationships and
Leavin’ on sailin’ ships for far and distant shores.
You’re my brother,
Though I didn’t know you yesterday.
I’m your brother.
Together we can find a way.

Scarecrow would have, by every right that I knew him, been trepidatious in regards for our future; yet hopeful for the success and greatness that may await us all.

It is hard to tell where we all go in the living, much less where we go beyond. But never let it be said this blog does not care about the voices who were its friends and colleagues. And certainly not tonight.

RIP John “Scarecrow” Chandley.

The Constitutional Argument Against the Platinum Coin Stunt

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They came for the 4th Amendment, but it was necessary for the war on drugs. They came for the 5th Amendment, but due process had to be sacrificed for the war on terror. They came for the 6th Amendment, but confrontation had to succumb to classification and secrecy. They came for the War Powers Act because Libya was “required to be protected”. Now they are coming for one of the most fundamental of Constitutional checks and balances, the Congressional prerogative of the purse.

Who are “they”? They are, of course, the ubiquitous Article II Executive Branch. And they have a never ending thirst for usurping power, all in the name of efficacy. It is always necessary, it is always an emergency, there is always a reason, for them to take the power. They are the Daddy Branch, and it is always best to trust them. So they say.

Back when “they” were the Bush/Cheney regime, liberals, progressives, and Democrats in general, had a seriously dim view of accumulation and usurpation of power in a unitary Executive. When Dick Cheney, David Addington and John Yoo contorted existing law, gave it application never intended, and manufactured legal and governmental gimmickry to accomplish stunningly naked Executive power grabs, those on the left, especially the blogosphere, screamed bloody murder. Well, that is precisely what is afoot here with the Mint the Coin! push.

Where is that principled set of voices on the left now? Things are different when it is your guy in office I guess. Because the active liberal/progressive left I see out there is currently screaming to “Mint the Coin!” doesn’t seem to realize they are calling for the same type of sham rule of law that John Yoo engaged in.. This is most curious, because “Minting the Coin!” contemplates a naked power grab by the Executive Branch of historic proportions. It is a wholesale taking of the Congressional purse prerogative under the Constitution. But, hey, its an “emergency”. Of course. It always is when the Article II Executive Branch comes to feed in the name of efficacy.

What is the value of Separation of Powers, and constriction of Constitutionally assigned powers to the branch to which they were assigned, and what is the value in insuring that an imperial Executive Branch does not usurp too many powers? Let James Madison, in Federalist No. 47 explain:

No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.
….
The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them. ” This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department (Publius, Federalist 47).

What is the import of the Congressional “Power of the Purse”? As James Madison said in Read more →

Out Of The Blue & Into The Black: Sad Farewells & A Moment For Schacht

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They give you this, but they gave us Schacht.

Hi there friends of the Emptywheel blog. The collective lost another longtime voice.

It’s better to burn out
than it is to rust
The king is gone
but he’s not forgotten.

Hey hey, my my
Rock and roll can never die
There’s more to the picture
Than meets the eye.
Hey hey, my my.

Our friend Dr. Robert Schacht. Knew him for years online, and then met him personally at Phoenix Sky Harbor Airport in a bar. Wow. One smart and fun human.

He never burned out, he never came to rust. Bob Schacht will never fade away.

Thank you Bob Schacht.

Vaya con dios and Aloha.

Bangladeshi Garment Fire: Downstream Effect of a WalMart Economy?

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One of the things hot on the nets yesterday was Peter Suderman’s pushback against the anti-WalMart action that has been progressing over the last week, culminating in organized protests at numerous stores across the country on Black Friday. Even Alan Grayson got in on the WalMart Thanksgiving protest mix.

But Suderman, loosing followup thoughts after an appearance regarding the subject on Up With Chris Hayes caused a storm. Here is a Storify with all 17 of Suderman’s Tweet thoughts. Suderman, who is a Libertarian and certainly no progressive, nevertheless makes some pretty cogent arguments, and the real gist can be summed up in just a few of the Tweets:

So the benefits of Walmart’s substantially lower prices to the lowest earning cohort are huge, especially on food.
**********
Obama adviser Jason Furman has estimated the welfare boost of Walmart’s low food prices alone is about $50b a year.
**********
Paying Walmart’s workers more would mean the money has to come from somewhere. But where?
**********
Raise prices to pay for increased wages and you cut into the store’s huge low-price benefits for the poor. It’s regressive.

Suderman goes on to note that WalMart workers are effectively within the norm for their business sector as to pay and benefits.

My purpose here is not to get into a who is right and who is wrong, the protesters or Suderman, I actually think there is relative merit to both sides and will leave resolution of that discussion for others.

My point is that the discussion is bigger than than simply the plight of the WalMart retail workers in the US. WalMart is such a huge buyer and seller that it is the avatar of modern low cost retailing and what it does has reverberations not just in the US life and economy, but that of the world. Ezra Klein came close to going there in a reponse piece to Suderman’s take:

But Wal-Mart’s effect on its own employees pales in comparison to its effect on its supply chain’s workers, and its competitors’ workers. As Barry Lynn argued in his Harper’s essay “Breaking the Chain,” and as Charles Fishman demonstrated in his book “The Wal-Mart Effect,” the often unacknowledged consequence of Wal-Mart is that it has reshaped a huge swath of the American, and perhaps even the global, economy.

Not “perhaps” the global economy Ezra, definitively the global economy. WalMart sets the tone for high volume Read more →

Wherein DC Sir Lancelots Turn Their Tail And Flee Like Candyass Sir Robins

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Attention Americans:

Those brave elected and appointed representatives who represent YOU in the Federal Government are fleeing! Well, granted, I guess that doesn’t really account for the elected members of Congress who have been diddling and twiddling their thumbs, among other things, for a while now in order to suck at the tit of corporate cash, while doing nothing for you on the record at their elected jobs (no, Darrell Issa’s dog and pony show doesn’t count) and throw it around to perpetuate a fraud on you.

But, as they say in movies, that is something completely different.

No, here is the notice I take just a little umbrage with:

Non-emergency employees (including employees on pre-approved paid leave) will be granted excused absence (administrative leave) for the number of hours they were scheduled to work unless they are:

required to telework,

on official travel outside of the Washington, DC, area,

on leave without pay, or

on an alternative work schedule (AWS) day off.

Telework-Ready Employees who are scheduled to perform telework on the day of the announcement or who are required to perform unscheduled telework on a day when Federal offices are closed to the public must telework the entire workday or request leave, or a combination of both, in accordance with their agencies’ policies and procedures, subject to any applicable collective bargaining requirements.

Emergency Employees are expected to report to their worksites unless otherwise directed by their agencies.

As friend of the blog, Timothy Shorrock, noted:

No government Monday. A state of anarchy will reign!

I’m with Tim, we are all SO SCREWED!

Okay, and I’m going to take a flyer that Mr. Shorrock agrees, the nation may not only survive, but actually prosper without the usual cabal of corrupt con men and bloodsuckers that generally run things in Washington DC on a “normal” day. Call me crazy, but I am going out on that limb.

Here is my issue: They are all bozos on that bus. Pretty much all of the NOAA, CNN and other data intensive models have been prediting this likely Sand path for days.

Our Men in Havana, er, I mean men and women in DC, are just figuring this out now??? Perhaps the usual rhesus monkey brains were otherwise occupied still figuring out the Administration’s housing policy.

And, look at the directive. What does it really say? That the poohbahs suggest common workers, just being notified a couple of hours before they go to sleep, do what they were already doing, or already had the option to do, and work from home. For any others unable to do so, the suggestion is they take leave.

In short, the real backbone of the federal government, the regular workers, are being treated in a tardy and tawdry manner.

By the 1% MOTUs. Shocking, no?

So, while the politicians who are not already cravenly out of town on your dime are absent, even the remaining Knights of The Pinhead Table run like crazed Sir Robins.

Ain’t that America?

Uh, yeah, so tomorrow will be different from exactly what other day you federal jackasses??

Because, Congress, the DOJ, the SEC, the FEC, the NLRB, and all the rest, BEFORE SANDY, were sooooooo totally responsive to the needs and desires of their constituents.

On a serious note, this hurricane is pretty clearly a grave matter for human safety. Care SHOULD be taken. The projected damage had the DC/Eastern Virginia/Maryland area in the cone of danger in nearly every projection.

The federal government waited until now to tell regular workers, the real backbone of our functioning government to, paraphrasing “stay at home if you have that already available, or otherwise work as best you can.

That is loathsome from a leadership of cowardly and craven Sir Robins. And, on the remote chance you do not understand what a “Sir Robin” is, watch the video.

R.I.P. Senator Specter, You Will Be Missed

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The Snarlin has ceased; via CBS News:

US Senator Arlen Specter, whose political career took him from Philadelphia City Hall to the US Congress, died Sunday morning at his home in Philadelphia at the age of 82 from complications of non-Hodgkins Lymphoma. He was born February 12, 1930.

His career was marked by what the pundits and Specter himself called “fierce independence.” But long before Specter ever stepped onto the Senate floor in Washington DC, he made it into national prominence by serving as assistant counsel for the Warren Commission, which investigated the 1963 assassination of Pres. John F. Kennedy.

Specter postulated the controversial “single-bullet theory” that was eventually embraced by the panel and still stands to this day, despite the cry of conspiracy theorists who say there was more than one gunman in Dallas that November day.

“Admittedly a strange path for a bullet to take, but sometimes truth is stranger than fiction,” Specter said.

We have had a complicated relationship with Arlen Specter here at Emptywheel, sometimes castigating him, sometimes praising him, sometimes laughing at him, sometimes laughing with him. Specter engendered all those things. But I always sensed a very decent heart beating underneath Specter’s surface, even if it was all too often masked by his votes for, and often vociferous support of, ever more destructive policies of the right.

For this, Specter earned the nickname “Scottish Haggis” here in the annals of Emptywheel. The term had its root in Mr. Specter’s predilection for Scottish Law, and goes all the way back to the original incarnation at The Next Hurrah. For a number of reasons, offal and otherwise, it was a nickname that stuck and seemed appropos and seemed to reflect the complicated nature of Senator Specter.

On a personal note, I did not have an abundance of interaction with Sen. Specter and his office, but in that which I did have, I found him and his office to be beyond both kind and professional. One instance stands head and shoulders above the others, and surrounded the Obama scuttled nomination of Dawn Johnsen to be head of the Office of Legal Counsel (OLC). It was my contention from the outset that the whip count votes were there to confirm Professor Johnsen for the job she was perfect for. And, in the roiling aftermath of the Bush/Cheney unitary executive excesses, the country desperately needed Johnsen’s intellectual sense of honesty and Constitutional integrity.

The only reason Dawn Johnsen did not get confirmed as OLC head was Barack Obama used her as false bait and cat nip for the more noisy progressive liberals. It was a glaring sign of depressing things to come from the not nearly as Constitution minded Barack Obama as had been pitched in his election run. Not only could Johnsen have been confirmed, as I pointed out before, she could also have been recess appointed by Obama. Despite all the ridicule I took at the time, that point has been proved conclusively by the later recess appointment of Richard Cordray to be head of the CFPB (another instance of Obama using a supremely qualified progressive, Elizabeth Warren, as bait and then hanging her out to dry).

The point was never that Dawn Johnsen couldn’t be confirmed, it was that Barack Obama and the insiders of his White House did not want her confirmed into leadership of the OLC. I knew that from talking to several inside the DOJ and Senate Judiciary Committee, but that was all off the record. When I found an obscure old comment from Arlen Specter indicating he was willing to support a cloture vote for Johnsen as far back as his second meeting with Dawn Johnsen on or about May 12, 2009, it was by then an old, and quite obscure comment. Specter could have walked it back or dissembled on the subject.

Arlen Specter didn’t walk it back or dissemble, instead he personally confirmed it to me. With the already in the bag vote of Sen. Richard Lugar, that was the 60 votes for Dawn Johnsen at OLC. Specter knew it would infuriate both the GOP and the Obama White House, and he knew exactly what story I was writing. He stood up. Oh, and, yes, he knew about “Scottish Haggis” too. The man had a sense of humor.

For the above vignette, and several others, I will always have a soft spot in my heart for Snarlin Arlen Specter. His life and work in government spanned over five decades, he has got my salute today.

Sen. Specter repeatedly had to fight off serious cancer, and he did so with aplomb, courage and his good humor. He also was a tireless champion for the NIH and funding of cancer and stem cell research. When confronted with the last battle, the one which finally took him, Specter was upbeat, defiant and determined to get back to his part time hobby of stand up comedy. May the Scottish Haggis have many laughs wherever he may travel.

Traveling Wheels

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Hello one and all, and greetings from lovely downtown Providence, Rhode Island. Marcy and I are both here for Netroots Nation; she has been in town since yesterday, and I just arrived this morning. We will both be here through Sunday afternoon.

So far Marcy and Jim have kept up regular posting, which is fortunate because I had a literal clusterfuck of problems rain on me yesterday which I was supposed to be providing content and getting ready to go. I have no idea what substantive posting we will do, so Jim may be piloting the ship. I’m a gonna guess he may want to be trash talking about Alabama, an SEC team, finally breaking through and winning the Women’s College World Series in softball. Credit where due, they rolled the two other best teams in the brackets, Oklahoma and ASU.

More importantly, if any of you are at Netroots, or in the vicinity, we would love to say hi. Leave a note here, or just find us – we are wearing stinking badges!

We will be around, but if there is any hot breaking news, and we don’t look to be around at the moment, put it up in comments and let fly with the analysis. In the meantime, since these Wheels are traveling, some traveling music for you from Bob Seger and the Silver Bullet Band.

Prop 8 Appeal Takes A Step Forward; But Not The Big One It Should Have

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Liberty & Justice by Mirko Ilic

Those of us watching and covering the Proposition 8 case, formally known as Perry v. Brown, got a cryptic notification from the court yesterday afternoon. The notice read:

This is to inform you that a filing is expected on Tuesday, June 5, 2012, at approximately 10 a.m., in Perry v. Brown, case 11-16577, also know as the Proposition 8 case. The filing will be available from the Ninth Circuit Court of Appeals website, www.ca9.uscourts.gov/opinions. We are advised that this is not a large document. If you have difficulty downloading the filing, please contact us by email.

The fact the court said the document would appear in their “opinions” section seemed prophetic. It was. The opinion was just released and my prediction on it was right, it did signal a final opinion and a declination of en banc consideration.

Here is the order. The key takeaway language:

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.

The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.

Notable is the sniping dissent lodged by Judges O’Scannlain, Bybee and Bea, and the broadside shot right back by Steve Reinhardt and Mike Hawkins, who were the accused when O’Scannlain said:

Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012).

Interesting is the sniping back and forth, but ultimately of no moment. The ruling today is important, however, because the ultimate destination for the Prop 8 Perry case is now straight to the Supreme Court. As I explained when the original panel decision was issued, authored by Steve Reinhardt, it was different than expected:

It is a narrower and shallower victory than I had hoped and predicted though.

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and social recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those opposite-sex couples. the Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 US 620, 633 (1996).

By basing on Romer instead of the full constitutional protections of due process and equal protection, the court has likely increased the odds the decision stands up to further appeal, but has done a disservice to those seeking true equality, both as to marriage and otherwise, for gays and lesbians. In short, it does not move the ball nearly as much as it should have, and was hoped for. The decision of the 9th does not go nearly as far as Vaughn Walker did, and wastes much of the meticulous taking of evidence, making of findings of facts and law, and crafting of his decision. It was hand tailored to go MUCH further, and that now appears at least significantly squandered.

That analysis of the panel decision in Perry still stands. The bigger problem is that many experts on this issue have been putting their eggs in the basket of the DOMA litigations. And the problem with that is that the biggest of the DOMA cases just got decided in the 1st Circuit last week, and it too is grounded on Romer and is painfully narrow and depressing as to hope for full extension of protected status to sexual orientation by individuals.

As Reuters explains:

“The federalism aspect of the decision makes it a stronger case to bring some conservatives along,” said Paul Smith, a lawyer for the same-sex couples.

The Supreme Court has become increasingly concerned with states’ rights over the past 10 years, striking down numerous federal laws that intrude on state authority, said New York Law School professor Arthur Leonard. The conservative justices have tended to defend traditional areas of state control. Justice Antonin Scalia, for example, criticized the majority decision in Romer for creating a new level of equal protection for gays and lesbians, but he based his argument on a defense of states’ rights.

The DOMA litigation is clearly presented as a battle between federal and state powers. The plaintiffs only challenged the law’s central provision that denies federal economic benefits to married same-sex couples. They left alone the part of the law that says a state doesn’t have to recognize same-sex marriages performed in other states.

While the focus on states’ rights could lead the Supreme Court to strike down DOMA, it could also make it more difficult for gay rights advocates to achieve their ultimate goal: making same-sex marriage a federal constitutional right.

The focus on federalism could also undercut arguments against state laws like Proposition 8 that ban same-sex marriage. Schowengerdt, the lawyer from the Alliance Defense Fund who is currently defending gay marriage bans in Hawaii and Oklahoma, said he plans to cite the recent Massachusetts ruling to support his position that the definition of marriage should be left up to the states.

He pointed out that 31 states had passed constitutional amendments defining marriage as between a man and a woman. “At the end of the day, federalism helps proponents of traditional marriage,” he said.

By having both Perry and the 1st Circuit DOMA rely on the Romer paradigm, the main thrust of LGBT litigation is now set up under a states rights analysis as opposed to full equal protection status across the board and uniformly nationwide.

While many of the experts, pundits and lay people closely watching these cases may be cheering today, it seems a tad hollow. This is not the posture that Vaughn Walker worked so hard to put in place, the posture that the affected citizens deserve.

[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.]

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