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I haven't been posting lately, and for a variety of reasons it'll probably be another couple of weeks before I'm back at it regularly.  But I'm something of an election junkie, so here are a few observations from last night.

Propositions 34 and 36

Supporters point out that more than four million Californians voted to abolish the death penalty.  That's extraordinary, but it wasn't enough.  Proposition 34 lost by about a half million votes.

Is there a lesson in that?

Here's one.  Economic arguments against the death penalty in a weak economy have force, but not as much force as misleading stories about monsters being set free to rape and pillage and murder at will.  Here's another. If California voters won't vote for abolition, it's probably not a good idea for abolitionists to be aiming for a referendum in other states, either.

But while voters were turning down Prop 34, they voted big for 36.  That was the one to loosen the state's 3-Strikes law.  It passed with just over 2/3 of the vote.  That's a margin of more than 3 million voters which is downright impressive.

But notice that they didn't eliminate three strikes.  They just limited it.  Unless one of the three felony strikes involved guns, sex, or drugs, a third felony won't trigger an automatic 25-life sentence unless it's a particularly serious or violent one.  Or something like that.  Otherwise, the third strike just gets a sentence double what it would otherwise be.  So not paying for the pizza - if that's the third felony - may not lead to a life sentence.  Just years and years.  Which is better, but if I were in the Golden State I probably wouldn't be dancing in the streets over it.

Texas Court of Criminal Appeals

Maybe if the democrats had actually made an effort to oust Killer Keller, there'd be good news on this one.  Maybe not.  In any event, they didn't and she got herself re-elected.

At the same time, and to the surprise I expect of nobody - least of all he - Mark Bennett's quixotic campaign for the Court of Criminal Appeals failed.

Marijuana

Arkansans and Montanans decided the scourge of Killer Weed is sufficiently horrifying that those who needs its health benefits should shut up and suffer.  They turned down proposals to allow medical marijuana.  On the other hand, those drug-addled voters in Colorado and Oregon and Washington voted to legalize a recreational puff.

Of course, Obama won re-election and his justice department has made clear that whatever the states might say, the feds will happily prosecute anyone caught with a few seeds.  It's not like it was an election issue or anything, and there's no reason to imagine that a Romney win would have changed that.  

But the legalization votes signal something important about a change in direction.  Not everywhere and not all at once, but it's a movement.  The drug war isn't anywhere near its last gasp, but there's some indication appearing that its worst excesses are maybe, just maybe, beginning to pose a problem.

Same-Sex Marriage

In state after state after state, voters have enacted bans of one sort or another on same sex marriage.  Those places where it's become legal have achieved legality by legislation or judicial decision.  (And there's a pretty good chance that SCOTUS will rule on the federal defense of marriage act, known as DOMA, this term.)  Until now.

Voters in Maryland and Maine passed referenda in favor of same-sex marriage.  It looks like maybe Washington State voters will, too.  And in Minnesota, while they sent Michelle Bachman back to Congress, they turned down an effort to ban same-sex marriage.

Immigration and Immigrants

If exit polling is to be believed, what everyone paying serious attention expected actually happened.  Latino/Hispanic voters went big for Obama and it's not because they're major fans of the Affordable Care Act or increasing taxes on those making over $250,000 or because they agree with his stands (or maybe half-getting up from his seats) on abortion or same-sex marriage or the right unilaterally to decide which Americans should be killed by drones.  

No, they voted for Obama because even if he didn't actually manage to get the Dream Act passed, he favored it.  And because he didn't announce that they should all be deported - and maybe even deport themselves.  And because he wasn't openly hostile to them.

Because, that is, the Republicans drove them away.  We don't want your kind, they effectively said, which is another way of saying "We don't want your votes."  Which if you're trying to figure out how to drive away voters is a pretty good approach.  But it can be a problem if they all come out and vote against you.  And if they're the fastest growing segment (at least by some measures) of American society.

On the other hand, Joe Arpaio cruised to an easy, and apparently unprecedented, sixth term as Sheriff. So maybe none of that applies in Maricopa County, where not much else that reflects either good sense or the Rule of Law does, either.

Abortion

It should simply be noted that the Senate candidates who said the stupidest things about pregnancy and abortion all lost.  

SCOTUS

Over at The Volokh Conspiracy, David Bernstein offers a series of predictions.  This one is probably right.

I’m pretty confident that Ruth Bader Ginsburg will retire before Obama’s term is up. I’m also pretty confident that unless they die or become totally incapacitated, Anthony Kennedy and Antonin Scalia aren’t resigning.

Democracy

The 1964-65 television season brought a short-lived dramatic series about a state legislator, James Slattery, played by Richard Crenna.  (It apparently played in Latin America in 1967.)

Here's how each episode began, and it's perhaps appropriate that I can only find it with Spanish subtitles.

Well, Maybe Partial Victory, But the Trending's Good

So Anderson Cooper is gay.  Ho hum. He wrote to Andrew Sullivan:

I’ve begun to consider whether the unintended outcomes of maintaining my privacy outweigh personal and professional principle. It’s become clear to me that by remaining silent on certain aspects of my personal life for so long, I have given some the mistaken impression that I am trying to hide something - something that makes me uncomfortable, ashamed or even afraid. This is distressing because it is simply not true.
I’ve also been reminded recently that while as a society we are moving toward greater inclusion and equality for all people, the tide of history only advances when people make themselves fully visible. There continue to be far too many incidences of bullying of young people, as well as discrimination and violence against people of all ages, based on their sexual orientation, and I believe there is value in making clear where I stand.
The fact is, I'm gay, always have been, always will be, and I couldn’t be any more happy, comfortable with myself, and proud.
I have always been very open and honest about this part of my life with my friends, my family, and my colleagues. In a perfect world, I don't think it's anyone else's business, but I do think there is value in standing up and being counted. I’m not an activist, but I am a human being and I don't give that up by being a journalist.

So Anderson Cooper is gay.  And nobody much cares even though it made headlines.  Hell, they let Ellen DeGeneris host the Oscars after she came out as a lesbian.  And now gays and lesbians can get killed in Afghanistan just like straight men and women can.  And they can get married in Vermont and Massachusetts and New Hampshire and Connecticut and New York and DC. and Iowa fergodssake.  And the 9th Circuit said Proposition 8 violates the Equal Protection Clause, and a whole bunch of courts now have said that DOMA does, too. And now SCOTUS will get a chance to weigh in on the question since a cert petition on DOMA was filed on Friday and one on Proposition 8 is due in early September.

Of course, the crazy folks of Westboro Baptist Church still cheer at dead Americans because

 

And while the Phelps family may be particularly rabid, there's still no shortage of prejudice against gays and lesbians and bisexuals and, god knows the transgender people.

Yet what a change.  What progress.  

Linda Hirshman's new book, Victory: The Triumphant Gay Revolution, tells how it happened.

This is popular history, so Hirshman tells stories.  More, she gives us people.

Take Harry Hay.  The gay, card-carrying communist had a problem.

[N]o matter how Harry tried, he could not reconcile his two worlds.  None of his homosexual lovers was the least bit interested in politics.  When he came to a gay Halloween party one year around 1936 dressed as the "demise of Fascism," no one could figure out what his costume meant.

But Hay persevered, understood the need to make the personal political and started what may be first gay consciousness-raising groups.  Identity politics.  

Or take Frank Kameny, a Ph.D. astrophysicist fired from the Army Map Service.  Seems that a year earlier, he'd been standing at a urinal in a men's room at the San Francisco bus station when someone made a pass at him.  A couple of cops, who'd been eyeballing the place through a ventilation grill, arrested Kameny.  He took a deal and the charges were dismissed.

The commandeer of the map service fired him for not describing his offense adequately on his application form, and the Civil Service Commission followed with a ruling that he was immoral and thus unsuitable for federal employment.

He fought it and fought it. The ACLU helped for a while, but national policy treated "homosexuality as conduct raising legitimate security concerns," and it wouldn't take his case to the Supreme Court.  And frankly, it wouldn't have mattered.  But where lawsuits wouldn't work, Kameny thought of action.  He became, in Hirshman's words, "the godfather of homosexual militancy."

Or maybe Gavin Newsom.  Dianne Feinstein's guest at the 2004 State of the Union speech, he went ballistic when President Shrub called for a constitutional amendment prohibiting same-sex marriage.

As he listened to the conservative audience members congratulating themselves that someone was finally going to "do something about the homosexuals," he got even madder.  How dare the president of the United States use his office to divide the country and instigate such a hateful idea?

Newsom wasn't just some guy in the gallery at the speech.  He was the mayor of San Francisco, which meant he could do something about his anger.  He went home and ordered San Francisco to start issuing marriage license to same-sex couples. Sure, it didn't last.  But the firestorm he started just kept going.

Of course, it'shttp://www.blogger.com/blogger.g?blogID=5945843206427351559#editor/target=post;postID=193703454022747002 not just people.  

There was Stonewall, the riot and the marches on its anniversary. And ACT UP and the struggle to get the FDA and the CDC and the rest of the government to acknowledge the reality of AIDS and pump resources into dealing with it. 

We die. They do nothing.

And there are the legal fights.  Hirshman gives a terrifically rich account of how Colorado came to amend its constitution to prohibit any effort to protect gays, lesbians, and bisexuals from discrimination.  She follows the litigation up to Justice Kennedy's opinion for the Supreme Court in Romer v. Evans.

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. 

If Romer was a great decision, going some way toward welcoming gays and lesbians into the social compact, it didn't undo Bowers v. Hardwick  which said that it was ok to prosecute them for acting on who they were.

But Kennedy took it on again, writing the opinion in  Lawrence v. Texas reversing Bowers.  

When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

Indeed.

There's more, much more. Including, especially, the fight for same-sex marriage and the struggle to get the military to accept gays.

And if the title, Victory: The Triumphant Gay Revolution is premature, well, yeah, it is.

The courts, the legislatures, the President (who has finally evolved to the point where he thinks same-sex marriage should be allowed except in states that want to prohibit it), they can only achieve so much.  The major legal battles are being won.  There are more to come, certainly, but the trend is there.  Victory, though, that's something else.

Discrimination doesn't end when the courts or the legislature or the executive or all of them say it does.  Hatred doesn't stop because we punish it. 

Hirshman knows she's on thin ice claiming Victory.  But there's so much to cheer, she can't help herself.  It's a quibble, of course, but the complacency-inducing, ultimately false claims of victory and triumph remind me of a tendency to overdo.  I stopped counting, after a while, the number of people Hirshman describes as legendary. (Of course, none of them are actually legends, but the excess was more annoying than the word choice.)  

One of the folks who's not a legend is Matt Coles.  He, instead, is "the experienced and strategic éminence grise from San Francisco."  It's quite an accolade.  Alas that's the first of two passing references to him.  Why? How? What makes him special?  We're never told.

There's a lot to like about Victory.  But it's disjointed and repetitive. The prose can be sloppy, the tone occasionally too glib.

But for the history. More than you imagined.

From Stonewall to the Wedding Hall

[S]eparated by a generation, a phalanx of state troopers and 10 feet of red marble. 

That's how Nicholas Confessore and Michael Barbaro, writing in the Times, described the demonstrators outside the chamber of the New York State Senate tonight while inside the senators were voting on whether to enact legislation allowing same-sex marriage in the Empire State.

The answer they gave, by a vote of 33-29, with 4 Republicans crossing the aisle to vote with 29 Democrats, was a resounding "Yes."

And it's damn well time.

The other day I was talking about gay rights and the Equal Protection Clause of the Fourteenth Amendment with a prospective client who cared deeply about the issue.  I told him that I was quite sure that in his lifetime, if not in mine, it would be understood that gays and lesbians would be entitled to equal protection of the law.  I thought that not because it's right that the Equal Protection Clause should be so extended.  It is right, of course, but I don't count on the courts simply doing the right thing. No, my reasoning was based on that old 1960s bugaboo: The Generation Gap.

The evidence is absolutely clear.  Younger people support gay rights.  Opposition comes from the old.

And so it was.

In the corridors of power.

With the cops to keep the peace.

“Support traditional marriage,” read signs held by opponents. “Love is love, Vote Yes,” declared those in the hands of the far more youthful group of people who supported it. 

Now, in New York, it was time.

For Senate Republicans, even bringing the measure to the floor was a freighted decision. Most of the Republicans firmly oppose same-sex marriage on moral grounds, and many of them also had political concerns, fearing that allowing same-sex marriage to pass on their watch would embitter conservative voters and cost the Republican Party its one-seat majority in the Senate. Leaders of the state’s Conservative Party — the support of which many Republican lawmakers depend on to win election — warned that they would oppose in legislative elections next year any Republican senator who voted for same-sex marriage.
But after days of agonized discussion capped by a marathon nine-hour, closed-door debate on Friday, Republicans came to a fateful decision. The full Senate would be allowed to vote on same-sex marriage, the majority leader, Dean G. Skelos, said Friday afternoon, and each member would be left to vote according to his conscience.

Voting one's conscience.  What a strange concept.

But sometimes, not often but sometimes, legislators forget that they're supposed to march in party lockstep.  Sometimes they get to say that they were elected not solely to be the voice of the portion of their constituency that elected them but to exercise independent judgment.  Independent, even, of party.  Independent, even, of pure politics.

"The days of just bottling up things, and using these as excuses not to have votes — as far as I’m concerned as leader, its over with," said Mr. Skelos, a Long Island Republican. 

We'll see how long, how far that lasts.

But for now.  For tonight.

Good work guys.

On to Washington.

A Day of Good Tidings

Let us now praise those to whom we give power and who choose to use it wisely, and let us remember this day when some of them did.  (Actually, yesterday, since it's well past midnight as I write, but you get the idea.)

Two events.  Different subjects, different states, different government officials.  But still.

* * * * * * * * *

You know about the Honorable Vaughn R. Walker, Judge, United States District Court for the Northern District of California.  In 138 pages Judge Walker said what is clearly true.  Denying same-sex couples the right to marry is, plainly and simply, irrational.

Marriage, Judge Walker said (and everyone agrees; this is as close to settled law as you'll get these days), is a fundamental right and fundamental rights cannot be abridged without compelling reason.  There is no such reason.  Thus, California's ban on same-sex marriage violates the Due Process Clause of the Fourteenth Amendment.  To the canard that those seeking the legal right to marry persons of their own sex are asking for the recognition of a new right, Judge Walker (I keep giving him the honorific because he so fully earned it) responded simply and accurately.  They do not ask for a new right; they ask, rather, to be allowed the same right as those who would marry persons of of the opposite sex: The right to have their loving, committed, and it is to be hoped lasting relationships recognized as marriages. 

That voters approved Proposition 8 denying same-sex couples the right to marry, Judge Walker said, is irrelevant since

fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.

That's a quote from the Supreme Court's 1943 decision in West Virginia State Board of Education v. Barnette.*

There's really not much need to say more.  But Judge Walker did.  He concluded that California's ban on same-sex marriage also violated the Equal Protection Clause.  Even under the most deferential legal standard of review for such claims, the ban on same-sex marriage fails.  All the arguments of the proponents of the ban, he concluded, really amount to no more than "[m]oral disapproval," and that's an insufficient and irrational basis for discrimination.

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

We're not done, of course.  The case now moves to the Ninth Circuit.  Then to the Supreme Court.  Prediction is dangerous.  But here's one.

Prohibiting people of the same sex from marrying each other was just found unconstitutional.  The sun will rise in the east tomorrow, and the republic will survive.

* * * * * * * * *

Meanwhile, in the occasionally great state of Ohio, the Mike Wagner and Alan Johnson, writing in the Columbus Dispatch, report that Governor Ted and Attorney General Cordray now think DNA testing is a good idea.

When Arthur Swanson died in 2006, he left behind a faded box on the floor of his prison cell that contained paperwork showing how long he had begged for a DNA test to try to prove he didn't rob an Amish family.
The 54-year-old Mansfield man was never granted that test, but he might get his wish from the grave.
Gov. Ted Strickland and Attorney General Richard Cordray wrote today to prosecutors in seven criminal cases, including Swanson's, urging them to allow DNA testing that could confirm guilt or prove innocence. In each of those cases, DNA testing has been opposed by prosecutors and ultimately refused by judges.
The other six cases involve one man on Death Row, two inmates serving long sentences and three men who no longer are in prison but want to clear their names.
"I really think it's irrational not to take advantage of methods that could establish either guilt or innocence when those technologies are available to us," Strickland told The Dispatch. "I can think of no good argument why anyone would be denied DNA testing if, in fact, there is a reasonable or relevant opportunity to bring clarity to whether or not someone is guilty of a crime."

Glad to see they've come around.

Of course, given Ohio's balkanized system of juridical fiefdoms, they don't have the power to do more than urge the prosecutors to quit stonewalling.  Still it's something.

It was, after all, back in April that Ohio murdered Darryl Durr while he was asking for DNA testing "to bring clarity to whether or not [he was] guilty of a crime."

And, oh, while it was the county prosecutor who provided the formal opposition to the testing, by the time we were arguing it in federal court, it was representatives of General Cordray who led the fight against testing.  After all, why would we want to know?

* * * * * * * *

Today's good news may not be tomorrow's.

The future of same-sex marriage is not, alas, in the hands of Judge Walker.  It will rest, at least for the relatively short term, with the Roberts Court.  

Whatever Governor Ted and General Cordray may urge today, Darryl Durr is still dead.  And they aren't offering blanket support for DNA testing.  These are seven guys we're talking about.  And one of them is dead.

But these are, absolutely, developments to savor. 

So let us now praise those to whom we give power and who choose to use it wisely, and let us remember this day when some of them did.

-------------------

*The full paragraph from which Judge Walker lifted those words is worth reproducing here:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Barnette is the case in which the Court said that students cannot be compelled to recite the pledge of allegiance.  Justice Jackson explained.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

h/t Defrosting Cold Cases