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John Dean Questions Wisdom of Prop 8 Lawsuit- I Say “Full Steam Ahead!”
“Victorious warriors win first and then go to war while defeated warriors go to war first and then try to win.”- Sun-Tzu (pictured), The Art of War, c. 476.
John Dean, former White House Counsel under President Richard Nixon, believes that it is a bad idea to file a federal lawsuit to overturn Prop 8. He is joining the voices of the ACLU and many of the ‘leadership’ groups which lost the battle to keep Prop 8 from becoming the law of the California land. Mr. Dean, with all due respect, add your voice to the case by filing an amicus brief on behalf of us and support Ted Olson and David Boies, or get out of the way. Indeed, the lawyers for the ACLU and the HRC should both start getting those amici together for the court battle ahead and start submitting them.
When Thurgood Marshal took on the cases known today by the collective Brown v. Board of Education of Topeka, Kansas, et al., he did not know that he was going to win. He did not know if it was even possible to win those battles. He and the staff of the NAACP were caught between those who said to go slowly and wait for the country to accept blacks more and those who wanted to start firebombing government buildings right then and there.
Case law, precedent and the Constitution are all on our side in this case. Olson and Boies should include religious belief in their case since that is relevant. Jerry Brown should make it absolutely clear that his office will be the ones defending this case and that no one else can take it. But the time for sitting back and wishing and hoping that change will come is passed. It is time that we, as a whole, step up and fight this.
Recently, someone wrote about the idea that the LGBTI community is splitting apart. We were always split. The reality is that the older leadership has been told to hit the road and that we are not going to sit back and wait for our navel fuzz to turn into gold. The younger generation, myself included, are ready for this fight to happen.
Proposition 8 was intended to shut us up. It was intended to stop us from continuing forward. After all, “if the most liberal state in the country could ban marriage equality, then there was no hope.” They hold it up as proof that no state where it has been voted on has allowed marriage equality. “Every time the people vote on it, they vote to uphold ‘traditional’ marriage.” I’m sorry to tell them this, but California is not the most liberal state in the union, and they forget that Arizona voted against their constitutional amendment first before allowing it to go through after deceitful ads were run in that state.
When it comes to personal liberties, I live in the most liberal state in the union- Vermont. And I saw the effects of Prop 8 here. No one took any attempt to put this before the voters seriously. In fact, the specter of Prop 8 kept coming up. The National Organization for Marraige is struggling for money. They spent 1.5 million dollars on an ad campaign that ran for two nights in basic cable at 9:50 pm. Their Gathering Storm ad was so lampooned that it even made the Colbert Report. After Prop 8 passed, many businesses in California that supported the measure found themselves strapped for business in a slumping economy. Some may even have lost it all. One business found their customers drop by almost two-thirds. It became so bad that the groups attempted to block the release of their last fund raising roster.
Mr. Dean, either join up and fight along side us, or just remain silent. I would rather have you fight along side us, but in the end, either be part of us or at least don’t try to tell us to stop. . This is a risk, but it is a risk I would rather take than to simply sit, wish, hope and wait. We shall fight and will shall come out victorious. The battle to come shall not be easy, and it shall not be fraught with dangers, but it is said that the Celts have a love of battle, and that if we cannot fight on the battlefield, then the court room will do. We shall fight on and we shall win.
“Damn the torpedoes, full steam ahead!”- Admiral David Farragut, 1654.
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10 Responses to John Dean Questions Wisdom of Prop 8 Lawsuit- I Say “Full Steam Ahead!”
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Sei
May 31, 2009 at 1:04 pm
Baker v Nelson may not be as useful here. The problem is that Baker v. Nelson actually will work against the opposition in this case as it almost automatically refutes DOMA.
No, I haven’t mentioned this case. I’ve only been looking at the fact that this is being appealed to the Appealate Court and not the Supreme Court.
In truth, without knowing what either Olson or Boies is going to argue, nothing can be argued about taking this case to the Federal Court.
Robin Evans
May 31, 2009 at 1:50 pm
Exactly. DOMA changes the legal landscape, as do the recent decisions by state courts (including California’s).
All of that strengthens your original point, Sei — that this federal suit is a great addition to the overall process.
Plus… the case has given two very effective advocates for equality a platform to argue their case persuasively to the public even before the case ever gets into the courtroom in San Francisco.
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Robin Evans
May 31, 2009 at 12:00 pm
I’m not a lawyer, but I googled the baker case and found a comment discussing it on the WSJ Law blog. That’s a Minn. case that I’ve mentioned in some news stories and has probably been mentioned here on LGR. It’s bad precedent for Minnesota, and, indeed for other courts, but doesn’t affect (as I understand it) the appeal _process_ for this case in CA.
If the case were to make it to the SC, then the court might go back to that case as a reason to refuse to hear this one, but it doesn’t mean that the 9th Circuit wouldn’t hear it first. (The 9th might refuse to hear it and the trial court in SF might even throw it out because of Baker, but the _process_ would still be in place.) Olson and Boies certainly know about the case and — as experienced appellate litigators — will be prepared to argue why their case should be heard by the trial court and by the 9th. The California SC (in the original Marriage case, which is still controlling in most aspects) and the Iowa and Conn. SC’s have all given more amunition for arguing that Baker is flawed.
Settlement Loans
May 31, 2009 at 11:51 am
Really, who cares if gay people want to get married? On both sides of the issue money is being wasted that could go to SOOO much better use. This is getting pathetic on BOTH SIDES of the issue.
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Jay
May 31, 2009 at 11:07 am
It looks like it *will* be a one-shot argument, straight to the Supreme Court. This is because of Baker v. Nelson, a 1972 Supreme Court ruling that basically said that there was no federal issue in marriage equality. Their ruling is binding on lower federal courts. This means the 9th Circuit Court won’t even be able to hear the case.
Until I learned of Baker v. Nelson, I too was all for a ‘full steam ahead’ approach. It would be good to have the case heard in any court *other* than the supreme court, regardless of ruling. Because Baker v. Nelson denies the forum of lower courts, I’m beginning to think that a federal case could be problematic.
SteveS
May 31, 2009 at 10:24 am
Correct me if I’m wrong, but you can’t go directly to a Supreme Court. First it has to go to the 9th Circuit (the federal appeals court in California), the most liberal court in the nation.
It’s not a certainty that the Supreme Court would even take the appeal from the 9th Circuit, as there would be no split between circuits at that point (which is the general test for cert). If they do take it, Kennedy’s vote is up for grabs. He can definitely be swayed.
A one shot argument is also not really correct. We saw with Lawrence vs. Texas that the Supreme Court will overturn anti-gay opinions (Bowers vs. Hardwick). They did overturn their own previous anti-gay ruling.
To go before the Supreme Court is years down the road, by then we should have repealed Prop 8 at the ballot. We plan on putting it on the ballot in 2010. It is unlikely the Supreme Court would seek to intervene or rule in the next 14 months.
So I am all for them pushing ahead. Symbolically, it is a powerful statement for our side.