David Boies (speaking at Commonwealth Club 8/5) Makes Case Against Prop 8 in Chronicle

In the Insight section of yesterday's San Francisco Chronicle, lawyer David Boies made "The Case Against Prop 8" as "Unconstitutional Bias."

Boies, a prominent lawyer who represented former Vice President Al Gore in the post-election Bush v. Gore case and worked on many other high-profile cases, raised a lot of eyebrows when he teamed up with Republican former Solicitor General Theodore Olson to make the legal case against California's Proposition 8, which bans same-sex marriage in the state.

Calling anti-gay marriage laws "one of the most invidious of the state-sponsored discriminations against gays and lesbians," Boies' Chronicle article provides a legal primer on recent history in anti-gay legislation. He also explains the tactics the team headed by Boies and Olson took in their arguments before the court hearing their Prop. 8 lawsuit.

Read the entire Boies article, and come hear him speak in-person at The Commonwealth Club Thursday, August 5, at 6:00 p.m.

His Club appearance is part of the Geschke Family Series on the U.S. Constitution in the 21st Century.

Ideology and Ethnicity: The Supreme Court Debate

As the United States Senate undertakes its examination of President Obama's first Supreme Court nominee, issues of ethnicity and ideology on the Court are coming to the fore.

In her opening remarks yesterday to the Senate Judiciary committee considering her nomination to the Supreme Court, Judge Sonia Sotomayor said, "In the past month, many senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make law, it is to apply the law. And it is clear, I believe, that my record ... reflects my rigorous commitment to interpreting the Constitution according to its terms, interpreting statutes according to their terms and Congress's intent and hewing faithfully to precedents established by the Supreme Court and by my Circuit Court. In each case I have heard, I have applied the law to the facts at hand."

Sotomayor said the "process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged."

That, she noted, "is why I generally structure my opinions by setting out what the law requires and then explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our judicial system.”
Sotomayor argued that her "personal and professional experiences help [her] listen and understand, with the law always commanding the result in every case."

However, those who oppose her nomination have said Sotomayor has often allowed her rulings to be influenced by such factors as ethnicity and race. If confirmed, Sotomayor, a federal appellate judge, would be the first Hispanic and the third woman justice to sit on the nation's highest court.

Just recently the American Bar Association released a “well qualified rating” when reviewing Sotomayor’s record. In his July 9 talk to The Commonwealth Club, the ABA's head, H. Thomas Wells, weighed in on her nomination. He was asked to comment on whether a person’s ethnicity should matter in a candidacy for a judgeship. “Obviously that’s going to be an issue as is the whole question of empathy – the so-called empathy debate. The ABA does not rate candidates on empathy or ethnicity. We rate candidates only on professional competence, integrity and judicial temperament.”

In that same talk, when questioned about whether a candidate’s ideology should be a factor in his/her confirmation, Wells responded, “That’s been a debate, and it’s one of the tensions of the branches of government. It’s not that long ago that the senate judiciary committee didn’t hold hearings on judicial nominees. They simply went in and voted, and usually with no controversy. So it’s a relatively modern phenomenon for the hearings to take on unfortunately the level of spectacle that sometimes we have seen with our recent confirmation issues.”

When asked to evaluate the diversity of the upper rankings of the legal profession – especially lawyers who are partners and judges, Wells replied, “Number one, there has been progress, but not nearly enough progress. We have a long way to go.” He continued, “The legal profession, unfortunately, does not look like the society we are called upon on to serve. We don’t do as well as other professions in terms of promoting diversity. Where we have done the best at least in terms of numbers is with women -- at least half of the lawyers graduating from law schools now are female. … But those women are facing other challenges in terms of rising in the ranks. .. and we are not doing a good enough job in racial and ethnic diversity. It’s more difficult in dealing with lawyers with disabiltiies, sexual orientation and gender identity issues, because of the reluctance of these individuals to self identify -- particularly if the disability happens to be a mental disability. We’ve got a long way to go.”

However, Wells noted that the ABA held a national summit just last month on the next steps for diversity. The conclusions of this meeting are slated to be published in a national report some time early August.

To view the complete Wells program, see the embedded video below. The Wells event was part of The Commonwealth Club’s Charles Geschke Family Series on the U.S. Constitution in the 21st Century.



--Commonwealth Club Media and Public Relations Department

Prop 8 Decision: How to Strike Balance Between Majority Rules and Minority Rights

A 6-to-1 decision this week from the California Supreme Court ruled against the American Civil Liberties Union in Strauss v. Horton, recognizing same-sex partnerships with many, though not all, of the legal rights of marriage. The official court opinion upheld the validity of Proposition 8, which was adopted by California voters last November, including a new section (7.5 to Article I) in the California Constitution: “Only marriage between a man and a woman is valid or recognized in California.” That decision was hailed by opponents of same-sex marriage, such as ProtectMarriage.com, but it left supporters of gay marriage hanging as the next stage in their fight against Prop 8 begins. Equality California and the Courage Campaign are working to take the issue back to the ballot box – to repeal Prop 8 – while conducting statewide polls to gauge peoples’ attitudes on same-sex marriage.

Last year the American Civil Liberties Union, National Center for Lesbian Rights, and Lambda Legal filed a lawsuit challenging the validity of Proposition 8 in the California Supreme Court on behalf of six couples and Equality California. That legal challenge consists basically of three points:

1. Prop 8 is a revision, not an amendment, of the states' constitution, and therefore requires either a two-thirds vote of each house of the state legislature and a vote of the people, or a constitutional convention and a vote.
2. Prop 8 may violate the principal of trias politica, or separation of executive, legislative, and judiciary powers.
3. The “inalienable” right to marry cannot be determined by majority vote (unless, according to the attorney general, there is state interest in doing so).

Former California State Senator Sheila Kuehl was the first openly LGBT person elected to the California Legislature. She commented on the ruling, arguing that the court lost its way issuing this “slim and dishonest statement that same sex couples are not denied legal rights by denying them the ‘word’ marriage. The Court errs.”

Others agreed. The San Francisco police department alone reported arresting some 200 protesters, most of whom are members of One Struggle, One Fight, a civil rights coalition using civil disobedience.

Assemblyman (and gay rights activist) Tom Ammiano also decried the court's move as a reminder that “equality cannot be denied to any group and it is only a matter of time before justice prevails.”

ACLU head Anthony Romero indicated that the setback was particularly odd in light of “a recent Iowa Supreme Court ruling saying that it is unconstitutional to keep gay couples from marrying – and the passage of laws opening marriage to everyone by the Vermont and Maine legislatures.” Romero concluded that public support for marriage for same-sex couples is gaining ground, but California is being left behind. Romero spoke at The Commonwealth Club recently, highlighting the ACLU's challenges to the U.S. Patriot Act, litigation on the torture and abuse of detainees in U.S. custody, and challenges to the Bush administration’s illegal spying program. (Romero was the inaugural speaker in The Club's series on The U.S. Constitution in the 21st Century.) He is also the first openly gay man (and the first Hispanic) to serve as director of the ACLU. Romero and the ACLU argue that the Prop 8 debate is unique: The first time a ballot initiative has been used to change the California Constitution and strip away existing right for a particular group – a “suspect class.”

Antidiscrimination law is a cultural thread that defines progress in American society: A nation’s ongoing attempts to mitigate oppression of cultural minorities and compensate for systemic disadvantage, exploitation and injury. Tension between constitutionally protected civil liberties and the democratic mandate of majority rule also exploded during early deliberations that led to the Brown v. Board of Education decision, which was also fraught with conflict over whether popular opinion could deprive a minority of a constitutional right. Jusitice William Rehnquist’s court memos explored this key question of “Whether, in the long run, it is the majority who will determine what the constitutional rights of minorities are?”

As for the Fourth Estate, The Commonwealth Club also explored media coverage of Proposition 8 and its aftermath (Wednesday, April 15), highlighting the work of gay journalist/blogger Rex Wockner, Cynthia Laird, of the Bay Area Reporter, Equality Camp organizer Cathy Brooks, and Sandip Roy, from New America Now (KALW).

--By Andrew Shaw