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Thoroughly Modern Bob – Coming to a Legislature Near You!

Paul Hatfield
PERSPECTIVE-Thoroughly Modern Millie was a Tony Award winner. State Senator Bob Hertzberg is rolling out his own sequel. The only problem is the production cost. Actually, the real problem is we will be the ones bankrolling it if Bob gets the green light. It is the most expensive tax scam concocted, more than California HSR. I’m talking…

Elite Girls School Has Brentwood Up in Arms … Over Traffic

John Schwada
INSIDE LA-Hairdresser Mikell Powell is walking her two dogs in Brentwood along Sunset Boulevard just across the street from the Archer School for Girls (photo left). “I’m opposed to anything that would make driving on Sunset here anymore hellish than it already is,” Powell says as her dogs tug on their leashes. No question: there’s a 1.2 mile…

Homeless LA: Safe Havens, Not Sidewalks

Mike Bonin
WHO WE ARE-In recent years, Los Angeles has seen more progress in combating homelessness than it ever has – yet the problem is still getting worse. Since 2011, the region has housed more than 23,000 people – a record number even by national standards. Yet homelessness is on the rise. Encampments are proliferating in our neighborhoods throughout…

Can LA Afford Another Olympics?

Jack Humphreville
LA WATCHDOG-Boston bailed on hosting the 2024 Olympics when Mayor Martin Walsh refused to sign a host city contract with the United States Olympic Committee (“USOC”) that would have put Beantown (and possibly the Commonwealth of Massachusetts) on the hook for any cost overruns associated with this 17 day extravaganza. But Walsh’s refusal to…

The Petty Hypocrisy of Mandatory Ethics Training

Bob Gelfand
GELFAND’S WORLD-As a member of a neighborhood council board, I am required by state law to do 2 hours of ethics training every 2 years. Elected officials such as members of the City Council are also required to take this training. The curious thing about our California ethics rules is that they prohibit the small stuff while looking the other way…

Los Angeles: Brown lives Matter!

Fred Mariscal
LATINO PERSPECTIVE-According to the Los Angeles Times, over the last five years in LA County, coroner's data show that Latinos, who make up about half of the county's population, also represent about half the people killed by police. Of the 23 people fatally shot by law enforcement in the county this year, 14 were Latino. The Times raises an…

Grading the LA Times: Mike Feuer’s B+ Leaves Something Out

Noel Weiss
OTHER VOICES-Reading the LA Times’ Report Card grade of B+ for City Attorney Mike Feuer, it was good to see at least a 'hat-tip' to the issue of whether the City Attorney really is the “attorney for the people.” But their conclusion seems to be that he is not, and I believe that is wrong. Exactly who does the City Attorney represent? Certainly, he…

Beverly Hills Pounds Final Nail in Bike Lanes Coffin

Mark Elliot
GETTING THERE FROM HERE-If you expected that Beverly Hills might install bicycle lanes on our segment of Santa Monica Boulevard when reconstructing it next year, you will be sorely disappointed to know that City Council just pounded the final nail into the bike lanes coffin. City Council split on the Blue Ribbon Committee recommendation to expand…

Helter Skelter, Murder and the Looming Race War

Tony Castro
TONY CASTRO’S LA-In one of our last conversations before his death earlier this year, author and prosecutor Vincent Bugliosi lamented that while he had successfully imprisoned Charles Manson, he feared he had only made a dent in the threat of an apocalyptic race war that the mass murderer had hoped to ignite. “Madness and mad men,” said Bugliosi,…

 

Reynolds Rap Video: Joey has hope for the pope in Philly.





You’re gonna cry! Kids sing to teacher with cancer

Scarrrry! The Flying Gun

Kid Stuff! Full of chuckles


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Supreme Timing: Why It’s Better for the Supremes to Hear DOMA before Prop 8

CIVIL RIGHTS - In a bout of incredibly serendipitous timing that nobody could have predicted, within the span of a week, both the First and Ninth Circuit Courts of Appeal have paved the way for the Massachusetts DOMA ( Defense of Marriage Act) cases  and the Prop 8 case to be heard at the US Supreme Court.   As always, there are a few caveats to keep in mind.  First, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives, which is defending DOMA on the wishes of House Republicans due to the Justice Department’s decision not to defend the law, could potentially ask that the 3-judge panel decision made by the First Circuit be granted a rehearing by what’s called an en banc panel made up of all the appellate court’s active judges.  

This en banc rehearing would essentially be another intermediate step at the First Circuit before the case could move to the Supreme Court.  

Such a move, however, would have a small chance of succeeding, given that the court is currently composed of five judges, making the 3-judge panel that struck down DOMA a clear majority to deny rehearing.  

And, of course, the Supreme Court has discretion in which cases it wishes to hear, which means that the justices do not necessarily have to take up any given appeal.  (In fact, less than 1 percent of cases are taken up by the high court each year.)
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When it comes to the DOMA cases, it is very unlikely the Supremes would not take up the appeals, given that a failure to do so would result in an act of Congress being declared unconstitutional and unenforceable in four states (and Puerto Rico!) while leaving it the law of the land in the other 46.  

On the other hand, it seems quite feasible the Court would decline to hear the Prop 8 case, given the Ninth Circuit’s clear efforts to limit its decisions to California only and not address any larger federal questions.

With all of these complexities in mind, it’s worth revisiting a question about which much ink (both digital and otherwise) has been spilled: is it better for marriage equality if the DOMA cases reach the Supreme Court first, or if the Prop 8 case does?  

Any answer to this question is necessarily rooted in the imprecise tea-leaves science of court-watching, but it is nevertheless a conversation worth having, especially considering the fact that the ground is now set for one or two high-profile marriage equality cases to make their way to the high court within the next year or so.

Writing yesterday in the Los Angeles Times, Douglas NeJaime of Loyola Law School argued, “Although Perry may provide more dramatic and compelling litigation, the DOMA cases present the Supreme Court with the best way forward.”  

And at Towleroad, the ever-insightful Ari Ezra Waldman lays out the arguments for why DOMA should come before Prop 8.  (I have to credit the many commenters on Waldman’s post for giving me some of the ideas that led to this series.)

I firmly agree with the argument that the best possible outcome for marriage equality at the Supreme Court in the next year or so is for the Court to consider the DOMA cases, uphold the lower courts’ rulings striking down the law, and decline to hear the challenge to the Ninth Circuit’s Prop 8 decision.

This is not to say that this outcome is the one that I truly wish for; on the contrary, in my heart I want the Supreme Court to take up the Prop 8 case and choose to side with Judge Vaughn Walker’s powerful and persuasive arguments that marriage discrimination is simply unacceptable under the U.S. Constitution.

But while I am an optimist at heart, I am a realist as well, and while it is important for all activists to be impatient, and to push the envelope, and to refuse to settle for less than everything they know is right and true, I think the most realistic scenario is almost as good for us as my imagined one.  

There are three reasons for this: 1) the different resonances that the DOMA case might have with the Court as opposed to the Prop 8 case, given the Supremes’ ideological makeup, 2) the distinct constitutional implications that striking down DOMA would have compared to striking down Prop 8 and 3) the wide-reaching and perhaps hitherto under-appreciated effect that a DOMA win would have for marriage equality, including in a post-Prop 8 California.

Starting tomorrow, I will explore one of these arguments in detail each day, and on Friday I will wrap up the series with a conclusion about the importance of the timing of the two cases.  

This entire series is meant to delve more deeply into the issues than a one-time post would allow and, I hope, will inspire a vigorous debate around the issue of timing.  

While these pieces represent my own opinion and my reasoning for holding that opinion, I hope that those who feel differently (or perhaps see flaws in the arguments I make) contribute to the discussion in the comments.  

As I said earlier in this introduction, predicting the actions of the Supreme Court is at best an art and not a science, but it is still an important exercise for our community, since it helps us look at the reality of the legal landscape in which we live rather than the one in which we might wish to live.  

The recent decisions of the First and Ninth Circuits mean we are living in an exciting time where matters of great importance are to be decided.  It helps if we go into them knowing where we stand.

(Jacob Combs are contributors to Courage Campaign Institute's Prop8TrialTracker.com,  where this piece was cross-posted. Look for parts 2-5 of this series here. -cw

Tags: Prop 8, DOMA, Supreme Court





CityWatch
Vol 10 Issue 47
Pub: June 12, 2012

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