Opinion L.A.

Observations and provocations
from The Times' Opinion staff

Category: Gay Marriage

Prop. 8: Double-edged diversity

WalkerShould the federal judge who struck down Proposition 8 have his ruling nullified because he's in a relationship with a man? The easy answer is no. This is just a variation on the argument that Judge Vaughn R. Walker should have recused himself from the case because he's gay. It's no more valid than the first argument.

But the conservatives challenging Walker's role in the case are, ironically, drawing on a theory of diversity more often heard from liberals. The argument goes something like this: Having a judge who is African American or a woman or a "wise Latina" changes the way justice is administered. Life experience, in this view, is a valuable credential.

Now apply this theory to a gay judge: If you argue that his or her life experiences play an important role in how they behave on the bench, you're playing into the hands of the conservatives who would disqualify Walker.

There are other arguments for diversifying the bench. One is the role model theory. Appointing or electing members of a minority group encourages members of that group to aspire to a judicial career. Then there is the the most traditional argument for diversity: redressing past discrimination.

But the "diversity does as diversity is" argument is the most beguiling. It's also the most problematic.

RELATED:

Respecting all marriages

Prop. 8: Who's fit to judge?

Blowback: Nothing defensible about DOMA

Defense of Marriage Act: Attack the law, not the lawyer

--Michael McGough

Photo: Vaughn R. Walker. Credit: Elaine Thompson / Associated Press

April 27 buzz: With same-sex marriage and tax increases, rethinking California's decision-makers

Most viewed and commented: "It's time to pass California tax hikes legislatively"

In his Wednesday column, Tim Rutten calls on Gov. Jerry Brown to ditch his "ill-advised campaign promise" to let voters decide on tax increases. Instead, Rutten would prefer that the governor forge his own path and do what's right for "the common good of all Californians." Referencing the Economist, which called our state "an experiment in extreme democracy gone wrong," Rutten suggests that perhaps it’s counterproductive to have voters make too many decisions about how our state should operate.

On our discussion board, frequent commenter GregMaragos weighed in with this counterpoint:

Rutten is the mouth piece for a failed political philosophy that is now drowning in its own excrement.  We have wall-to-wall liberals in Sacramento, so one cannot effectively blame conservatives.  Realizing the problem, Rutten turns, instinctively, to blaming "the system", which includes "the people" who voted for all the wacky, convoluted, idiotic ballot laws that have made such a hash of things.

One can reasonably argue that, perhaps, "the people" have made some bad laws, but one cannot turn to the supposed cause of a problem and, in the very next breath, declare it's supposedly corrupt opinions to be a means of validating a solution.  Rutten justifies ramming through tax increases with opinion polls of "the people" -- you know -- the same ones who made all those stupid laws.  Observe:

"In the meantime, a Times/USC Dornsife Poll released Sunday found that more than half the state's voters agree with Brown's approach to the fiscal crisis and want to balance the budget with a combination of painful spending cuts and moderate tax increases."

Most shared: Prop. 8: Who's fit to judge?

Just because Judge Vaughn R. Walker had a longtime male partner doesn't mean he was unfit to render his decision that Prop. 8 is unconstitutional. To the org ProtectMarriage, the editorial board writes:

The guidelines for judicial recusal can be unclear at times, but generally the bar is a high one. The rules call for judges to disqualify themselves when their impartiality might reasonably be questioned, but they are not supposed to back away from cases because of who they are — their ethnicity, gender, marital status, affluence, political leanings or, yes, sexual orientation. It's another matter if they are directly and materially affected, or if they have previously displayed a deep-seated bias on the issue at hand. A judge who drives a gas guzzler can still hear a lawsuit against an oil company, but not if his or her spouse works for the oil company.

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--Alexandra Le Tellier

DOMA: Wise counsel in same-sex marriage controversy

Paul Clement It would be a bit much to confer the title of "Profile in Courage" on Paul Clement, the superlawyer who resigned from his law firm after it caved to gay-rights activists. Clement, a former U.S. solicitor general and a master litigator, already has found gainful employment elsewhere and will continue to represent the House of Representatives in defending the Defense of Marriage Act.

But in leaving the firm of King & Spalding, Clement offered an eloquent statement about the responsibility of lawyers: "I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending  unpopular clients is what lawyers do." This is civics book stuff, but it's controversial with some gay activists. Evan Wolfson of Freedom to Marry referred to Clement as a "hired gun," an appellation that can describe any lawyer who doesn't work pro bono. (If Clement defended DOMA out of conviction, he would be abused even more.)

The law firm's critics raised a side issue: that the House Republicans' contract with King & Spalding prohibited lawyers at the firm from commenting on DOMA. If that's the case, the firm overreached. But it beggars belief that it dropped this hot potato  because of that provision rather than because of the efforts of Human Rights Campaign, the gay-rights organization, to "shame" the firm. 

DOMA is a regressive law. But both sides in any case are entitled to "hired guns."

RELATED:

Out front on gay rights

Respecting all marriages

Same-sex weddings, now

Blowback: Nothing defensible about DOMA

Defense of Marriage Act: Attack the law, not the lawyer

-- Michael McGough

Photo: Paul Clement in a photograph dated August 27, 2007. Credit: U.S. Department of Justice/MCT

April 25 buzz: Sugar detox, same-sex marriage, online poker

Most viewed: 40 days, 40 nights, no sugar

As we continue indulging in chocolate bunnies and marshmallow Peeps in the name of Easter, so too do people keep coming to Diana Wagman’s Friday Op-Ed article about how spirituality helped her give up sugar for Lent -– even though she’s not even Catholic.

Most commented: Blowback: Nothing defensible about DOMA

On Friday, Maya Rupert, the federal policy director for the National Center for Lesbian Rights, wrote a rebuttal to our editorial Defense of Marriage Act: Attack the law, not the lawyer. "King & Spalding had an opportunity to use its considerable power to further justice, not perpetuate discrimination," she writes. "In declining to do so, it acted in a way that is indefensible." Predictably, there's blowback to the Blowback feature.

Most shared: The feds fold online poker

"Just like Prohibition, this clampdown, which took down the Big 3 of the American online poker market, cannot and will not stand," writes Marc Cooper, author of "The Last Honest Place in America: Paradise and Perdition in the New Las Vegas." He continues: "Either the poker community will find one more workaround or, heaven forbid, the U.S. government will see the light and use this incident to finally get on with legalizing -- and cashing in on -- a mainstream pastime much more popular than either political party."

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--Alexandra Le Tellier

Blowback: Nothing defensible about DOMA

Maya Rupert responds to our editorial, "Defense of Marriage Act: Attack the law, not the lawyer." She is the federal policy director for the National Center for Lesbian Rights. Click here for more information on Blowback, our forum for readers to respond, at length, to Times articles.

DOMA In its April 21 editorial, The Times argues in favor of Paul Clement's decision to defend Section 3 of the  Defense of Marriage Act, known as DOMA, which discriminates against legally married same-sex couples by prohibiting the federal government from recognizing their marriages for any purpose. In the editorial, The Times  takes the curious step of extending the familiar maxim that "every person deserves a lawyer" to the more expansive "every position deserves a lawyer." The first is a fundamental right upon which we base our criminal justice system. The other is a fiction that mistakenly seeks to insulate a shortsighted law firm from criticism for its decision to defend a discriminatory law. 

As the editorial correctly points out, there is an honorable tradition of lawyers defending unpopular and controversial clients. Civil liberties organizations, for example, have repeatedly, and admirably, defended plaintiffs whose views they abhor (such as members of the Ku Klux Klan), in order to protect cherished principles like freedom of speech and assembly. In this case, there is no greater good, no cherished larger issue at stake; the only issue contested  is discrimination. There is no venerable tradition of lawyers defending laws that single out certain groups for discrimination.

DOMA forces the federal government to discriminate against same-sex married couples and to treat their families as unworthy of protection or respect. A law that serves only to designate some families as second-class citizens has no principled defense. Defending DOMA simply prolongs the harm to same-sex couples and their children. There is no countervailing good.  

A private lawyer is under no obligation -- from a state bar, pursuant to ethical rules, or out of respect for the adversarial process -- to defend an indefensible law. Those who choose to defend such a law do so at the peril of their reputations as fair-minded and just advocates. Clement has made a decision not just to stand on the wrong side of history but to lead the charge on that side and, sadly, to bring his law firm, King & Spalding, along with him. He is free to do so, but we should not pretend that decision represents a magnanimous fidelity to the adversarial process or to justice.

Throughout history, discriminatory laws have weakened our country's commitment to equality and fairness. Those laws have generally remained in effect until judges, lawyers and the public took a stand against them. And those powerful statements -- that people will no longer use their power or profession to foster discrimination and harm -- forced those viewpoints into the far fringes where they belong. There are moments in history where people are called upon to make such statements. This is one of those moments. King & Spalding had an opportunity to use its considerable power to further justice, not perpetuate discrimination. In declining to do so, it acted in a way that is indefensible.

--Maya Rupert

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Blowback archive

Photo: Same-sex couple Nowlin Haltom, left, and Michael McKeon hold a sign calling for the repeal of the Defense of Marriage Act outside the county clerk's office in Los Angeles in February. Credit: Robyn Beck / AFP / Getty Images

Ending workplace discrimination, with ENDA

The repeal of "Don't Ask, Don't Tell" creates an anomalous situation in which the government holds the military to a higher standard than it does the civilian economy.

That would change with enactment by Congress of the Employment Nondiscrimination Act, or ENDA, which would ban workplace discrimination on the basis of sexual orientation and gender identity.

The bill was recently reintroduced.

Given changing attitudes toward homosexuality, this would seem to be a no-brainer. Even opponents of same-sex marriage oppose discrimination. Or do they?

-- Michael McGough

Catholics and gays: Closer than you think

A new study by the Public Religion Research Institute  is titled: "Catholic Attitudes on Gay and Lesbian Issues."

Among the findings:


Catholics are more supportive of legal recognition of same-sex relationships than members of any other Christian tradition and Americans overall. Nearly three-quarters of Catholics favor either allowing gay and lesbian people to marry (43%) or allowing them to form civil unions (31%). Only 22% of Catholics say there should be no legal recognition of a gay couple's relationship.

When same-sex marriage is defined explicitly as a civil marriage, support is dramatically higher among Catholics. If marriage for gay couples is defined as a civil marriage "like you get at city hall," Catholic support for allowing gay couples to marry increases by 28 points, from 43% to 71%.

Catholics overwhelmingly reject the idea that sexual orientation can be changed. Nearly 7 in 10 (69%) disagree that homosexual orientation can be changed. Fewer than 1 in 4 (23%) believe that it can be changed.

A majority of Catholics (56%) believe that sexual relations between two adults of the same gender [are] not a sin. Among the general population, less than half (46%) believe it is not a sin.

 You have to read the report to get the nuances, but these points suggest that many Catholics are out of step with the hierarchy on these issues -- or vice versa.

--Michael McGough

March 21, 2011 buzz: 'Outsourced,' Libya intervention, same-sex marriage

Most viewed: Don't hate 'Outsourced'  

Is NBC's "Outsourced" one of your guilty pleasures? If so, Geetika Tandon Lizardi, one of the show's writers, says to stop feeling so guilty. In an Op-Ed about the sitcom that takes place at an Indian call center, she writes,  "My greatest concern is that 'Outsourced' is being judged superficially — on the color of its skin, so to speak, instead of the content of its characters." She continues:

"Outsourced" has the potential to celebrate our cultural quirks, to build bridges between communities and perhaps, most important, to prove that there is a viable alternative to the "one brown face in a white ensemble" model of "diversity."

Most commented: Libya: It's not our fight

Edward N. Luttwak, a senior associate at the Center for Strategic and International Studies, argues that the U.S. shouldn't have intervened in Libya and that it will be depicted as aggressive, predatory and anti-Muslim. Several readers wrote that they agree with Luttwak, including "launchme520."

Reader comment:

"Nobel Peace prince Obama launched his liberation of the good people of Libya with his own shock-and-awe bombing campaign appropriately on the eighth anniversary of Bush's illegal invasion of Iraq. This tyrannical intervention is so naked, so brazen in its hubris that whatever shred of goodwill America had left is completely gone. America is officially the most murderous, anti-democratic, terrorist nation the world has ever known.

And get this, on the very same day of this unconstitutional act of war, ethically-challenged Charlie Rangel reintroduced his National Service "Draft" bill. Do they know a 3rd world war is what they are creating?"

Most shared: Respecting all marriages

In an editorial about the proposed Respect for Marriage Act, the editorial board points out these stats and suggests some presidential leadership:

A recent Pew poll found that 45% of adults now support same-sex marriage, compared to 46% who oppose it. The same survey noted that opposition to same-sex marriage has declined by 19 percentage points since 1996, when 65% opposed it and only 27% supported it. As for DOMA, a poll this month by the Human Rights Campaign, a gay-rights organization, found that 51% of respondents opposed the law, while 34% supported it.

--Alexandra Le Tellier

LAST WEEK:

March 18, 2011 buzz: In L.A., paying for carpool lanes; saving puppies

March 17, 2011 buzz: Tsunami threat; Left-seeming NPR

March 16, 2011 buzz: Sex, lies and faith

March 15, 2011 buzz: Exploiting Japan's tragedy? Conflict resolution between Israel and Palestine?

March 14, 2011 buzz: Preparing for the worst-case scenario

Marriage wars in a different arena

Several members of Congress -- including California Democratic Sen. Dianne Feinstein -- have introduced legislation to repeal the Defense of Marriage Act. The  Obama administration made news recently when it said it wouldn't defend DOMA, as it's known, against court challenges. (The law defines marriage for federal purposes as the union of one man and one woman and says that states are not obliged to recognize same-sex marriages from other states.)

But lawsuits over DOMA would be moot if Congress enacted the Respect for Marriage Act (a clever title). And we'd all be spared whining  by conservatives about "unelected judges" deciding social policy.

Winning enactment of the Respect for Marriage Act might seem a quixotic effort, but the same could be said a few years ago about the repeal by Congress of "don't ask, don't tell." I wouldn't rule out judicial action on this subject, but it's encouraging that activists are pressing their case with the legislative branch of government.

RELATED:

Out front on gay rights

Reader opinion: Debating DOMA

Gay rights, Barbara Bush and David Kato

--Michael McGough

Feb. 28, 2011 buzz: Prop. 8 and pension pain in California

Most viewed and commented:

Yes, of course, California's economy took a drastic nosedive. But regardless, "Many state and local government employees have been promised pensions that the public couldn't have afforded even had there been no crash," writes the editorial board in Day of reckoning on pensions.

There's nothing inherently wrong with generous pension plans. Pensions, after all, are just a form of compensation that's paid after retirement, not before. The problem, particularly for local governments, is that the plans are proving to be far costlier than officials anticipated or prepared for. By their own reckoning, the 10 largest public pension systems in California had a $240-billion shortfall in 2010.

According to the Little Hoover Commission, a bipartisan, independent agency, without significant changes or a miracle, "pension costs will crush government."

Trending on Facebook and Twitter:

In Same-sex weddings, now, the editorial board advocates for, um, same-sex weddings now.

Every day that the case drags on, gay and lesbian couples who would like to marry are being deprived of their civil rights. That's not our wording; the federal trial judge decided that issue, at least for now. The denial of constitutional rights, even temporarily, is a deplorable situation that must meet high legal standards to be allowed to continue. In our view, those conditions have not been met.

--Alexandra Le Tellier

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