A Risky Proposal — Perry vs. Schwarzenegger, the federal case against California’s Proposition 8, goes to trial tomorrow. Margaret Talbot of The New Yorker looks at the perils and possibilities of taking marriage equality to the Supreme Court.
On January 11th, a remarkable legal case opens in a San Francisco courtroom—on its way, it seems almost certain, to the Supreme Court. Perry v. Schwarzenegger challenges the constitutionality of Proposition 8, the California referendum that, in November, 2008, overturned a state Supreme Court decision allowing same-sex couples to marry. Its lead lawyers are unlikely allies: Theodore B. Olson, the former solicitor general under President George W. Bush, and a prominent conservative; and David Boies, the Democratic trial lawyer who was his opposing counsel in Bush v. Gore. The two are mounting an ambitious case that pointedly circumvents the incremental, narrowly crafted legal gambits and the careful state-by-state strategy that leading gay-rights organizations have championed in the fight for marriage equality. The Olson-Boies team hopes for a ruling that will transform the legal and social landscape nationwide, something on the order of Brown v. Board of Education, in 1954, or Loving v. Virginia, the landmark 1967 Supreme Court ruling that invalidated laws prohibiting interracial marriage.
Olson’s interest in this case has puzzled quite a few people. What’s in it for him? Is he sincere? Does he really think he can sway the current Court? But when I spoke with Olson, who is sixty-nine, in early December, he sounded confident and impassioned; the case clearly fascinated him both as an intellectual challenge and as a way to make history. “The Loving case was forty-two years ago,” he said, perched on the edge of his chair in the law offices of Gibson, Dunn & Crutcher, in Washington, D.C., where he is a partner. “It’s inconceivable to us these days to say that a couple of a different racial background can’t get married.” Olson wore a brightly striped shirt and a paisley tie, without a jacket; there was something folksy in his speech, which reminded me that he’s a Westerner, who grew up and was educated in Northern California. He said, “Separate is not equal. Civil unions and domestic partnerships are not the same as marriage. We’re not inventing any new right, or creating a new right, or asking the courts to recognize a new right. The Supreme Court has said over and over and over again that marriage is a fundamental right, and although our opponents say, ‘Well, that’s always been involving a man and a woman,’ when the Supreme Court has talked about it they’ve said it’s an associational right, it’s a liberty right, it’s a privacy right, and it’s an expression of your identity, which is all wrapped up in the Constitution.” The Justices of the Supreme Court, Olson said, “are individuals who will consider this seriously, and give it good attention,” and he was optimistic that he could persuade them. (The losing side in San Francisco will likely appeal to the Ninth Circuit, and from there the case could proceed to the Supreme Court.) Olson’s self-assurance has a sound basis: he has argued fifty-six cases before the high court—he was one of the busiest lawyers before the Supreme Court bench last year—and prevailed in forty-four of them. Justices Sandra Day O’Connor and Anthony Kennedy attended his wedding three years ago, in Napa. Olson said that he wanted the gay-marriage case to be a “teaching opportunity, so people will listen to us talk about the importance of treating people with dignity and respect and equality and affection and love and to stop discriminating against people on the basis of sexual orientation.”
More below the fold.
Tempest in a Tea Party — Mark Leibovich examines the Florida Republican primary battle between Gov. Charlie Crist and Marco Rubio.
It is not uncommon for a party out of power to undergo an identity crisis and an internal bloodletting, and it is Crist’s bad luck that his race in 2010 fits the frame of a philosophical debate that has been fulminating in the Republican Party for several months. The race, and the national debate, pits the governing pragmatists against the ideological purists. The purists say that a Republican revival depends on hewing to conservative ideas, resisting compromise and generally taking a dim view of government. Tea Party rallies are filled with such purists, whose populist icons — Sarah Palin, Rush Limbaugh, Fox News’s Glenn Beck — tend to be unburdened by the pressures of governing through a recession.
Not long ago, Jim DeMint, a Republican senator from South Carolina, summed up the purity side this way: “I would rather have 30 Republicans in the Senate who really believe in principles of limited government, free markets, free people, than to have 60 that don’t have a set of beliefs.” And when I asked Rubio recently which current senator he most admires, he said DeMint.
Crist represents the governing pragmatist who was once seen as a winner who could reclaim the political center for Republicans. He was a popular governor with crossover appeal among Democrats and independents. For a time, Arnold Schwarzenegger fit this mold in California. So did, to a degree, Mitt Romney, when he was the governor of Massachusetts, and Mike Huckabee in Arkansas, though each worked to present himself as ideologically pure in his presidential run.
In recent decades, both parties have looked to governors with moderate appeal to deliver them from rough patches (see Bill Clinton for the Democrats in 1992 or George W. Bush for the Republicans in 2000). But especially when the economy goes south, governors can be sunk by their can-do bona fides and their executive distaste for ideological zeal. It is almost impossible to scour the record of a governor presiding in a weak economy without finding some nod to pragmatism.
Yet the presumed purity of Republican primary voters dictates that candidates emphasize their ideological fitness. “I am the true conservative in this race,” Crist has been doggedly reminding people. He says he is a pro-gun, anti-abortion, small-government conservative who worships Ronald Reagan. He says he is against gay marriage, frugal (he pays off his single credit card every month) and despised by criminals (he once proposed that chain gangs be reinstituted, earning him the nickname Chain Gang Charlie).
None of this has made Crist any less of a target to conservatives who view him as a coveted Florida marlin to reel in. (Or if you prefer hunting analogies, the prized RINO.) Nor has it thwarted Rubio’s growing conservative cachet. Rubio, who has been dominating straw polls of conservative advocates across Florida while pulling even in real ones, is Hispanic, uses Twitter and listens to Snoop Dogg — not your grandmother’s Republican, in other words.
“There are people who believe the way to be more successful as Republicans is to be more like Democrats,” Rubio told me early last month, essentially distilling his case against Crist, whom he keeps describing backhandedly as “a really nice, pleasant guy.” “And the people who believe we need to be more like Democrats will vote for Charlie Crist.” There is also the more stylistic question of whether Crist’s conciliatory approach fits with the basic tenor of an impatient opposition party. He may not be angry enough to win a Republican primary this year.
D’oh — Mitch Albom’s moment of immortality.
And I went, “Uumph.”
And the director said, “Great. One more.”
And I went, “Oomph.”
“Great. Let’s try again.”
This was in Los Angeles, months ago, en route to my biggest moment of fame on the planet Earth and that is, of course, a cameo on “The Simpsons.”
“Great. Again, please.”
My “motivation” (as actors say) was being tossed out of a door and landing splat on the sidewalk. It wasn’t just my motivation. It was my actual part. Although I hadn’t done it. Because they hadn’t drawn it. The way “The Simpsons” works is you do your lines and then they draw the cartoon, so if you are truly pathetic they can at least draw you as pathetic and viewers don’t sit there clucking, “This guy can’t act.”
Which I can’t.
“Great. Let’s do another.”
This all started when “The Simpsons” writers decided to pen a show about Abe (Homer’s father) sharing his memoirs with a young journalist. The plot was reminiscent of my book “Tuesdays With Morrie,” and they even called the episode “Thursdays With Abie” and they wrote me into the show because, I don’t know, maybe they thought they’d get sued, which I wouldn’t have done because, frankly, I don’t know how to sue and anyhow, why sue “The Simpsons”? I like the Simpsons, the cartoon group, not, you know, O.J.’s version.
In the episode, I show up to try to get Abe to speak to me and he says “Never heard of you” and things get cartoon ugly and I am menacingly approached by a gang of senior citizens and six hours later, when they reach me, I am tossed into the street.
Which is why I was making those sounds.
“Great. And another …”
Doonesbury — WHAT?