Cal. Supreme Ct. will hear Prop 8 Challenge

The California Supreme Court granted (cert? discretionary review? not sure how the state's system works) review of three lawsuits challenging the gay marriage ban.

I know nothing more about California law than what I've read in conjunction with this issue, but it seems like the lawsuits have a decent legal argument. Essentially, they're arguing that this is not just an amendment to the constitution, but a change in a legal right that the constitution guaranteed. That's a subtle distinction, but an important one: ballot initiatives can accomplish the former, but not the latter.

The problem is this: even if it's a valid and sound legal argument, it will still be looked at as an attempt to thwart the "will of the people." Of course, that's pure crap -- Prop 8 was passed with 51% of the vote, and maybe 50% of the eligible voters voted in the election. So it's the will of a quarter of the people.

That attack is also crap in another way: the courts are supposed to protect vulnerable minorities from majoritarian excesses. If the 25% of the California population that's still bigoted can use a loophole to change the legal status of citizens, that's a problem. And the courts are supposed to prevent that from happening.

Imagine if this were the 1960s, and Prop 8 forbade interracial marriage. Some of the same people who are against gay marriage now were against (and probably still are, though under the radar) interracial marriage.

Of course, it took a court case to put an end to the de jure prohibition against interracial marriage (Loving v. Virginia). It will probably take another court case to end the modern version of that hatred.

The current SCOTUS isn't likely to look favorably on such a case, but luckily for the Prop 8 challenge, it won't get the chance to rule: the Prop 8 lawsuits are purely a matter of state law, and SCOTUS has no jurisdiction there (unless the challenge is that state law violates the federal constitution, but that argument isn't being made).

California's Supreme Court to Take Up Gay-Marriage Ban - WSJ.com

Kitchy monuments and mummified pets: SCOTUS takes on Summum

An interesting case from Utah. Pleasant Grove City has a park it says is dedicated to its "pioneer heritage." To celebrate that heritage, it has a number of privately-donated monuments. There's a log cabin, a Mormon religious artifact, a monument to firefighters who died on Sept. 11 (an Eagle Scout's public service project -- not sure how that's related to pioneer heritage, but whatever), and a monument to the Ten Commandments.

A weird (no really, it's weird) religious group called Summum wanted to put its own monument up in the park, right next to the 10 Commandments monument. Summum believes that before Moses came down the mountain with the Commandments, he received Seven Aphorisms from God. Apparently the Israelites weren't ready, so he hid the Aphorisms away and went to get the Commandments. But the Aphorisms have been passed down through history, and now they've appeared in Utah.

Anyway, the city, predictably, said "thanks, but no thanks" to that monument. Summum sued, and eventually won at the Court of Appeals. The city petitioned the Court for certiorari, and got it.

Oral arguments were a couple of days ago. You can read about them here and here.

The case boils down to this: if the Eagles monument and the Summum monument are private speech, then the city is engaging in viewpoint discrimination. If the city has “adopted” the monuments in the park, then the monuments are government speech — and government can say nearly whatever it wants. The problem with that is that what it’s saying here is “we think the 10 commandments are better than the seven aphorisms.” That constitutes an official statement of preference for one religion over another. That’s an establishment clause violation. There wasn’t an establishment question before the Court, but there was an establishment issue in earlier proceedings (it just wasn’t appealed). Procedurally it’s complicated, but I think the case will (should) get remanded for additional factfinding on the question whether the government speech (if that’s what it is) is itself a violation of the establishment clause.

Law Blog - WSJ.com : Seven Aphorisms and the First Amendment: A Look at Oral Arguments

Read more in this WSJ summary and this NYT editorial.

Dallas DA re-examines questionable convictions

I get the knee-jerk reaction, but why are prosecutors really mad at this guy? If you go from the premise that those who he clears with DNA evidence are actually innocent, then why in the world would prosecutors want to keep them in jail? Won't the public have more confidence in those that the DA convicts? What is wrong with this picture?

The Exonerator - WSJ.com