Ben and Jerry take a stand against unlimited campaign spending (alongside Justice Ginsberg)

In rethinking the Citizens United decision, Justice Ruth Bader Ginsberg has admitted that her vote was a mistake. Like many of us, the long-serving justice who has penned over 200 opinions on issues from abortion rights to copyright law, is increasingly worried about the rise of super PACs and the overwhelming role money is playing in this election season.

The issue has come to a head regarding the action of the Montana Supreme Court to uphold a state ban on corporate campaign spending, in seeming violation of Citizens United. While the Supreme Court issued a stay to the Montana law the right to fix wrong precedents is reserved for the Supreme Court itself, Justice Ginsberg and Justice Breyer penned a joint statement questioning their previous decision:

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United, … make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’  A petition [to hear the case] will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.

According to the Supreme Court, the only government interest that can be used to justify a limit on corporate spending against First Amendment rights, is the prevention of corruption, or the appearance of corruption.

This was Justice Kennedy’s argument in the original opinion: “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” And furthermore, “[t]he appearance of influence or access [coming from unlimited corporate spending] will not cause the electorate to lose faith in our democracy.”

It is a weak one, and in the statement last week, Justices Ginsberg and Breyer are starting to point to its essential fallacy.

And if two Supreme Court justices weren’t influential enough, Ben Cohen and Jerry Greenfield (of Ben and Jerry’s) have also demanded that we “get the dough out” of politics. Citizens United (in it’s current form) can’t have long now. In the mean time, we get to enjoy the who-has-the-richest-donors race for the Republican presidential candidate.

Related articles

• Occupy the Super PACs (slate.com)
• Citizens United is 2 — But Who Isn’t Buying In? (legallyeasy.rocketlawyer.com)
• The Road to Citizens United (legallyeasy.rocketlawyer.com)

Will Europeans soon have the right to delete information about themselves from the Internet? Forever?

After writing about the proposed “right to be forgotten” in Europe, the conversation about privacy, reputation and the Internet has only accelerated.

Here’s a taste of what we’re reading at the moment:

Google must remember our right to be forgotten, Richard Falkenrath, FT.com:

I learnt to appreciate the power of electronic data integration as a White House counterterrorism aide, working to enhance government electronic surveillance powers. But Google, by gaining the consent of its users in the form of a quick tick, has secured the power to build an electronic surveillance apparatus that far exceeds anything the Bush administration tried to do.

A right to be forgotten would make the counterterrorism mission harder. My support for it, however, comes from my recent experience as a parent.

Read more

The Information Welfare State, Evgeny Morozov, Slate.com:

“The right to be forgotten” won’t do much to mitigate debacles like Google Buzz and Path, let alone regulate Anonymous. While it may limit the distribution of inadvertently released information, it won’t console those users whose reputation has already been damaged by the first instance of publication. Sometimes, a quick glance at the compromising information is enough; “the right to be forgotten” may force such information to disappear from the Internet—but it won’t remove the memory from the minds of one’s friends or business partners.

Here is a more elegant solution: We need a mandatory insurance scheme for online disasters. For what is an accidental disclosure of information if not an online disaster—a ferocious man-made information tsunami that can destroy one’s reputation the way a real tsunami can destroy one’s home?

Read more

The Right to Be Forgotten, Jeffrey Rosen, Stanford Law Review:

In theory, the right to be forgotten addresses an urgent problem in the digital age: it is very hard to escape your past on the Internet now that every photo, status update, and tweet lives forever in the cloud. But Europeans and Americans have diametrically opposed approaches to the problem. In Europe, the intellectual roots of the right to be forgotten can be found in French law, which recognizesle droit à l’oubli—or the “right of oblivion”—a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration. In America, by contrast, publication of someone’s criminal history is protected by the First Amendment, leading Wikipedia to resist the efforts by two Germans convicted of murdering a famous actor to remove their criminal history from the actor’s Wikipedia page.

Read more

Stay tuned for further discussion of this issue. Take a listen to our podcast for the analysis of  Brooklyn Law School professor Derek Bambauer.

Related articles

• Episode 57: Internet Privacy and the “Right to be Forgotten” (legallyeasy.rocketlawyer.com)
• Should There be a “Right to be Forgotten” on the Internet? (legallyeasy.rocketlawyer.com)

President Kennedy celebrates signing Executive Order 10925 in 1961 to establish the Committee on Equal Employment Opportunity

Racial policies in college admissions are set to face the judgement of the Supreme Court. Together with health care, immigration and political redistricting also under review, this is certainly shaping up to be a big year for politics and the Supreme Court.

As we reported at the beginning of this Supreme Court term, affirmative action is a sensitive subject with roots in the Civil Rights era: Kennedy’s 1961 Committee on Equal Employment Opportunity and the 1964 Civil Rights Act.

Challenging the original intention of the laws, the complaint featured two white students turned down by the University of Texas — one of whom has since dropped out of the case. The central accusation is that higher education institutions wrongly use race to favor minorities at the expense of other Americans.

The University of Texas currently uses a two-pronged approach to admissions.

First: the Top Ten Percent rule, where incoming freshmen are admitted because they are among the top 10% of their high school classes. Plaintiff Abigail Fisher did not fall into this category. Second: University of Texas resumed considering race, after a 2003 Supreme Court ruling upholding affirmative actions admissions, starting with its 2005 entering class.

At issue, therefore, is what happens to the places not filled by the Top Ten Percent.

The University says they do not use quotas (already rejected by the Supreme Court), but instead favors a broader approach to enrollment, with an eye towards diversity of the student body. Implicitly, the suggestion is that affirmative action is required to achieve this diversity.

From the Associated Press:

Before adding race back into the mix, Texas’ student body was 21 percent African-American and Hispanic, according to court papers. By 2007, the year before Fisher filed her lawsuit, African-Americans and Hispanics accounted for more than a quarter of the entering freshman class.

Not so says Fisher. Her suit claims that the Top Ten Percent law was working to increase diversity, and that minority enrollment was higher than it had been under the earlier race-conscious system.

The Project on Fair Representation, opposing the use of race in public policy, has helped the Fisher pay her legal bills:

“This case presents the Court with an opportunity to clarify the boundaries of race preferences in higher education or even reconsider whether race should be permitted at all under the Constitution’s guarantee of equal protection,” said Edward Blum, the group’s director.

An opportunity indeed. Much has changed since 2003 when the court last looked at affirmative action in the 5-4 Grutter vs. Bollinger decision. For one, Justice Alito is more
hostile to affirmative action than his predecessor (and majority author) Justice O’Conner. In addition, the left-leaning Justice Kagan will not participate in the case as a result of the Justice Department’s involvement in the lower courts while she served as the Obama administration’s solicitor general.

With a more conservative court,  a reversal of the 2003 decision is not unlikely. On top of this, a precedent moving in the same direction is the 2007 5-4 ruling prohibiting public schools from assigning students based on race to achieve classroom diversity, in Meredith v. Jefferson County Board of Education.

Affirmative action programs across the nation are at stake in this case. As a result of this, and the growing inequality in the country, we expect further discussion of affirmative action, racial diversity, the melting-pot approach to assimilation and how much we have (or have not) achieved as a society since 1964.

Related articles

• High Court to Hear College Affirmative-Action Case (online.wsj.com)
• Justices will review racial preference for college (hosted.ap.org)
• Affirmative Action — Could Justice Alito’s Vote Change the Game? (abcnews.go.com)
• First Monday in October Brings Epic Legal Cases to Supreme Court (legallyeasy.rocketlawyer.com)

How far we've come from private journals you could just toss onto the fire when you didn't want the information around anymore...

Two podcasts this week? Yes, indeed, we couldn’t resist talking about the big happenings in politics and online privacy.

This episode we focus on the ongoing issue of how to balance and regulate free speech and privacy on the Internet. Specifically, we focus on the debate in Europe over the “right to be forgetten”, and we welcome guest, Professor Derek Bambauer from Brooklyn Law School to talk to us about one of his central interests: censorship.

We start with politics. It seems that Ron Paul might just win in Maine – really? Yes, and Romney is trailing Santorum in the fight for Michigan.  Charley then explains why Michigan is such an interesting race — from the Tea Party constituents, to the Clint Eastwood Superbowl advert  and the enduring importance of  manufacturing and the automobile industry to Michigan and American confidence.  The success of the automakers, who are posting record profits now, following the government “bailout,” leads us to wonder how the Republican candidates will square the success of government intervention with their opposition to same?   Will the front runners, and their backers, focus on the substantive issues and arguments? We’ll just have to wait and see.

Then, in honor of Valentine’s day just past, we shout out to our article, Divide and Conquer: Do Love and Business Mix? From the Wynns to the McCourts, it’s an interesting read about businesses too close to home and heart.

Our real focus this week, however, is the conceptual “right to be forgotten” on the Internet. We set the table, and are then delighted to be joined by Professor Derek Bambauer. Having written about SOPA, and currently working on a piece for the Chicago Law Review — Orwell’s Armchair — about American censorship, Derek was a great guest.

We talk about Orwell’s “memory holes”, the burden of compliance on private companies, and how the EU is different from the US in its approach to privacy, for regular citizens and public figures. We also wonder how workable this particular proposal will be in a global setting, and more generally discuss how separate jurisdictions are still working out the policing of a borderless entity.

In the Rocket Docket, we give you our thoughts on the free speech : privacy balancing act.

Take a listen and tell us what you think.

Related articles

• Should There be a “Right to be Forgotten” on the Internet? (legallyeasy.rocketlawyer.com)
• Divide and Conquer: Do Love and Business Mix? (legallyeasy.rocketlawyer.com)

Is EU Justice Commissioner Viviane Reding asking Google to censor the web?

Being forgotten is not usually something people wish for. At the moment, however, a debate is raging in Europe about the right of citizens to be forgotten when it comes to information stored on the Internet.

Like SOPA and PIPA earlier this year, new provisions in the EU’s Data Protection Directive are raising questions about speech, privacy, censorship and what it means to publish on the web.

So, what does it say?

Article 17 of the Data Protection Directive proposes to give EU residents the right to control and delete facts about themselves that were once voluntarily published on the Internet. This covers anything from the personal information given to credit card companies, to that published on social media sites, and then everything in between.

A spokesman for the European Justice Commissioner Viviane Reding goes on to explain that “these rules are particularly aimed at young people as they are not always as aware as they could be about the consequence of putting photos and other information on social network websites, or about the various privacy settings available.”

In other words, the rule has been designed, in part, to help young people manage their reputation. It plays on the assumption that twenty-something job seeker does not want to, and should not, be haunted by less-than-worthy pictures taken of them when they were 16.

A wide-ranging attempt to “protect” the privacy of European citizens, the EU is even looking to search engines for unprecedented levels of cooperation.

From the preamble:

To strengthen the ‘right to be forgotten’ in the online environment, the right to erasure should also be extended in such a way that any publicly available copies or replications in websites and search engines should also be deleted by the controller who has made the information public.

While to some this may seem to be a worthy and consumer-friendly undertaking, critics are using the language of censorship and pointing to the impact on speech.

Writing for Time, Jerry Brito speaks about “personal memory holes” a la 1984 and the inverted interaction between privacy and free speech:

The new law would flip the traditional understanding of privacy as an exception to free speech. What this means is that if we treat free expression as the more important value, then one has to prove a harmful violation of privacy before the speaker can be silenced. Under the proposed law, however, it’s the speaker who must show that his speech is a “legitimate” exception to a claim of privacy. That is, the burden of proof is switched so that speakers are the ones who would have to justify their speech.

The wording of the law explains that the data can be saved only where it is “necessary for
historical, statistical and scientific research purposes, for exercising the right of freedom of expression, when required by law, or where there is a reason to restrict the processing of the data instead of erasing them.”

So, back to the point Jerry Brito made: publishers would be forced to comply unless they can show a “legitimate” reason not too. The burden of compliance looms. And this will not be restricted to Europe. These rules will apply to U.S. websites as well, in so far as they are accessed from Europe. Think Facebook, Google et. al.

Another outspoken critic, Jane Yakowitz of Brooklyn Law School writes about the “draconian fines” outlined in Article 79. In this provision, EU authorities will collect 1% of an enterprise’s annual revenue in fines for failure to comply with the right to be forgotten. On top of that, Violation of other data rules could lead to fines of up to a million euros or 2% of a company’s global revenue.

All this brings me to two (rhetorical?) questions…

First:  how is this different from SOPA/PIPA?

Is removing content from the web in the name of privacy censorship? As much as doing so in the name of stopping online piracy? How can we balance the concepts of free speech and to privacy in the Internet age?

And this leads me on to my second question: Is there a right to be forgotten when information was given and published freely, just because it was published on the Internet?

If you publish something in print — in a book or magazine, you cannot take it back. Why should the Internet be treated any differently?

If they ever did, people no longer see Internet publishing in the same way as traditional publishing. The Internet is a world where writing has become disposable: easy to submit and easy to consume.  “Speech” is published immediately and without a second thought. And so, according to its users, the Internet is different and should thus be treated accordingly.

Whether or not this difference in production should change the way the final product is treated is the philosophical question at the heart of the debate. But it is the censorship argument that will make or break this directive — as it broke SOPA and PIPA. I would like think more about this angle, but for now, while I understand the free-speech arguments put forward, the definition of censorship is too often seen starkly in black and white. In this new age, discussions about speech, privacy, information publication and their regulation need to catch up.

Related articles

• What Europe’s ‘Right to Be Forgotten’ Has in Common with SOPA (techland.time.com)
• Digital ‘right to be forgotten’ will be made EU law (telegraph.co.uk)
• Trying to balance privacy, free speech on Internet (sfgate.com)

House Speaker Boehner and his party bow to the President on the tax extension

House Republican leaders have agreed to support extending the payroll tax cut through the end of the year without demanding spending cuts to pay for it.

Another potential Congressional showdown has been averted. Phew. That’s good for the economy, and for Americans: as we reported earlier, the continuation of this tax holiday will keep around $1000 in the pockets of ordinary Americans over the year.

From the Washington Post:

The House leadership could offer a pared-down measure to extend the tax cuts later this week. But the top three GOP leaders backed off previous demands that the tax break’s extension be accompanied by spending reductions to shore up the finances of the Social Security program, which is funded through withholding taxes.

Instead, House Speaker John A. Boehner (R-Ohio) and his top lieutenants said they do not want to be held responsible for the tax increase on 160 million workers that would happen if the tax holiday were not extended.

While this is a “backup plan that would simply extend the payroll tax holiday for the remainder of the year while the conference negotiations continue,” Boehner, House Majority Leader Eric Cantor (R-Va.) and House Majority Whip Kevin McCarthy (R-Calif.) said in a joint statement, the general uncertainty is gone. The cut will be extended one way or another.

This seems to be one ideological battle that the two sides might just have managed to work through. The two sides have moved on, however, to squabbling over how to pay for the extension of unemployment benefits and the Medicare reimbursement for doctors.

Related articles

• House Republican leaders aree to payroll tax holiday extension without offsets (washngtonpost.com)
• Payroll Tax Battle Absorbs Ideological Issues (legallyeasy.rocketlawyer.com)

The McCourt's in happier times. But, whatever you do, avoid a divorce like this one.

People commonly misuse the phrase “divide and conquer.”  Often, they use it as “you go one way and I’ll go another,” where one of them goes off to one place and the other person goes separately to another, thereby, theoretically, getting more done.

For the record, what this dangerously misunderstood idiom really means is: “let’s divide our enemies (not ourselves) and conquer their smaller (and thus, weaker) forces.” Coming from the Latin  – divide et impera — or divide and rule, the phrase refers to a political, military and economic strategy of gaining (and maintaining) power, by breaking up concentrations of power into pieces that are rendered powerless to the one implementing the strategy.

When lovers and spouses go into business together, they should be especially careful not to divide and conquer themselves. Most couples will not think enough about the possibility of the relationship souring and the implications a romantic break-up has for the shared business. In the most unfortunate of personal and business breakups, the lovers may divide themselves and their business, opening the way for a rival to conquer and destroy the value they created.

While divorce affects people from every walk of life, for stunning examples, just observe the glittery celebrity couples who make big economic mistakes by merging love and business. Whether it is diluting their ownership positions, damaging the goodwill of their businesses, or being forced to sell out — the impact can be enormous when lovers are business partners and they separate.

Unintended Consequences

The Wynn's managed their expensive divorce a little more astutely

Let’s start with Steve and Elaine Wynn of the Wynn casino empire in Las Vegas. The couple who helped re-invent the Las Vegas Strip, with resorts like Bellagio, Wynn and Aria, divorced back in May 2009.  Steve Wynn is the chief executive of Wynn Resorts, Inc., and his ex-wife Elaine is a director on the company’s board. So what happened when the managing couple divorced (for the second time we might add!)?

Mr. Wynn all but lost his controlling ownership position.

As was reported at the time, the Wynns parted amicably. They offered a model for how to keep the costs of divorce down, even when a million-dollar marital estate is involved. Nevertheless, even an amicable parting can have unintended consequences for a family business, as this example illustrates.  Transferring control, to his ex-wife, of $741 million worth of stock in Wynn Resorts Ltd amounted to a transfer of more than 11 million shares.

When investors become unsure of the future of the company, and the manner in which it will be run, confidence falls and share prices drop. Consumer confidence is fickle and risk-averse. At the time of this transfer, true to economic theory, Wynn stock lost 1.3% of its value.

Moreover, both partners had to disavow the right to vote on behalf of the 24.5 million shares owned by Aruze USA — a subsidiary of the Japenese gaming machine maker Universal Entertainment Corp. whose founder and president, Kazuo Okada, is vice chairman of the Wynn board. In this case, both Mr. and Ms. Wynn lost significant voting power: compared to their 18% each of outstanding stock, Aruze USA holds almost 20%.

Thus divided, the Wynns are currently embroiled in a bitter dispute with Okada, who appears to be properly executing the strategy of divide et impera.  But, as Reuters reports, the SEC is now investigating some of Mr. Okada’s claims.  At stake may be a material share of the lucrative and growing gaming market in Asia, as well as the reputation and control of Wynn Resorts, Inc., itself.

Dodger Blues – Tell All – Lose All

Things are even worse for Frank and Jamie McCourt, ex-owners of the LA Dodgers baseball team.  The divorce is believed to be  “the costliest divorce in California history.”  This divorce was nasty, public and ruinous.  The lesson here is that divorce filings are open documents: any dirty laundry, and love lost, will be thrust into the open for everyone to see.

In this particular divorce, misappropriation of dodger funds and assets became known, the couple declared bankruptcy (an outcome certainly exacerbated by an apparent $90 million spending spree) and Major League Baseball was forced to step in and demand that the estranged couple sell the team — for “the good of the game.”

What does this say? Divorces can seriously damage the reputation and goodwill of a business. And not every business is lucky enough in the long run to have a governing body that will step in to save it.

In these high-profile divorces, both the individuals and the businesses suffer. And that is excepting the the pain constantly inflicted by the third party individual or business who has benefited from your mistakes. You divided, and they conquered. Another case in point is the Lucas divorce. George Lucas kept Lucas Film but sold Pixar to pay his ex-wife. Who did he sell Pixar to? Steve Jobs!

Let there be Light

Ok, now that we’ve discussed what “divide and conquer” really means, has anyone figured out a way to legally separate, without so much economic fall-out?

Divorcing without risking the business, isn’t easy. The Wynns managed half-way. But a hopeful example, believe it or not, is that of entertainers Jennifer Lopez and Marc Anthony who have managed to maintain their public images throughout their divorce, and are even continuing to leverage their joint brand and the goodwill of their fans — as individuals and as a couple. Together, J-Lo and Marc co-host talent show “Q’Viva! The Chosen” alongside Jamie King.

So, it can be done. And whether you operate a high-stakes operation or a neighborhood shop, take a look at the information in this Marriage Legal Center to help you protect the third side of your love triangle – the business itself.

Related articles

• The loving dissolution of Mr. and Mrs. Wynn (lasvegassun.com)
• Steve Wynn Divorce Settlement: Casino Billionaire’s Wife To Get $741 Million in Stock (huffingtonpost.com)
• Wynn Resorts says SEC seeks Macau donation details (reuters.com)
• Frank and Jamie McCourt reach settlement involving Dodgers (article.latimes.com)
• A Major-League Divorce (vanityfair.com)
• With Pixar, Steve Jobs changed the film industry forever (news.cnet.com)

U.S. Attorney General Eric Holder and U.S. Housing and Urban Development Secretary Shaun Donovan played their part in this settlement

After months of arduous discussion, the federal government has finally agreed a $26 billion settlement with five of the nation’s biggest banks.

With one-in-five American mortgage-holders under water, and collective negative equity of $700 billion, the President promised today that this settlement is beginning to “turn the page on an era of recklessness.”

The background to this “landmark” deal is an investigation into mortgage servicing based on revelations that banks evicted people with false or incomplete documentation. The President alluded to these allegations in today’s speech and touted the important work carried out by all 50 state attorneys general.

In addition to wrongful foreclosures, other allegations include “robo-signing”, deficient record-keeping, inflated fees, fraud in lending and noncompliance with federal housing policy. Read the full letter from Congressman Elijah Cummings (D-MD) here.

Together with Bank of America, JPMorgan Chase, Wells Fargo, Citigroup and Ally Financial, the government hopes to help one million Americans by reducing their mortgage debt, or helping them to refinance. Another 740,000 who lost their homes between September 2008 and the end of 2011 will receive checks for about $2,000.

According to the New York Times:

Despite the billions earmarked in the accord, the aid will help a relatively small portion of the millions of borrowers who are delinquent and facing foreclosure.

But in spite of the of the $26 billion figure doing the rounds, federal officials hope that the eventual value for homeowners will be somewhere closer to $39 billion.

As with anything (and everything), the success of this deal depends on its execution — another point the President was happy to make in his speech: “To build on this settlement, Congress still needs to send me the bill I proposed”. He continued by saying that we can get America back on track only “if Congress musters the will the act”.

Good for families and good for America seems to be the tag-line to this deal. But how much will it really help the economy as a whole?

Christopher J. Mayer, a housing expert at Columbia Business School, said the accord might give banks more certainty that they can clear the buildup of seized homes, therefore restoring the flow of those homes into the market. But, he continued, while “it may be good for individual homeowners…if you don’t do something to help the foreclosure process, it’s not going to help the housing market”.

The best we can do, it seems, is to wait and see. Consumer confidence and spending is always one of the trickiest behaviors to predict.

As the President said, no measure of justice will be enough to make it right for a family who has had their piece of the American dream taken away from them. But this settlement is a start; the American dream might yet be resuscitated.

Related articles

• Mortgage giants to pay $26 billion in foreclosure settlement (latimes.com)
• States Negotiate $26 Billion Agreement for Homeowners (nytimes.com)
• Mortgage deal could bring billions in relief (money.cnn.com)

Journalist Kristyna Wentz-Graff arrested in Milwaukee

In a year that’s seen grassroots challenges to dictatorial regimes in the Middle East with ensuing brutal crackdowns on these popular movements, Occupy Wall Street, right here in the United States provoked the kind of reaction from authorities that also necessitated a serious fall in America’s Press Freedom ranking.

According to Josh Stearns’ Storify that tracks journalist arrests throughout the Occupy movement,  63 journalists have been arrested in 12 cities around the country. Most recently, photojournalist Jerry Nelson was arrested in Washington DC on February 4.

The result of this crackdown? The United States fell 27 places to 47th in the Reporters Without Borders’ Press Freedom Index.

Elsewhere, while Tunisia was rewarded for its democratic revolution moving up 30 places, Bahrain and Egypt, both of which cracked down on journalists and the popular movements pressing for further change in their countries, fell 29 and 39 places, respectively. Two places below Bahrain lies Syria — the current focus of another gripping Storify, graphically displaying the human cost of the government crackdown.

I’m left wondering whether journalists have been repeated targets because they play an increasingly important role? Or if they play an increasingly important role because they are perceived as threats by authorities who are trying desperately to keep us quiet?

In any case, much respect to all those reporters, are out there on the front line, risking everything to bring us the truth from places, Middle Eastern, or American, where information (and freedom) is being suppressed.

Related articles

• Press Freedom Index: Occupy Wall Street Journalist Arrests Cost U.S. Dearly in Latest Survey (huffingtonpost.com
• Reporters Without Borders: Targeting of Occupy journalists drops U.S. to 47th in press freedom (dailykos.com)
• Journalist recovers video of his arrest after police deleted it (arstechnica.com)
• Occupy Wall Street Protests Heighten Tension Between Policy and Media Nationwide (huffingtonpost.com)

The flag flies high today in California -- but there is still a long way to the Supreme Court

Today in California, Proposition 8, the 2008 ballot ban on same sex marriage, has been struck down 2-1 by the 9th Circuit Court of Appeals.

Judge Stephen Reinhardt spoke for the majority when he said that “Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”

“The Constitution simply does not allow for laws of this sort,” the court continued. The majority argues that no state can simply revoke gay rights because a majority of voters disapprove of gay marriage.

The ruling upheld a decision by retired Chief U.S. District Judge Vaughn R. Walker, who struck down the ballot measure in 2010. But where Walker ruled that gays and lesbians have a constitutional right to marry their chosen partner — a ruling that, if upheld on appeal, would apply nationwide, today’s ruling was far narrower and will be limited to California.

ProtectMarriage, the group supporting Proposition 8 are likely to appeal to a larger panel of the 9th Circuit or go directly to the U.S. Supreme Court. While today’s decision was a victory of sort for opponents, the ban will remain in effect while the case makes its way through the court system.

The next question on the lips of everyone involved, and all those just observing,  is what the Supreme Court will do.

According to Adam Winkler, UCLA law professor:

Gay rights lawyers have mixed feelings about an appeal to the Supreme Court. Some were opposed to the Proposition 8 lawsuit from the beginning, fearing what the conservative-leaning Roberts Court might do. In so many cases dealing with high-profile, controversial issues — from affirmative action to the Second Amendment — the Court’s conservative wing has emerged triumphant. If the Court decides against marriage equality in the Proposition 8 case, it will set a precedent that may take decades to undo.

With the usual split of left and right, Roberts, Thomas, Scalia, Alito are likely to vote against gay marriage, while Ginsburg, Breyer, Sotomayor and Kagan are likely to vote in favor. How the court rules, therefore, is expected to turn on the vote of Justice Kennedy.

In this, advocates for gay marriage are actually hopeful. Twice already Justice Kennedy has written strong opinions endorsing equality for all Americans, independent of sexual orientation.

Adam Winkler explains:

In the most recent of those cases, Kennedy wrote that “our laws and tradition afford constitutional protection to personal decisions relating to marriage” and “other family relationships.” “These matters,” Kennedy continued, “involving the most intimate and personal choices a person may make in a lifetime, choices central or personal dignity and autonomy, are central to the liberty protected by” the Constitution. “Persons in a homosexual relationship may seek autonomy for these purposes just as heterosexual persons do,” Kennedy wrote.

How the Supreme Court will vote, and whether they will rule narrowly or expansively, is likely to be the subject of many an editorial from now until the decision is passed down.

We’ll be following closely.

Related articles

• Prop. 8: Gay-marriage ban unconstitutional, court rules (latimesblogs.latimes.com)
• After Today’s Prop 8 Victory, What’s Next for Same-Sex Marriage? (huffingtonpost.com)