Should voters toss the chief justice in 2010?

It doesn’t take a legal scholar to point out the obvious reason why the California Supreme Court, led by Ron George, got it so wrong in their ruling that denied gays the right to marry. They saw the ghost of Rose Bird and feared the anti-gay-rights mob would recall them.

George et al continues to fool some of my better-informed friends and colleagues, including the editorial writers at the L.A. Times. For amusement — and motivation to act — check out today’s solo editorial, which seeks to draw lessons of a corrupt West Virginia high court jurist for California. We’re advised, of course, not to recall George in 2010 because it’s not like he was on the take from corporate interests when he bungled the gay-marriage ruling. Nice logic if you believe money trumps rights.

The cowardly George takes hero status in the editorial for bowing to the will of the people only months after upholding the legal foundation of same-sex unions. Maybe we should induct him into the Flip Floppers Hall of Fame when we vote to keep him on the high court next year.

In the gay-marriage cases, George’s votes demonstrated conscience, professionalism and restraint. He voted to uphold same-sex unions out of the strong conviction — which this page shares — that the Constitution does not allow society to deny the protection of marriage to gay couples any more than it once denied it to those united across race. The ruling was right on the law, and will certainly be validated over the long march of history.

Months later, voters tacked in the other direction, narrowly rejecting gay marriage and amending the Constitution to allow California to recognize only the unions of heterosexual couples… George subordinated his politics — as evidenced by his writing — to the weight of constitutional opinion. He voted to uphold the proposition, even though it undid his own work. Permitted latitude within the strictures of the Constitution in the first case, George was able to vote his conscience; bound by the Constitution in the second case, he yielded…

This is not West Virginia. Corporate interests are not knocking off justices who disagree with them and seating more accommodating replacements. But intimidation has no place in our judicial life any more than it does in Appalachia. The 1986 campaign against Bird and her colleagues now stands for many as a reminder that well-intentioned systems of accountability may be hijacked by special interests, a lesson learned too often and at great cost in California. It was misguided in its first iteration; it would be regrettable in its second.

In fact, maybe it’s worse — or at least as bad — as in West Virginia.

In light of Thursday’s California Supreme Court hearing on Proposition 8, articles and columns have been running all this past week about the issue of same sex marriage.

There are many good pieces but, so far, my favorite out of the batch is a story that ran in the LA Times on Thursday about Bob Claunch and Jack Reavley who are 83 and 85 years old, respectively. They first met in 1951 when both were serving in the military. Reavley was Claunch’s commanding officer.

The two men have been together ever since; nearly sixty years. In that time, they haven’t been gay activists. They did not organize against Prop. 8. Jack Reavley and Bob Claunch were simply two people who loved each other, and demonstrated their commitment for more than a half century.

Up until recently, the couple didn’t fret about the fact that their relationship couldn’t be legalized through marriage. They didn’t feel they needed the piece of paper to prove who and what they were to each other.

However, now that it appears that Proposition 8 will likely be let to stand, and the men are old and increasingly frail, they wonder if they should have gotten married during the brief window of time in California when they had the chance.

Read the rest of the story here.

UPDATE: Live blogging the court at the end of the post. But, to cut to the chase, I’m sorry to say, Ken Starr was by far the most impressive of the attorneys. Some of his argument was horrifying. But it was extremely well constructed. Plus, he came off as a heavey hitter. A super pro. The others, not so much. I hope I’m wrong about this, but I don’t think so.

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At 9 a.m. this morning, the three-hour hearing in front of the California Supreme Court about the issue of same sex marriage will begin with Kenneth Starr and Shannon Minter delivering opening arguments for and against Proposition 8, respectively.

And it’s on television.

Fire up the Jumbotrons. (Actually there will be a Jumbotron in front of the Sacramento San Francisco court building* to accommodate those who want to witness whatever history is or is not made—but who can’t squeeze inside the actual court.)

The New York Times—in its new bid to get LA readers to jump ship from the Los Angeles Times—has a story about the first day of the Prop. 8 case featured front and center on its main web page, whereas the putative actual LA newspaper of record (that would be our beloved but beleaguered LA Times) has nothing on its own front page about the hearing (at least last time I checked). There is, however, an editorial that gives a not-bad rundown on what to expect from today’s opening arguments.

A good companion rundown may be found at the Huff Post in a column written by civil litigator Emma Ruby-Sachs, titled Prop 8 For Dummies..

Ruby-Sachs concludes, as I do, that the best argument against Prop. 8 is going to be— not that it violates the equal protection clause—but the contention that it is not a proper amendment to the California constitution at all, but a constitutional revision, which must be approved by the state legislature.

Gentleman and ladies, start your TiVos. I’ll meet you back here when the first round is over.

(And then we’ll check in on the other big legal drama still unfolding—namely the W.R. Grace trial.)

* Next time, with more sleep, I might even get the city right on the first go-round. (sigh.)

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UPDATE: LIVE BLOGGING

So far the justices are not going for the “revision” concept. But we ain’t done with that concept just yet.

The lawyers are trying to get the justices to say that any time you take away a fundamental right from a minority, this constitutes a revision, not an amendment. If the court goes for this, they will be setting a precedent. After initially being resistant. They are now at least entertaining the notion.

The best Twitter feed on the hearing may be found here.

AG Jerry Brown is live twittering: @JerryBrown2010 His updates aren’t that speedy, though. At least not yet.

Attorney Terry Stewart, now arguing for SF, has a very problematic bright mauve pocket hanky.

Did I mishear or did Ken Starr just say the power of the people includes the right to eliminate free speech under the California constitution. WTF???

Starr: “We don’t view Prop 8 as invalidating marriages–they just wouldn’t be recognized.” Okay, sure. That works. (NOT.)

We are now hearing double-speak on the level of Starr’s nemesis and the famous “it depends on what the definition of is is..”

OMG, Justice George is making “definition of IS” jokes. Go Justice George!

Okay, back to work on other deadlines. (Mostly)

Justice Kennard: Is it still your view that the sky has fallen in and that gays and lesbians are left with nothing?

If Justice Kennard is the swing vote, Prop 8 will remain law. No question. Kennard’s starting to get on my last nerve, by the way.

SF Deputy City Attorney Terry Stewart gave a great rebuttal. She was excellent—my new hero, mauve pocket hanky and all. (Stewart: “The amendment power is a limited power.” Uh, yeah.) Don’t think it will be enough for Kennard, sadly.

And the court is adjourned.

Over and out. We’ll know in 90 days – ish.

In a decision that hearkened back to the 1948 opinion overturning the prohibition against interracial marriages, the California Supreme Court decided that same sex couples have a “fundamental right” to marry each other, just like straight couples. In doing so, the California Supremes struck down nearly any law that discriminates on the basis of sexual orientation.

The decision was a very pleasant and welcome surprise coming from the Republican dominated court. There are a zillion articles and opinion pieces about the decision, but the LA Times has a fairly thorough story, so you may as well start there.

Time Magazine has a good rundown as well.

It is a dramatic legal story….but with a twist. And it’s a hell of a twist having to do with a well-known prosecutor and a stripper.

First, here are the basics:

On Monday, the California Supreme Court decided unanimously that San Quentin inmate Adam Miranda should not have been sentenced to death twenty years ago because senior District Attorney Curt Hazell—and three sitting judges (formerly prosecutors), Judge Lance Ito, San Diego Judge Roger W. Krauel, and Orange County Superior Court Judge Frederick Horn —-either knowingly or accidentally failed to hand over an essential piece of exculpatory evidence—-namely the confession to a related killing by the prosecution’s star witness.

This is complicated case, and Miranda is not a good guy. Here’s how the LA Times explains it in yesterday’s editorial:

[Adam] Miranda is not a sympathetic symbol for abolishing the death penalty. Jurors were presented with a videotape at trial that showed him killing an Eagle Rock convenience store clerk; having committed such a brutal crime, he should never again walk free. But his sentence — death, and not life without parole — was based in part on another killing. The letter found in the prosecutor’s file, but never shared with the defense as required by law and thus never considered by the sentencing jury, contained evidence of another man’s admission to that crime.

In other words, Miranda is a stone killer who deserves life without possibility of parole. But, given the laws of the state, the central issue around which his death sentence was built, was entirely false.

Scarily, it was only the nearly two decades of pro bono digging on the part of entertainment lawyer George Hedges, that got Miranda off death row. Here’s what Hedges told Business Wire:

“We have been through a 20-year struggle to locate evidence the DA’s office intentionally withheld that showed our client did not commit the murder that placed him on death row 26 years ago,” said Mr. Hedges. “The case reveals an outrageous miscarriage of justice.”

“It took us years to force the DA’s office to turn over the Miranda files, and there in the back of one of the files was an envelope containing a confession to the murder by the star witness the prosecutors used to condemn our client to death,” added Mr. Bensinger. “It shows just how corrupt the system is. Without an all-out legal assault our client would have been put to death years ago for a crime he didn’t commit.”

And if that wasn’t bad enough, here’s the twist to the story:

The main witness in Miranda’s murder trial (the murder for which he was righteously convicted), was a woman named Donna Navarro who was working as a stripper at the time of the trial, but who happened in on the scene of the crime, and had the courage to come forward in order to testify to what she saw.
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