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Thoughts on SCOTUS & Prop 8 Possibilites…Victims of the False Confession Capital…and Wolves

Now that we know that the US Supreme Court will, indeed,
consider the issue of California’s Proposition 8 (along with the Defense of Marriage Act case, the United States v. Windsor), the handicapping has begun as to what the Supremes might decide and why.

With Prop 8 the justices have at least three possible choices:

1. They could elect to reverse the 9th Circuit’s ruling that Prop. 8 is unconstitutional and, in so doing, outlaw same sex marriage in California by letting Prop 8 stand.

2. Alterately, there is the best case scenario: the court could find that Prop 8 violates the U.S. Constitution. And that’s the ball game; same sex marriage will be legal throughout the nation.

3. There is, however, a third option, a sort of trap door that lets SCOTUS out having to make one of the two blanket decisions on constitutionality. With option 3, they could reach in and rule, not on the issue, but on whether the Prop 8 defenders have the “standing” to have appealed the lower court ruling that declared Prop 8 unconstitutional. If the Supremes go for option 3, then wedding bells may ring in California, without affecting the rest of the nation one way or the other.

One of the more upbeat essays analyzing the various possibilities is this op ed in the Sunday LA Times by Harvard Law prof, Michael Klarman, in which Klarman basically says that the most likely options are #2 and #3, that even the most conservative justices can see the way the wind is blowing culturally in the U.S., and they’re not likely to want to have to explain in 10 years to their grandchildren why they voted on the resoundingly wrong side of history. Thus, if they’re not ready to open the doors to marriage rights, nationwide, they’ll kick it back to the states.

Here’s how he ends it:

….Many state legislators have explained their votes in favor of gay marriage on the ground that they wanted to be on the right side of history and to have their children be proud when reflecting on their parent’s legislative record. Judges authoring opinions in support of gay marriage have frequently invoked examples of courts being on the right side of history. Chief Justice Margaret Marshall, the author of Massachusetts’ pioneering gay-marriage ruling, has compared it to that court’s 1790s ruling that barred slavery under the very same constitutional provision. Similarly, the California Supreme Court’s decision in favor of gay marriage proudly invoked its landmark 1948 ruling that invalidated a state ban on interracial marriage.

In 1954, the court’s ruling in Brown vs. Board of Education, which invalidated racial segregation in public schools, split the nation in half. Within two decades, however, it had become iconic. A high court ruling in favor of marriage equality would similarly divide the nation in 2013. Yet, given how quickly public opinion is evolving, within a decade or so such a decision would probably also be almost universally applauded. What justice would not be tempted to author the opinion that within a few short years likely would become known as the Brown vs. Board of Education of the gay rights movement?

However, Adam Liptak is not nearly as chipper in his outlook in Monday’s New York Times.

Here’s a clip:

…The cautious move for the justices would have been to hear just one of the cases they were asked to consider, the one posing the relatively modest question of whether the federal government can discriminate against same-sex couples married in the places that allow such unions.

But the court went big on Friday, also taking the case from California filed by Theodore B. Olson and David Boies. Their case seeks to establish a constitutional right to same-sex marriage in the remaining states, almost all of which have laws or constitutional provisions prohibiting it.

“We are now literally within months,” Mr. Boies said Friday, “of getting a final resolution of this case that began three and a half years ago.”

The speed with which the court is moving has some gay rights advocates bracing for a split decision. The court could strike down the federal law, the Defense of Marriage Act, saying that the meaning of marriage is a matter for the states to decide. At the same time, it could reject the idea that the Constitution requires states to allow same-sex marriage, saying that the meaning of marriage is a matter for the states to decide.

That may be why supporters of traditional marriage sounded pretty cheerful on Friday.

“I’m ecstatic,” said Brian S. Brown, the president of the National Organization for Marriage. “Taking both cases at the same time exposes the hypocrisy on the other side.”

It is entirely possible, then, that the votes to grant review in the California case came from the court’s more conservative justices. They may have calculated that they had a shot at capturing the decisive vote of the member of the court at its ideological center, Justice Anthony M. Kennedy, at least in the California case.

AND WHILE WE’RE ON THE TOPIC, HERE ARE the coolest photos of the first wave of same sex couples getting married in Washington.


60 Minutes has an excellent and disturbing story about the prevalence of false confessions, particularly in Chicago, and about two groups of teenagers, now adults, who were pushed into confessing to murders they didn’t commit.

Here’s a clip from the transcript:

Why would anyone confess to a crime they did not commit? It happens so often in Chicago, defense attorneys call the city the false confession capital of the United States. Chicago has twice as many documented false confession cases as any city in the country. One reason may be the way police go about questioning suspects. And 60 Minutes has learned the Chicago Police Department is now the subject of a Justice Department investigation into its interrogation practices.

Two cases we examined involve several teenage boys who were arrested and they say forced or tricked into confessing to violent crimes they never committed. Each spent nearly half their lives in prison. They are free now, and told us their story together for the first time.

Terrill Swift: We all of us got one thing in common. We did an extensive amount of time in jail for something we didn’t do. And that’s the bottom line.

They each would serve sentences that ranged from 15 years to life. Terrill Swift, Michael Saunders, Vincent Thames, and Harold Richardson were convicted in one rape and murder. James Harden, Robert Taylor and Jonathan Barr, in a different one. All were found guilty based solely on confessions.


The latest instance of a tagged and monitored wolf that are part of Yellowstone’s wolf study program being killed makes clear that some better system needs to be designed that protects these wolves during hunting season.

The New York Times’ Nate Schweber has the story about the shooting of 826F—popularly known as ’06, the rock star female wolf.

Yellowstone National Park’s best-known wolf, beloved by many tourists and valued by scientists who tracked its movements, was shot and killed on Thursday outside the park’s boundaries, Wyoming wildlife officials reported.

The wolf, known as 832F to researchers, was the alpha female of the park’s highly visible Lamar Canyon pack and had become so well known that some wildlife watchers referred to her as a “rock star.” The animal had been a tourist favorite for most of the past six years.

The wolf was fitted with a $4,000 collar with GPS tracking technology, which is being returned, said Daniel Stahler, a project director for Yellowstone’s wolf program. Based on data from the wolf’s collar, researchers knew that her pack rarely ventured outside the park, and then only for brief periods, Dr. Stahler said.

This year’s hunting season in the northern Rockies has been especially controversial because of the high numbers of popular wolves and wolves fitted with research collars that have been killed just outside Yellowstone in Idaho, Montana and Wyoming….

Photographer Jimmy Jones has photos of ’06 here.

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