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"content": "\u003cp>SACRAMENTO, Calif. (AP) — A judge accepted Stockton's bankruptcy application on Monday, making it the most populous city in the nation to enter bankruptcy.\u003c/p>\n\u003cfigure id=\"attachment_68627\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/2012/06/22/stockton-wobbles-toward-bankruptcy/stockton-ca-leads-nation-in-rate-of-foreclosures/\" rel=\"attachment wp-att-68627\">\u003cimg class=\"size-full wp-image-68627 \" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/06/StocktonSign0422.jpg\" alt=\"(Photo by Justin Sullivan/Getty Images)\" width=\"300\" height=\"200\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">(Photo by Justin Sullivan/Getty Images)\u003c/figcaption>\u003c/figure>\n\u003cp>U.S. Bankruptcy Judge Christopher Klein said the bankruptcy declaration was needed to allow the city to continue to provide basic services.\u003c/p>\n\u003cp>\"It's apparent to me the city would not be able to perform its obligations to its citizens on fundamental public safety as well as other basic government services without the ability to have the muscle of the contract-impairing power of federal bankruptcy law,\" Klein said.\u003c/p>\n\u003cp>The city of nearly 300,000 people has become emblematic of government excess and the financial calamity that resulted when the nation's housing bubble burst.\u003c/p>\n\u003cp>Its salaries, benefits and borrowing were based on anticipated long-term developer fees and increasing property tax revenue. But those were lost in a flurry of foreclosures beginning in the mid-2000s and a 70 percent decline in the city's tax base.\u003c!--more-->\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>The city's creditors wanted to keep Stockton out of bankruptcy — a status that will likely allow the city to avoid repaying its debts in full.\u003c/p>\n\u003cp>They argued the city had not cut spending enough or sought a tax increase that would have allowed it to avoid bankruptcy.\u003c/p>\n\u003cp>Matthew Walsh, an attorney for the bond holders, declined to comment after Monday's ruling.\u003c/p>\n\u003cp>Attorneys for the city said the city's budget and services had been cut to the bone.\u003c/p>\n\u003cp>\"There's nothing to celebrate about bankruptcy,\" said Bob Deis, Stockton's city manager. \"But it is a vindication of what we've been saying for nine months.\"\u003c/p>\n\u003cp>The Chapter 9 bankruptcy case is being closely watched nationally for potential precedent-setting implications.\u003c/p>\n\u003cp>The $900 million that Stockton owes to the California Public Employees' Retirement System to cover pension promises is its biggest debt. So far Stockton has kept up with pension payments while it has reneged on other debts, maintaining that it needs a strong pension plan to retain its pared-down workforce.\u003c/p>\n\u003cp>The creditors who challenged Stockton's bankruptcy petition are the bond insurers who guaranteed $165 million in loans the city secured in 2007 to pay its contributions to the CalPERS pension fund. That debt got out of hand as property tax values plummeted during the recession, and money to pay the pension obligation fell short.\u003c/p>\n\u003cp>Legal observers expect the creditors to aggressively challenge Stockton's repayment plan in the next phase of the process.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>By 2009 Stockton had accumulated nearly $1 billion in debt on civic improvements, money owed to pay pension contributions, and the most generous health care benefit in the state — coverage for life for all retirees plus a dependent, no matter how long they had worked for the city.\u003c/p>\n\n",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>SACRAMENTO, Calif. (AP) — A judge accepted Stockton's bankruptcy application on Monday, making it the most populous city in the nation to enter bankruptcy.\u003c/p>\n\u003cfigure id=\"attachment_68627\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/2012/06/22/stockton-wobbles-toward-bankruptcy/stockton-ca-leads-nation-in-rate-of-foreclosures/\" rel=\"attachment wp-att-68627\">\u003cimg class=\"size-full wp-image-68627 \" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/06/StocktonSign0422.jpg\" alt=\"(Photo by Justin Sullivan/Getty Images)\" width=\"300\" height=\"200\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">(Photo by Justin Sullivan/Getty Images)\u003c/figcaption>\u003c/figure>\n\u003cp>U.S. Bankruptcy Judge Christopher Klein said the bankruptcy declaration was needed to allow the city to continue to provide basic services.\u003c/p>\n\u003cp>\"It's apparent to me the city would not be able to perform its obligations to its citizens on fundamental public safety as well as other basic government services without the ability to have the muscle of the contract-impairing power of federal bankruptcy law,\" Klein said.\u003c/p>\n\u003cp>The city of nearly 300,000 people has become emblematic of government excess and the financial calamity that resulted when the nation's housing bubble burst.\u003c/p>\n\u003cp>Its salaries, benefits and borrowing were based on anticipated long-term developer fees and increasing property tax revenue. But those were lost in a flurry of foreclosures beginning in the mid-2000s and a 70 percent decline in the city's tax base.\u003c!--more-->\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>The city's creditors wanted to keep Stockton out of bankruptcy — a status that will likely allow the city to avoid repaying its debts in full.\u003c/p>\n\u003cp>They argued the city had not cut spending enough or sought a tax increase that would have allowed it to avoid bankruptcy.\u003c/p>\n\u003cp>Matthew Walsh, an attorney for the bond holders, declined to comment after Monday's ruling.\u003c/p>\n\u003cp>Attorneys for the city said the city's budget and services had been cut to the bone.\u003c/p>\n\u003cp>\"There's nothing to celebrate about bankruptcy,\" said Bob Deis, Stockton's city manager. \"But it is a vindication of what we've been saying for nine months.\"\u003c/p>\n\u003cp>The Chapter 9 bankruptcy case is being closely watched nationally for potential precedent-setting implications.\u003c/p>\n\u003cp>The $900 million that Stockton owes to the California Public Employees' Retirement System to cover pension promises is its biggest debt. So far Stockton has kept up with pension payments while it has reneged on other debts, maintaining that it needs a strong pension plan to retain its pared-down workforce.\u003c/p>\n\u003cp>The creditors who challenged Stockton's bankruptcy petition are the bond insurers who guaranteed $165 million in loans the city secured in 2007 to pay its contributions to the CalPERS pension fund. That debt got out of hand as property tax values plummeted during the recession, and money to pay the pension obligation fell short.\u003c/p>\n\u003cp>Legal observers expect the creditors to aggressively challenge Stockton's repayment plan in the next phase of the process.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>By 2009 Stockton had accumulated nearly $1 billion in debt on civic improvements, money owed to pay pension contributions, and the most generous health care benefit in the state — coverage for life for all retirees plus a dependent, no matter how long they had worked for the city.\u003c/p>\n\n\u003c/div>\u003c/p>",
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"disqusTitle": "News Pix: Prop. 8 Oral Arguments, Bay Bridge Bolts Snap, Devil's Slide Tunnel Opens",
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"content": "\u003cp>\u003cimg class=\"aligncenter size-full wp-image-92874\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/Prop8.jpg\" alt=\"Prop8\" width=\"640\" height=\"450\">Crowds of people outside the Supreme Court in Washington, D.C protest the \u003ca href=\"http://ww2.kqed.org/news/2013/03/27/doma-oral-arguments-explained/\">Defense of Marriage Act\u003c/a> on Wednesday, March 27. (Jacob Fenston/KQED)\u003c/p>\n\u003cp>\u003cimg class=\"aligncenter size-full wp-image-92876\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/PhotoWeek130329rainbowflag.jpg\" alt=\"PhotoWeek130329rainbowflag\" width=\"640\" height=\"450\">On Tuesday March 26, the rainbow flag was \u003ca href=\"http://www.berkeleyside.com/2013/03/26/berkeley-marks-supreme-court-cases-with-rainbow-flag/\">raised over Berkeley City Hall\u003c/a> to mark arguments in the U.S. Supreme Court on Proposition 8. It also flew the following day, during arguments on the Defense of Marriage Act. (Lance Knobel/\u003ca href=\"http://www.berkeleyside.com/\">Berkeleyside\u003c/a>)\u003c/p>\n\u003cp>\u003cimg class=\"aligncenter size-full wp-image-92877\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/PhotoWeek130329devilsslide.jpg\" alt=\"PhotoWeek130329devilsslide\" width=\"640\" height=\"450\">The Devil's Slide Tunnels south of Pacifica and north of Half Moon Bay are\u003ca href=\"http://science.kqed.org/quest/2013/03/25/at-last-devils-slide-tunnels-open/\"> finally open \u003c/a>after decades of environmental battles and years of construction. The tunnels are meant to solve the safety and erosion problems that have plagued that notorious stretch of Highway 1 since it was built. They consist of two bores each about 4,200 feet long and each with one lane and wide shoulder. (Jenny Oh/KQED)\u003c/p>\n\u003cp>\u003cimg class=\"aligncenter size-full wp-image-92878\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/PhotoWeek130329exploratoriu.jpg\" alt=\"PhotoWeek130329exploratoriu\" width=\"640\" height=\"450\">San Francisco's Exploratorium is set to reopen in its new location on Pier 15 on April 17. The Bay Observatory is in a \u003ca href=\"http://science.kqed.org/quest/2013/03/22/get-a-sneak-peak-of-san-franciscos-new-exploratorium/\">newly-constructed part of the building\u003c/a>. There are views of San Francisco Bay on one side, and the Transamerica Pyramid on the other. (David Livingston/EHDD)\u003cbr>\n\u003c!--more-->\u003cbr>\n\u003cimg class=\"aligncenter size-full wp-image-92879\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/bay-bridge-bolts.jpg\" alt=\"bay bridge bolts\" width=\"640\" height=\"450\">Steel rods on the new eastern span of the Oakland-San Francisco Bay bridge were found broken when workers returned to check fittings. Engineers still aren't sure \u003ca href=\"http://ww2.kqed.org/news/2013/03/28/engineers-zero-in-on-bay-bridge-broken-bolt-solutions/\">how they will fix \u003c/a>the problem. (Deborah Svoboda/KQED)\u003c/p>\n\u003cp>\u003cimg class=\"aligncenter size-full wp-image-92885\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/PhotoWeek130329traindeath.jpg\" alt=\"PhotoWeek130329traindeath\" width=\"640\" height=\"450\">Donae James Johnican, a 16-year-old Lincoln High School student, was struck and killed by a train last week. More than 300 family, students, and community members from San Jose came together at a vigil to remember and celebrate this promising musician and talented young artist. He was remembered by his uncle as “giving his love easily and to everyone.” (Charisse Domingo/\u003ca href=\"http://www.sjbeez.org/\">San Jose Beez\u003c/a>)\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp style=\"text-align: left\">\u003ca href=\"http://www.flickr.com/photos/berkboy/\">\u003cimg class=\"aligncenter size-full wp-image-92886\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/PhotoWeek130329baseball.jpg\" alt=\"PhotoWeek130329baseball\" width=\"640\" height=\"450\">\u003c/a>Cal baseball has 121 years of history, including 80 at Evans Diamond in Berkeley. But the team added to the annals of history on Thursday night with its \u003ca href=\"http://www.berkeleyside.com/2013/03/29/fiat-lux-cal-baseball-debuts-under-the-lights-after-121-years/\">first-ever night game under lights\u003c/a> at Evans. Two years ago, the baseball team was facing extinction, the victim of athletic department cuts. Team alumni and supporters rallied to raise the money to keep it going and fund the lights. (\u003ca href=\"http://www.flickr.com/photos/berkboy/\">Ted Friedman\u003c/a>/\u003ca href=\"http://www.berkeleyside.com/\">Berkeleyside\u003c/a>)\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>\u003cimg class=\"aligncenter size-full wp-image-92884\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/hinkley.jpg\" alt=\"hinkley\" width=\"639\" height=\"450\">Crews are demolishing houses as hundreds of families move out of Hinkley to escape chromium 6 pollution in the water. (Chris Richard/KQED)\u003c/p>\n\n",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>\u003cimg class=\"aligncenter size-full wp-image-92874\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/Prop8.jpg\" alt=\"Prop8\" width=\"640\" height=\"450\">Crowds of people outside the Supreme Court in Washington, D.C protest the \u003ca href=\"http://ww2.kqed.org/news/2013/03/27/doma-oral-arguments-explained/\">Defense of Marriage Act\u003c/a> on Wednesday, March 27. (Jacob Fenston/KQED)\u003c/p>\n\u003cp>\u003cimg class=\"aligncenter size-full wp-image-92876\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/PhotoWeek130329rainbowflag.jpg\" alt=\"PhotoWeek130329rainbowflag\" width=\"640\" height=\"450\">On Tuesday March 26, the rainbow flag was \u003ca href=\"http://www.berkeleyside.com/2013/03/26/berkeley-marks-supreme-court-cases-with-rainbow-flag/\">raised over Berkeley City Hall\u003c/a> to mark arguments in the U.S. Supreme Court on Proposition 8. It also flew the following day, during arguments on the Defense of Marriage Act. (Lance Knobel/\u003ca href=\"http://www.berkeleyside.com/\">Berkeleyside\u003c/a>)\u003c/p>\n\u003cp>\u003cimg class=\"aligncenter size-full wp-image-92877\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/PhotoWeek130329devilsslide.jpg\" alt=\"PhotoWeek130329devilsslide\" width=\"640\" height=\"450\">The Devil's Slide Tunnels south of Pacifica and north of Half Moon Bay are\u003ca href=\"http://science.kqed.org/quest/2013/03/25/at-last-devils-slide-tunnels-open/\"> finally open \u003c/a>after decades of environmental battles and years of construction. The tunnels are meant to solve the safety and erosion problems that have plagued that notorious stretch of Highway 1 since it was built. They consist of two bores each about 4,200 feet long and each with one lane and wide shoulder. (Jenny Oh/KQED)\u003c/p>\n\u003cp>\u003cimg class=\"aligncenter size-full wp-image-92878\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/PhotoWeek130329exploratoriu.jpg\" alt=\"PhotoWeek130329exploratoriu\" width=\"640\" height=\"450\">San Francisco's Exploratorium is set to reopen in its new location on Pier 15 on April 17. The Bay Observatory is in a \u003ca href=\"http://science.kqed.org/quest/2013/03/22/get-a-sneak-peak-of-san-franciscos-new-exploratorium/\">newly-constructed part of the building\u003c/a>. There are views of San Francisco Bay on one side, and the Transamerica Pyramid on the other. (David Livingston/EHDD)\u003cbr>\n\u003c!--more-->\u003cbr>\n\u003cimg class=\"aligncenter size-full wp-image-92879\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/bay-bridge-bolts.jpg\" alt=\"bay bridge bolts\" width=\"640\" height=\"450\">Steel rods on the new eastern span of the Oakland-San Francisco Bay bridge were found broken when workers returned to check fittings. Engineers still aren't sure \u003ca href=\"http://ww2.kqed.org/news/2013/03/28/engineers-zero-in-on-bay-bridge-broken-bolt-solutions/\">how they will fix \u003c/a>the problem. (Deborah Svoboda/KQED)\u003c/p>\n\u003cp>\u003cimg class=\"aligncenter size-full wp-image-92885\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/PhotoWeek130329traindeath.jpg\" alt=\"PhotoWeek130329traindeath\" width=\"640\" height=\"450\">Donae James Johnican, a 16-year-old Lincoln High School student, was struck and killed by a train last week. More than 300 family, students, and community members from San Jose came together at a vigil to remember and celebrate this promising musician and talented young artist. He was remembered by his uncle as “giving his love easily and to everyone.” (Charisse Domingo/\u003ca href=\"http://www.sjbeez.org/\">San Jose Beez\u003c/a>)\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp style=\"text-align: left\">\u003ca href=\"http://www.flickr.com/photos/berkboy/\">\u003cimg class=\"aligncenter size-full wp-image-92886\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/PhotoWeek130329baseball.jpg\" alt=\"PhotoWeek130329baseball\" width=\"640\" height=\"450\">\u003c/a>Cal baseball has 121 years of history, including 80 at Evans Diamond in Berkeley. But the team added to the annals of history on Thursday night with its \u003ca href=\"http://www.berkeleyside.com/2013/03/29/fiat-lux-cal-baseball-debuts-under-the-lights-after-121-years/\">first-ever night game under lights\u003c/a> at Evans. Two years ago, the baseball team was facing extinction, the victim of athletic department cuts. Team alumni and supporters rallied to raise the money to keep it going and fund the lights. (\u003ca href=\"http://www.flickr.com/photos/berkboy/\">Ted Friedman\u003c/a>/\u003ca href=\"http://www.berkeleyside.com/\">Berkeleyside\u003c/a>)\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>\u003cimg class=\"aligncenter size-full wp-image-92884\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/hinkley.jpg\" alt=\"hinkley\" width=\"639\" height=\"450\">Crews are demolishing houses as hundreds of families move out of Hinkley to escape chromium 6 pollution in the water. (Chris Richard/KQED)\u003c/p>\n\n\u003c/div>\u003c/p>",
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"disqusTitle": "Berkeley Commission Probes Police Role in Transgender Woman's Death",
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"content": "\u003cp>Paranoid, schizophrenic and transgender, Kayla Moore followed a difficult path through life. That path ended abruptly when she died after Berkeley Police took her into custody the night of Feb. 12.\u003c/p>\n\u003cfigure id=\"attachment_92830\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/2013/03/28/berkeley-investigators-probe-police-role-in-transgender-womans-death/police-cruiser-thinkstock-3/\" rel=\"attachment wp-att-92830\">\u003cimg class=\"size-medium wp-image-92830\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/police-cruiser-thinkstock2-300x225.jpg\" alt=\"police cruiser thinkstock\" width=\"300\" height=\"225\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">(Thinkstock)\u003c/figcaption>\u003c/figure>\n\u003cp>Now the \u003ca href=\"http://ci.berkeley.ca.us/prc/\">Berkeley Police Review Commission\u003c/a> wants to know exactly how Moore died and what it might mean for the way the department deals with transgender people and with the mentally ill. On Wednesday night the commission voted unanimously to investigate the case.\u003c/p>\n\u003cp>But even before it started, the investigation has run into serious obstacles. The police are conducting their own investigation, and a Berkeley ordinance prevents a commission investigation from beginning until criminal investigations are complete.\u003c/p>\n\u003cp>“It will be stayed by our regulations pending the investigation by the Berkeley Police Department, which is a little ridiculous,” Commissioner Seth Morris said. “But it sounds like that’s what our regulations are. Until we rewrite the book, that’s where we are.”\u003c!--more-->\u003c/p>\n\u003cp>The commission did file a formal complaint, the first step toward an investigation. The complaint had to be filed within 90 days of the incident.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>Berkeley Police Department has released few details about officers’ response to Moore’s apartment. Berkeley Police Chief Michael Meehan said three official investigations are pending – one criminal, one internal policy and training, and a third investigation into Moore’s cause of death by the \u003ca href=\"https://www.alamedacountysheriff.org/cws_coroners.php\">Alameda County Coroner\u003c/a>.\u003c/p>\n\u003cp>The police have also refused to release basic information about the nature of officers’ encounter with Moore, citing their ongoing investigations. A Feb. 13 department \u003ca href=\"http://www.ci.berkeley.ca.us/uploadedFiles/Police/Level_3_-_General/Subject%20Dies%20Following%20Struggle%20With%20Police.pdf\">press release\u003c/a> said police responded to a disturbance at Moore’s downtown Berkeley apartment, and Moore “became increasingly uncooperative to the officer’s verbal commands and began to scream and violently resist.” Officer’s struggled with Moore, and then placed her “in restraints.” They later determined she had stopped breathing and initiated CPR.\u003c/p>\n\u003cp>The account raised a lot of questions for Moore’s family and friends, who often refer to Kayla by her given name Xavier and use the male pronoun.\u003c/p>\n\u003cp>Moore’s sister, Maria Moore, said Berkeley Police knew Moore’s history.\u003c/p>\n\u003cp>“Berkeley was well aware of Xavier’s issues,” she said. “I don’t know the circumstances that happened that night, but mental health wasn’t there for him. They needed that aspect to help calm him down, to help communicate with him. You’re dealing with someone who’s paranoid, who trusts no one, and you have the police there?”\u003c/p>\n\u003cp>“He had his issues, psychiatric and some drug addiction issues, but he was a gentle soul,” said Carl Butler, the longtime boyfriend of Moore’s sister. “He spent more time taking care of other people than he did himself. Unless prompted, he was never aggressive, which leads to so many questions about the actions of the Berkeley PD that night.”\u003c/p>\n\u003cp>At the meeting, Butler pressed Meehan on the fact that officers who responded to Moore’s apartment have been removed from administrative leave and are back on their beats, but Meehan offered no explanation.\u003c/p>\n\u003cp>“My main concern at this point in time, other than the lack of information being shared with us, is the fact that the police officers involved are back on duty, which shows me that there has been an internal investigation completed,” Butler said. “How come the chief couldn’t share findings of that investigation this evening?”\u003c/p>\n\u003cp>Berkeley Police spokeswoman Officer Jennifer Coats said the officers had served the set period of time defined by department policy on administrative leave, and had since been put back on their beats. She did not know how long that period is or who makes the administrative decision to reinstate officers.\u003c/p>\n\u003cp>Maria Moore said her sibling defied stereotypes that may come to mind for people diagnosed with paranoid schizophrenia.\u003c/p>\n\u003cp>“Xavier had a great bubbly personality,” she said. “He was a ditzy bleach blond in a 300 pound black man’s body. He was just so, loving life. He loved everybody. He was just very innocent, childlike.”\u003c/p>\n\u003cp>Meehan refused to offer a timeline to the commission for completing any of the investigations, saying at one point they would have to wait for a complete coroner’s report, which can take more than three months, according to the Coroner’s office.\u003c/p>\n\u003cp>“The coroner’s office doesn’t work for us,” Meehan said to the commission. “They are completely independent, and they operate on the timeline that they operate on. We have spoken with them, but we have no influence over them.”\u003c/p>\n\u003cp>However, a coroner’s office representative, speaking on the condition of anonymity, said Berkeley police requested they share no preliminary information about Moore’s death, including details about the autopsy.\u003c/p>\n\u003cp>The \u003ca href=\"http://www.alcoda.org/\">Alameda County District Attorney’s\u003c/a> office is aware of the police department’s investigations, but the office itself doesn’t automatically review in-custody deaths like they do officer involved shootings that result in a death, the D.A.’s public information officer Teresa Drenick said.\u003c/p>\n\u003cp>Andrea Prichett, a founding member of \u003ca href=\"http://www.berkeleycopwatch.org/\">Berkeley Copwatch\u003c/a> who has been investigating Moore’s death, said the Berkeley Police Department’s lack of transparency is alarming.\u003c/p>\n\u003cp>“The fact is, with the decline in mental health services, police departments across the country have found themselves dealing with mental health crises that they’re not trained to deal with,” she said. “And across the country they’re being dealt with with lethal consequences.”\u003c/p>\n\u003cp>Berkeley Mental Health Commissioner Paul Kealoha-Blake told the police review commission that Berkeley’s strategy regarding mental illness had fallen behind the times, and he advocated a greater commitment to \u003ca href=\"http://www.memphispolice.org/Crisis%20Intervention.htm\">Crisis Intervention Training\u003c/a> for police officers. The CIT model trains officers in de-escalation techniques for confrontations with people who may be mentally ill.\u003c/p>\n\u003cp>Berkeley Police spokeswoman Officer Jennifer Coats said the department now has eight CIT certified officers and are working on expanding the training.\u003c/p>\n\u003cp>[ad floatright]\u003c/p>\n\u003cp>“I’m a real supporter of CIT,” Kealoha-Blake said. “It is my hope that Berkeley not only adopts and works in Crisis Intervention Training but we work at it hard and long and provide a model for how it should work. We’re not there yet.”\u003c/p>\n\n",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>Paranoid, schizophrenic and transgender, Kayla Moore followed a difficult path through life. That path ended abruptly when she died after Berkeley Police took her into custody the night of Feb. 12.\u003c/p>\n\u003cfigure id=\"attachment_92830\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/2013/03/28/berkeley-investigators-probe-police-role-in-transgender-womans-death/police-cruiser-thinkstock-3/\" rel=\"attachment wp-att-92830\">\u003cimg class=\"size-medium wp-image-92830\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/police-cruiser-thinkstock2-300x225.jpg\" alt=\"police cruiser thinkstock\" width=\"300\" height=\"225\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">(Thinkstock)\u003c/figcaption>\u003c/figure>\n\u003cp>Now the \u003ca href=\"http://ci.berkeley.ca.us/prc/\">Berkeley Police Review Commission\u003c/a> wants to know exactly how Moore died and what it might mean for the way the department deals with transgender people and with the mentally ill. On Wednesday night the commission voted unanimously to investigate the case.\u003c/p>\n\u003cp>But even before it started, the investigation has run into serious obstacles. The police are conducting their own investigation, and a Berkeley ordinance prevents a commission investigation from beginning until criminal investigations are complete.\u003c/p>\n\u003cp>“It will be stayed by our regulations pending the investigation by the Berkeley Police Department, which is a little ridiculous,” Commissioner Seth Morris said. “But it sounds like that’s what our regulations are. Until we rewrite the book, that’s where we are.”\u003c!--more-->\u003c/p>\n\u003cp>The commission did file a formal complaint, the first step toward an investigation. The complaint had to be filed within 90 days of the incident.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>Berkeley Police Department has released few details about officers’ response to Moore’s apartment. Berkeley Police Chief Michael Meehan said three official investigations are pending – one criminal, one internal policy and training, and a third investigation into Moore’s cause of death by the \u003ca href=\"https://www.alamedacountysheriff.org/cws_coroners.php\">Alameda County Coroner\u003c/a>.\u003c/p>\n\u003cp>The police have also refused to release basic information about the nature of officers’ encounter with Moore, citing their ongoing investigations. A Feb. 13 department \u003ca href=\"http://www.ci.berkeley.ca.us/uploadedFiles/Police/Level_3_-_General/Subject%20Dies%20Following%20Struggle%20With%20Police.pdf\">press release\u003c/a> said police responded to a disturbance at Moore’s downtown Berkeley apartment, and Moore “became increasingly uncooperative to the officer’s verbal commands and began to scream and violently resist.” Officer’s struggled with Moore, and then placed her “in restraints.” They later determined she had stopped breathing and initiated CPR.\u003c/p>\n\u003cp>The account raised a lot of questions for Moore’s family and friends, who often refer to Kayla by her given name Xavier and use the male pronoun.\u003c/p>\n\u003cp>Moore’s sister, Maria Moore, said Berkeley Police knew Moore’s history.\u003c/p>\n\u003cp>“Berkeley was well aware of Xavier’s issues,” she said. “I don’t know the circumstances that happened that night, but mental health wasn’t there for him. They needed that aspect to help calm him down, to help communicate with him. You’re dealing with someone who’s paranoid, who trusts no one, and you have the police there?”\u003c/p>\n\u003cp>“He had his issues, psychiatric and some drug addiction issues, but he was a gentle soul,” said Carl Butler, the longtime boyfriend of Moore’s sister. “He spent more time taking care of other people than he did himself. Unless prompted, he was never aggressive, which leads to so many questions about the actions of the Berkeley PD that night.”\u003c/p>\n\u003cp>At the meeting, Butler pressed Meehan on the fact that officers who responded to Moore’s apartment have been removed from administrative leave and are back on their beats, but Meehan offered no explanation.\u003c/p>\n\u003cp>“My main concern at this point in time, other than the lack of information being shared with us, is the fact that the police officers involved are back on duty, which shows me that there has been an internal investigation completed,” Butler said. “How come the chief couldn’t share findings of that investigation this evening?”\u003c/p>\n\u003cp>Berkeley Police spokeswoman Officer Jennifer Coats said the officers had served the set period of time defined by department policy on administrative leave, and had since been put back on their beats. She did not know how long that period is or who makes the administrative decision to reinstate officers.\u003c/p>\n\u003cp>Maria Moore said her sibling defied stereotypes that may come to mind for people diagnosed with paranoid schizophrenia.\u003c/p>\n\u003cp>“Xavier had a great bubbly personality,” she said. “He was a ditzy bleach blond in a 300 pound black man’s body. He was just so, loving life. He loved everybody. He was just very innocent, childlike.”\u003c/p>\n\u003cp>Meehan refused to offer a timeline to the commission for completing any of the investigations, saying at one point they would have to wait for a complete coroner’s report, which can take more than three months, according to the Coroner’s office.\u003c/p>\n\u003cp>“The coroner’s office doesn’t work for us,” Meehan said to the commission. “They are completely independent, and they operate on the timeline that they operate on. We have spoken with them, but we have no influence over them.”\u003c/p>\n\u003cp>However, a coroner’s office representative, speaking on the condition of anonymity, said Berkeley police requested they share no preliminary information about Moore’s death, including details about the autopsy.\u003c/p>\n\u003cp>The \u003ca href=\"http://www.alcoda.org/\">Alameda County District Attorney’s\u003c/a> office is aware of the police department’s investigations, but the office itself doesn’t automatically review in-custody deaths like they do officer involved shootings that result in a death, the D.A.’s public information officer Teresa Drenick said.\u003c/p>\n\u003cp>Andrea Prichett, a founding member of \u003ca href=\"http://www.berkeleycopwatch.org/\">Berkeley Copwatch\u003c/a> who has been investigating Moore’s death, said the Berkeley Police Department’s lack of transparency is alarming.\u003c/p>\n\u003cp>“The fact is, with the decline in mental health services, police departments across the country have found themselves dealing with mental health crises that they’re not trained to deal with,” she said. “And across the country they’re being dealt with with lethal consequences.”\u003c/p>\n\u003cp>Berkeley Mental Health Commissioner Paul Kealoha-Blake told the police review commission that Berkeley’s strategy regarding mental illness had fallen behind the times, and he advocated a greater commitment to \u003ca href=\"http://www.memphispolice.org/Crisis%20Intervention.htm\">Crisis Intervention Training\u003c/a> for police officers. 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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>“I’m a real supporter of CIT,” Kealoha-Blake said. “It is my hope that Berkeley not only adopts and works in Crisis Intervention Training but we work at it hard and long and provide a model for how it should work. We’re not there yet.”\u003c/p>\n\n\u003c/div>\u003c/p>",
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"title": "Inmates' Attorneys Battle California Governor Over Prison Oversight",
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"content": "\u003cp>\u003cem>by Don Thompson, Associated Press\u003cbr>\n\u003c/em>\u003c/p>\n\u003cp>SACRAMENTO, Calif. (AP) — A federal judge on Wednesday struggled with how to gauge whether conditions for mentally ill inmates in California prisons have improved enough under federal oversight to return control of the facilities to the state, as Gov. Jerry Brown is seeking.\u003c/p>\n\u003cfigure id=\"attachment_84954\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/2013/01/08/governor-challenges-prison-overcrowding-order/chino-prison-inmates-2/\" rel=\"attachment wp-att-84954\">\u003cimg loading=\"lazy\" decoding=\"async\" class=\"size-full wp-image-84954\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/01/Chino-Prison-inmates.jpg\" alt=\"State prison inmates in Chino (Kevork Djansezian)\" width=\"300\" height=\"202\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">State prison inmates in Chino (Kevork Djansezian)\u003c/figcaption>\u003c/figure>\n\u003cp>Lawyers for California argued in court that after 18 years of federal oversight and billions of dollars in state spending, the care now meets the requirements of the U.S. Constitution. Attorneys for inmates countered that inmates still are dying unnecessarily, prisons remain overcrowded and understaffed, and that the state won’t make needed improvements without court supervision.\u003c/p>\n\u003cp>U.S. District Judge Lawrence Karlton said he was torn by what standard to use in deciding when to end the federal court oversight, which he said has undoubtedly forced California to improve what had been a substandard system.\u003c/p>\n\u003cp>“Clearly, the Constitution does not require perfection,” Karlton said.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>But if perfection is not the test, he said, “at what level can the court, must the court say, Oh, yes, it’s not perfect … but it’s good enough for government work? It’s good enough for the Constitution’s definition of what the government must do.”\u003c!--more-->\u003c/p>\n\u003cp>California Deputy Attorney General Patrick McKinney said that’s exactly the position the state is now in.\u003c/p>\n\u003cp>“The state has never argued that the system is perfect or that it needs to be,” he told the judge. “Federal oversight should not continue unless there is a violation of federal law.”\u003c/p>\n\u003cp>Inmates’ attorney Michael Bien disagreed: “We have established that there are ongoing constitutional violations” he told the judge.\u003c/p>\n\u003cp>California has spent more than $1 billion to build mental health facilities and increase salaries to hire more qualified mental health workers. The state now has more than 1,700 psychiatrists, psychologists, therapists, social workers and nurses to treat more than 32,000 mentally ill inmates. The state now spends $400 million annually on inmates’ mental health care, McKinney told the judge.\u003c/p>\n\u003cp>Yet Bien said more mental health facilities must be built and staffed, while much more must be done to reduce a suicide rate that exceeds the national average for state and federal prisons and worsened last year.\u003c/p>\n\u003cp>“We’re so far from anywhere near perfection, that’s not the issue,” Bien said outside the courtroom. “Things have gotten worse, not better.”\u003c/p>\n\u003cp>The state contends that all the money, resources and effort it has invested in improving the mental health care system proves that it is no longer deliberately indifferent to the needs of mentally ill inmates.\u003c/p>\n\u003cp>“California has among the best prison mental health systems in the nation,” Corrections Secretary Jeffrey Beard said in a statement after the hearing. “It’s time to bring this intrusive and expensive lawsuit…to an end.”\u003c/p>\n\u003cp>Ending the lawsuit is key to the Democratic governor’s attempt to lift a separate court order over prison crowding that otherwise will force the state to reduce its inmate population by nearly 10,000 by year’s end.\u003c/p>\n\u003cp>The order, upheld by the U.S. Supreme Court in 2011, prompted the state to enact Brown’s so-called realignment law, which requires lower-level offenders to serve their sentences in county jails. Since then, the population of the state’s 33 adult prisons has dropped by nearly 25,000 inmates to about 119,000.\u003c/p>\n\u003cp>Karlton said Wednesday that the current prison system is “a substantial improvement over what the court found when it found deliberate indifference initially.”\u003c/p>\n\u003cp>The question is whether the state can prove that the level of care now being provided complies with the Constitution, he said.\u003c/p>\n\u003cp>Court-appointed experts and overseers recently said California still provides substandard care to inmates with mental and physical illnesses. However, experts hired by the state said 13 prisons they visited last year all provided acceptable mental health care.\u003c/p>\n\u003cp>Karlton could refuse to consider the reports by the state’s experts because of what he called a “serious ethical violation.”\u003c/p>\n\u003cp>Attorneys representing inmates complained that they were not notified and were not present when the experts interviewed their mentally ill clients, as required by ethical standards and a previous court order.\u003c/p>\n\u003cp>McKinney said a state expert had mentioned the interviews to one of the inmates’ attorneys, and that the court-appointed special master was told that visits were planned.\u003c/p>\n\u003cp>“We disagree that this was done in secret,” McKinney said.\u003c/p>\n\u003cp>“I don’t want to raise my voice. Assume that I disagree with you. Assume that this is a profound ethical violation,” the judge retorted during the 90-minute hearing.\u003c/p>\n\u003cp>Nonetheless, Karlton said he may still allow the state reports that form the core of the state’s case because the issue is so important.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>Karlton would have to rule on the request for renewed state control by early next month under a legal process Brown set in motion in January. However, he said that doesn’t leave him time to question witnesses and gauge their credibility, so he is searching for a way to extend the deadline.\u003c!--more-->\u003c/p>\n\n",
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"description": "by Don Thompson, Associated Press SACRAMENTO, Calif. (AP) — A federal judge on Wednesday struggled with how to gauge whether conditions for mentally ill inmates in California prisons have improved enough under federal oversight to return control of the facilities to the state, as Gov. Jerry Brown is seeking. Lawyers for California argued in court that after 18 years of federal oversight and billions of dollars in state spending, the care now meets the requirements of the U.S. Constitution. Attorneys for inmates countered that inmates still are dying unnecessarily, prisons remain overcrowded and understaffed, and that the state won't make",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>\u003cem>by Don Thompson, Associated Press\u003cbr>\n\u003c/em>\u003c/p>\n\u003cp>SACRAMENTO, Calif. (AP) — A federal judge on Wednesday struggled with how to gauge whether conditions for mentally ill inmates in California prisons have improved enough under federal oversight to return control of the facilities to the state, as Gov. Jerry Brown is seeking.\u003c/p>\n\u003cfigure id=\"attachment_84954\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/2013/01/08/governor-challenges-prison-overcrowding-order/chino-prison-inmates-2/\" rel=\"attachment wp-att-84954\">\u003cimg loading=\"lazy\" decoding=\"async\" class=\"size-full wp-image-84954\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/01/Chino-Prison-inmates.jpg\" alt=\"State prison inmates in Chino (Kevork Djansezian)\" width=\"300\" height=\"202\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">State prison inmates in Chino (Kevork Djansezian)\u003c/figcaption>\u003c/figure>\n\u003cp>Lawyers for California argued in court that after 18 years of federal oversight and billions of dollars in state spending, the care now meets the requirements of the U.S. Constitution. Attorneys for inmates countered that inmates still are dying unnecessarily, prisons remain overcrowded and understaffed, and that the state won’t make needed improvements without court supervision.\u003c/p>\n\u003cp>U.S. District Judge Lawrence Karlton said he was torn by what standard to use in deciding when to end the federal court oversight, which he said has undoubtedly forced California to improve what had been a substandard system.\u003c/p>\n\u003cp>“Clearly, the Constitution does not require perfection,” Karlton said.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>But if perfection is not the test, he said, “at what level can the court, must the court say, Oh, yes, it’s not perfect … but it’s good enough for government work? It’s good enough for the Constitution’s definition of what the government must do.”\u003c!--more-->\u003c/p>\n\u003cp>California Deputy Attorney General Patrick McKinney said that’s exactly the position the state is now in.\u003c/p>\n\u003cp>“The state has never argued that the system is perfect or that it needs to be,” he told the judge. “Federal oversight should not continue unless there is a violation of federal law.”\u003c/p>\n\u003cp>Inmates’ attorney Michael Bien disagreed: “We have established that there are ongoing constitutional violations” he told the judge.\u003c/p>\n\u003cp>California has spent more than $1 billion to build mental health facilities and increase salaries to hire more qualified mental health workers. The state now has more than 1,700 psychiatrists, psychologists, therapists, social workers and nurses to treat more than 32,000 mentally ill inmates. The state now spends $400 million annually on inmates’ mental health care, McKinney told the judge.\u003c/p>\n\u003cp>Yet Bien said more mental health facilities must be built and staffed, while much more must be done to reduce a suicide rate that exceeds the national average for state and federal prisons and worsened last year.\u003c/p>\n\u003cp>“We’re so far from anywhere near perfection, that’s not the issue,” Bien said outside the courtroom. “Things have gotten worse, not better.”\u003c/p>\n\u003cp>The state contends that all the money, resources and effort it has invested in improving the mental health care system proves that it is no longer deliberately indifferent to the needs of mentally ill inmates.\u003c/p>\n\u003cp>“California has among the best prison mental health systems in the nation,” Corrections Secretary Jeffrey Beard said in a statement after the hearing. “It’s time to bring this intrusive and expensive lawsuit…to an end.”\u003c/p>\n\u003cp>Ending the lawsuit is key to the Democratic governor’s attempt to lift a separate court order over prison crowding that otherwise will force the state to reduce its inmate population by nearly 10,000 by year’s end.\u003c/p>\n\u003cp>The order, upheld by the U.S. Supreme Court in 2011, prompted the state to enact Brown’s so-called realignment law, which requires lower-level offenders to serve their sentences in county jails. Since then, the population of the state’s 33 adult prisons has dropped by nearly 25,000 inmates to about 119,000.\u003c/p>\n\u003cp>Karlton said Wednesday that the current prison system is “a substantial improvement over what the court found when it found deliberate indifference initially.”\u003c/p>\n\u003cp>The question is whether the state can prove that the level of care now being provided complies with the Constitution, he said.\u003c/p>\n\u003cp>Court-appointed experts and overseers recently said California still provides substandard care to inmates with mental and physical illnesses. However, experts hired by the state said 13 prisons they visited last year all provided acceptable mental health care.\u003c/p>\n\u003cp>Karlton could refuse to consider the reports by the state’s experts because of what he called a “serious ethical violation.”\u003c/p>\n\u003cp>Attorneys representing inmates complained that they were not notified and were not present when the experts interviewed their mentally ill clients, as required by ethical standards and a previous court order.\u003c/p>\n\u003cp>McKinney said a state expert had mentioned the interviews to one of the inmates’ attorneys, and that the court-appointed special master was told that visits were planned.\u003c/p>\n\u003cp>“We disagree that this was done in secret,” McKinney said.\u003c/p>\n\u003cp>“I don’t want to raise my voice. Assume that I disagree with you. Assume that this is a profound ethical violation,” the judge retorted during the 90-minute hearing.\u003c/p>\n\u003cp>Nonetheless, Karlton said he may still allow the state reports that form the core of the state’s case because the issue is so important.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>Karlton would have to rule on the request for renewed state control by early next month under a legal process Brown set in motion in January. However, he said that doesn’t leave him time to question witnesses and gauge their credibility, so he is searching for a way to extend the deadline.\u003c!--more-->\u003c/p>\n\n\u003c/div>\u003c/p>",
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"disqusTitle": "DOMA Oral Arguments Explained",
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"content": "\u003cp>U.S. Supreme Court justices heard arguments for almost two hours on the federal Defense of Marriage Act Wednesday morning. The court covered wide ground, once again spending a significant amount of time on the topic of standing. This time the questions centered around whether the Bipartisan Legal Advisory Group (BLAG), under the leadership of House Speaker John Boehner, R-Ohio, had the legal right to sue. As in Proposition 8, the standing question could give the court the option to avoid the case by ruling that it should not have gone through the court system.\u003c/p>\n\u003cfigure id=\"attachment_92735\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/2013/03/27/doma-oral-arguments-explained/visitors-an-employees-arrive-at-the-us-s/\" rel=\"attachment wp-att-92735\">\u003cimg class=\"size-medium wp-image-92735\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/RS2263_SupremeCourt100311-300x205.jpg\" alt=\"Supreme Court (Paul J. Richards/AFP/Getty Images)\" width=\"300\" height=\"205\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Supreme Court (Paul J. Richards/AFP/Getty Images) \u003ccite>(Paul J. Richards/AFP-Getty Images)\u003c/cite>\u003c/figcaption>\u003c/figure>\n\u003cp>The justices also spent time on whether the federal government should be in the marriage business at all, or if that should be left to the states. Several justices also challenged President Obama's 2011 decision to stop upholding DOMA, and what kinds of precedent that sets. Solicitor General Donald Verrilli Jr. often tried to bring up the equal protection clause, and whether it applies to gays and lesbians. However, the court often took that question and went back to federal versus states legal rights.\u003c/p>\n\u003cp>UC Davis Law Professor Vikram Amar discussed the oral arguments with KQED News.\u003c/p>\n\u003cp>\u003cstrong>Standing\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> If one is going to read tea leaves based on the oral argument, it seems as if the court is not inclined to do something huge, in striking down the laws of 40 states that currently prohibit same-sex marriage. My big takeaway from this has always been: The court did not really want to take these cases. … They may end up doing nothing at all, because both cases may get resolved on procedural standing grounds.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>The basic idea is courts exist to decide crisp disputes, not just answer questions everyone wants answered. So unless you have somebody who is a plaintiff who has a lot at stake, and you have a defendant who is an appropriate defendant, then the court simply should not be able to render a ruling.\u003c/p>\n\u003cp>[At question is] whether [BLAG] is an appropriate representative of the Congress that passed the DOMA. Let’s say that the House of Representatives had not stepped in to defend DOMA, say some conservative pro-marriage group did. Now, it is Windsor against the United States, the United States is not defending, the House, the Senate, no one in the government is defending. But someone who likes the DOMA steps in and says, \"I’ll defend it.\" We clearly would not allow a court to resolve that case on the merits because we would not have confidence that that outside group that wants to defend DOMA would do the right kind of job, given that they are not a valid representative of the people and the Congress that passed the DOMA.\u003c!--more-->\u003c/p>\n\u003cblockquote>\u003cp>JUSTICE SOTOMAYOR: Can you tell me where the authorization is here? I know that there is a statute that gives the Senate specifically authorization to intervene and that there was consideration of extending that right to the House. But the appointment of BLAG is strange to me, because it's not in a statute, it's in a House rule.\u003c/p>\n\u003cp>So where -- how does that constitute anything other than a private agreement among some Senators, the House leadership? And where -- from where do they derive the right, the statutory right, to take on the power of representing the House in items outside of the House? I know they control the procedures within the House, but that's a very different step from saying that they can decide who or to create standing in some way, prudential or otherwise, Article III or otherwise.\u003c/p>\n\u003cp>MR. CLEMENT: Well, Justice Sotomayor, I can point you to two places. One is the House rules that are pursuant to the rulemaking authority and approved by the institution. They're approved in every Congress. Rule 2.8.\u003c/p>\n\u003cp>JUSTICE SOTOMAYOR: What other House Rule creates the power of the majority leaders to represent the House outside of the functions of the House?\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Can the President Choose Not to Uphold the Law?\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> Historically [how it works for] the president and the Department of Justice in Washington, D.C., is that when a law is passed by Congress, even over a presidential veto, and is later challenged in court as being unconstitutional, that the executive branch of the United States views it as its job to defend what Congress has done and it will provide a vigorous defense in court. Unless the law is patently unconstitutional and no reasonable person could think there is a defense. So the president over the years has personally defended all sorts of laws he thinks are unconstitutional.\u003c/p>\n\u003cp>President Obama did not follow that general historical practice here, and hasn’t fully explained why this is an appropriate exception. That’s what Chief Justice Roberts and Justice Scalia were frustrated by, because then a statute can die on the vine simply because the President is not enforcing it and yet no court has ever weighed in to invalidate it because there’s no case in which a case could do so. That gives a lot of power and discretion to the president.\u003c/p>\n\u003cp>\u003cem>Chadha\u003c/em> is a case in which Congress passed a law that basically limited the president’s authority and enhanced Congress’s authority. Congress used that authority to deport a man named Mr. Chadha. He objected to this law on the ground that it … was a usurpation of authority by Congress. So, Chadha sued the federal government, the INS who was going to deport him and the president, through the attorney general, agreed with Mr. Chadha…So when the case was litigated you have the same situation you have in Prop. 8 and the DOMA, you have the executive branch on the side of the challenger rather than on the side of defending the legislative enactment. So the question is whether if \u003cem>Chadha\u003c/em> was a case that was appropriate for Supreme Court resolution, why shouldn’t the DOMA case be similar.\u003c/p>\n\u003cp>But there are some important distinctions, so if it wants to [the court] can get rid of the case on standing grounds, and dooesn't have to overrule the \u003cem>Chadha\u003c/em> case, it just has to limit the \u003cem>Chadha\u003c/em> ruling.\u003c/p>\n\u003cblockquote>\u003cp>CHIEF JUSTICE ROBERTS: No, it's not just - it's not unusual. It's totally unprecedented.\u003c/p>\n\u003cp>MR. SRINIVASAN: Well, it's totally unprecedented in one respect, Your Honor. If you look at Chadha -- okay, the second point I'd make. Let me make one point at the outset, though, which is that whether it's totally unusual or largely unusual, I grant you that it doesn't happen. But the reason it doesn't happen is because -- I wouldn't confuse a numerator with a denominator. This set of circumstances just doesn't arise very often.\u003c/p>\n\u003cp>Now, it's true that when this set of circumstances -\u003c/p>\n\u003cp>JUSTICE SCALIA: It has not arisen very often in the past, because in the past, when I was at the Office of Legal Counsel, there was an opinion of the Office of Legal Counsel which says that the Attorney General will defend the laws of the United States, except in two circumstances: Number one, where the basis for the alleged unconstitutionality has to do with presidential powers. When the presidential powers are involved, he's the lawyer for the President. So he can say, we think the statute's unconstitutional, I won't defend it.\u003c/p>\n\u003cp>The second situation is where no possible rational argument could be made in defense of it. Now, neither of those situations exists here. And I'm wondering if we're living in this new world where the Attorney General can simply decide, yeah, it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it, if we're in this new world, I -- I don't want these cases like this to come before this Court all the time.\u003c/p>\n\u003cp>And I think they will come all the time if that's -- if that's -- if that's the new regime in the Justice Department that we're dealing with.\u003c/p>\n\u003cp>…\u003c/p>\n\u003cp>CHIEF JUSTICE ROBERTS: I would have thought your answer would be that the Executive's obligation to execute the law includes the obligation to execute the law consistent with the Constitution. And if he has made a determination that executing the law by enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice.\u003c/p>\n\u003cp>…\u003c/p>\n\u003cp>JUSTICE ALITO: Well, how are you aggrieved? \"Aggrieved\" means that you are deprived of your legal rights. And you don't think that you've been deprived of your legal rights because your rights -- your obligations under the Constitution supercede DOMA, and you haven't been deprived of anything that you're entitled to under the Constitution. So how are you aggrieved?\u003c/p>\n\u003cp>MR. SRINIVASAN: I guess we'd -- I'd subscribe to the aggrievement analysis that the Court made in Chadha at pages 929 to 931 of its opinion. And what the Court said is this: \"When an agency of the United States is a party to a case in which an act of Congress that it administers is held unconstitutional, it is an aggrieved party. The agency's status as an aggrieved party is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.\" That description is on all fours with the circumstances of this case.\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Federalism\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> Would the federal government be stepping on the toes of the states by treating same-sex couples as married, even when those couples were not treated as married in that state? Those are the kinds of questions that really probe this federalism rationale. How much is marriage an exclusive domain of the states? And is the federal government really out of its arena? To say that the federal government always has to defer to the states, or generally defer to the states in these marital arenas would be a big step, but at least is a step that does not resolve the meta-question here about whether the 40-odd states that ban same-sex marriage would have to change what they’re doing.\u003c/p>\n\u003cblockquote>\u003cp>JUSTICE KENNEDY: Well, I think -- I think it is a DOMA problem. The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.\u003c/p>\n\u003cp>…\u003c/p>\n\u003cp>JUSTICE KENNEDY: Well, it applies to over what, 1,100 Federal laws, I think we are saying. So it's not -- it's -- it's -- I think there is quite a bit to your argument that if the tax deduction case, which is specific, whether or not if Congress has the power it can exercise it for the reason that it wants, that it likes some marriage it does like, I suppose it can do that.\u003c/p>\n\u003cp>But when it has 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens' day-to-day life, you are at -- at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.\u003c/p>\n\u003cp>…\u003c/p>\n\u003cp>JUSTICE GINSBURG: They're not -- they're not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question.\u003c/p>\n\u003cp>It's -- it's -- as Justice Kennedy said, 1,100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Equal Protection\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar\u003c/strong>: The equal protection idea in the Constitution, and it’s in the 14\u003csup>th\u003c/sup> Amendment and it’s also in the Fifth Amendment, is not a command that government always treat everybody identically, because that would make no sense. Every law that government passes treats some persons or things than other persons or things. Every law does that.\u003c/p>\n\u003cp>The question is what kind of basis for differentiating people is valid. It’s certainly OK to treat criminals differently than non-criminals; the former go to jail, the latter do not. It’s also certainly not OK to treat ethnic minorities differently than whites without a really strong justification. So why is it OK to treat criminals different than non-criminals, but not OK to treat blacks differently than whites?\u003c/p>\n\u003cp>[ad floatright]\u003c/p>\n\u003cp>Those are the big questions in equal protection and how do they apply to a group like gays and lesbians. Are they more like racial minorities or are they more properly analogous to other groups in society that don’t benefit from any special judicial protection? So the equal protection idea requires the courts figure out which kinds of groups should not be treated differently based on some group characteristic.\u003c/p>\n\u003cblockquote>\u003cp> GENERAL VERRILLI: Well, with respect to Section 3 of DOMA, the problem is an equal protection problem from the point of view of the United States.\u003c/p>\n\u003cp>JUSTICE KAGAN: Yes, but, General, surely the question of what the Federal interests are and whether those Federal interests should take account of the historic State prerogatives in this area is relevant to the equal protection inquiry?\u003c/p>\n\u003cp>GENERAL VERRILLI: It's central to the inquiry, Justice Kagan. I completely agree with that point.\u003c/p>\n\u003cp>CHIEF JUSTICE ROBERTS: Oh, so it would be central to the inquiry if Congress went the other way, too?\u003c/p>\n\u003cp>GENERAL VERRILLI: Well, the difference is what Section 3 does is impose this exclusion from Federal benefits on a class that has undeniably been subject to a history of terrible discrimination on the basis of –\u003c/p>\n\u003cp>CHIEF JUSTICE ROBERTS: I understand that. That's your equal protection argument. It's not very responsive to my concern I'm trying to get an answer to. You don't think federalism concerns come into play at all in this, right?\u003c/p>\u003c/blockquote>\n\n",
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"excerpt": "For almost two hours Supreme Court justices heard arguments on the federal Defense of Marriage Act. The court covered wide ground, once again spending a significant amount of time on the topic of standing. This time the questions were around whether the Bipartisan Legal Advisory Group (BLAG), under the leadership of House Speaker John Boehner, R-Ohio, had the legal right to sue. As in Proposition 8, the standing question could give the court the option to avoid the case by ruling that it should not have gone through the court system.\r\n\r\n\u003cimg class=\"size-medium wp-image-92735\" src=\"http://ww2.kqed.org/news/files/2013/03/RS2263_SupremeCourt100311-300x205.jpg\" alt=\"Supreme Court (Paul J. Richards/AFP/Getty Images)\" width=\"300\" height=\"205\" style=\"padding:10px 10px 10px 10px\" align=\"left\" />\u003c/a> \r\n\r\nThe justices also spent time on whether the federal government should be in the marriage business at all, or if that should be left to the states. Several justices also challenged President Barack Obama's 2011 decision to stop upholding DOMA, and what kinds of precedent that sets. Solicitor General Solicitor General Donald Verrilli Jr. often tried to bring up the equal protection clause, and whether it applies to gays and lesbians. However, the court often took that question and went back to federal versus states legal rights.\r\n\u003ch3>UC Davis Law Professor Vikram Amar discussed the oral arguments with KQED News.\u003c/h3>\r\n\u003cstrong>Standing\u003c/strong>\r\n\r\n\u003cstrong>Amar:\u003c/strong> If one is going to read tea leaves based on the oral argument, it seems as if the court is not inclined to do something huge, in striking down the laws of 40 states that currently prohibit same-sex marriage. My big take-away from this has always been, the court did not really want to take these cases. … They may end up doing nothing at all, because both cases may get resolved on procedural standing grounds.\r\n\r\nThe basic idea is courts exist to decide crisp disputes, not just answer questions everyone wants answered. So unless you have somebody who is a plaintiff who has a lot at stake, and you have a defendant who is an appropriate defendant, then the court simply should not be able to render a ruling.",
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"description": "For almost two hours Supreme Court justices heard arguments on the federal Defense of Marriage Act. The court covered wide ground, once again spending a significant amount of time on the topic of standing. This time the questions were around whether the Bipartisan Legal Advisory Group (BLAG), under the leadership of House Speaker John Boehner, R-Ohio, had the legal right to sue. As in Proposition 8, the standing question could give the court the option to avoid the case by ruling that it should not have gone through the court system.\r\n\r\n \r\n\r\nThe justices also spent time on whether the federal government should be in the marriage business at all, or if that should be left to the states. Several justices also challenged President Barack Obama's 2011 decision to stop upholding DOMA, and what kinds of precedent that sets. Solicitor General Solicitor General Donald Verrilli Jr. often tried to bring up the equal protection clause, and whether it applies to gays and lesbians. However, the court often took that question and went back to federal versus states legal rights.\r\nUC Davis Law Professor Vikram Amar discussed the oral arguments with KQED News.\r\nStanding\r\n\r\nAmar: If one is going to read tea leaves based on the oral argument, it seems as if the court is not inclined to do something huge, in striking down the laws of 40 states that currently prohibit same-sex marriage. My big take-away from this has always been, the court did not really want to take these cases. … They may end up doing nothing at all, because both cases may get resolved on procedural standing grounds.\r\n\r\nThe basic idea is courts exist to decide crisp disputes, not just answer questions everyone wants answered. So unless you have somebody who is a plaintiff who has a lot at stake, and you have a defendant who is an appropriate defendant, then the court simply should not be able to render a ruling.",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>U.S. Supreme Court justices heard arguments for almost two hours on the federal Defense of Marriage Act Wednesday morning. The court covered wide ground, once again spending a significant amount of time on the topic of standing. This time the questions centered around whether the Bipartisan Legal Advisory Group (BLAG), under the leadership of House Speaker John Boehner, R-Ohio, had the legal right to sue. As in Proposition 8, the standing question could give the court the option to avoid the case by ruling that it should not have gone through the court system.\u003c/p>\n\u003cfigure id=\"attachment_92735\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/2013/03/27/doma-oral-arguments-explained/visitors-an-employees-arrive-at-the-us-s/\" rel=\"attachment wp-att-92735\">\u003cimg class=\"size-medium wp-image-92735\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/RS2263_SupremeCourt100311-300x205.jpg\" alt=\"Supreme Court (Paul J. Richards/AFP/Getty Images)\" width=\"300\" height=\"205\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Supreme Court (Paul J. Richards/AFP/Getty Images) \u003ccite>(Paul J. Richards/AFP-Getty Images)\u003c/cite>\u003c/figcaption>\u003c/figure>\n\u003cp>The justices also spent time on whether the federal government should be in the marriage business at all, or if that should be left to the states. Several justices also challenged President Obama's 2011 decision to stop upholding DOMA, and what kinds of precedent that sets. Solicitor General Donald Verrilli Jr. often tried to bring up the equal protection clause, and whether it applies to gays and lesbians. However, the court often took that question and went back to federal versus states legal rights.\u003c/p>\n\u003cp>UC Davis Law Professor Vikram Amar discussed the oral arguments with KQED News.\u003c/p>\n\u003cp>\u003cstrong>Standing\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> If one is going to read tea leaves based on the oral argument, it seems as if the court is not inclined to do something huge, in striking down the laws of 40 states that currently prohibit same-sex marriage. My big takeaway from this has always been: The court did not really want to take these cases. … They may end up doing nothing at all, because both cases may get resolved on procedural standing grounds.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>The basic idea is courts exist to decide crisp disputes, not just answer questions everyone wants answered. So unless you have somebody who is a plaintiff who has a lot at stake, and you have a defendant who is an appropriate defendant, then the court simply should not be able to render a ruling.\u003c/p>\n\u003cp>[At question is] whether [BLAG] is an appropriate representative of the Congress that passed the DOMA. Let’s say that the House of Representatives had not stepped in to defend DOMA, say some conservative pro-marriage group did. Now, it is Windsor against the United States, the United States is not defending, the House, the Senate, no one in the government is defending. But someone who likes the DOMA steps in and says, \"I’ll defend it.\" We clearly would not allow a court to resolve that case on the merits because we would not have confidence that that outside group that wants to defend DOMA would do the right kind of job, given that they are not a valid representative of the people and the Congress that passed the DOMA.\u003c!--more-->\u003c/p>\n\u003cblockquote>\u003cp>JUSTICE SOTOMAYOR: Can you tell me where the authorization is here? I know that there is a statute that gives the Senate specifically authorization to intervene and that there was consideration of extending that right to the House. But the appointment of BLAG is strange to me, because it's not in a statute, it's in a House rule.\u003c/p>\n\u003cp>So where -- how does that constitute anything other than a private agreement among some Senators, the House leadership? And where -- from where do they derive the right, the statutory right, to take on the power of representing the House in items outside of the House? I know they control the procedures within the House, but that's a very different step from saying that they can decide who or to create standing in some way, prudential or otherwise, Article III or otherwise.\u003c/p>\n\u003cp>MR. CLEMENT: Well, Justice Sotomayor, I can point you to two places. One is the House rules that are pursuant to the rulemaking authority and approved by the institution. They're approved in every Congress. Rule 2.8.\u003c/p>\n\u003cp>JUSTICE SOTOMAYOR: What other House Rule creates the power of the majority leaders to represent the House outside of the functions of the House?\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Can the President Choose Not to Uphold the Law?\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> Historically [how it works for] the president and the Department of Justice in Washington, D.C., is that when a law is passed by Congress, even over a presidential veto, and is later challenged in court as being unconstitutional, that the executive branch of the United States views it as its job to defend what Congress has done and it will provide a vigorous defense in court. Unless the law is patently unconstitutional and no reasonable person could think there is a defense. So the president over the years has personally defended all sorts of laws he thinks are unconstitutional.\u003c/p>\n\u003cp>President Obama did not follow that general historical practice here, and hasn’t fully explained why this is an appropriate exception. That’s what Chief Justice Roberts and Justice Scalia were frustrated by, because then a statute can die on the vine simply because the President is not enforcing it and yet no court has ever weighed in to invalidate it because there’s no case in which a case could do so. That gives a lot of power and discretion to the president.\u003c/p>\n\u003cp>\u003cem>Chadha\u003c/em> is a case in which Congress passed a law that basically limited the president’s authority and enhanced Congress’s authority. Congress used that authority to deport a man named Mr. Chadha. He objected to this law on the ground that it … was a usurpation of authority by Congress. So, Chadha sued the federal government, the INS who was going to deport him and the president, through the attorney general, agreed with Mr. Chadha…So when the case was litigated you have the same situation you have in Prop. 8 and the DOMA, you have the executive branch on the side of the challenger rather than on the side of defending the legislative enactment. So the question is whether if \u003cem>Chadha\u003c/em> was a case that was appropriate for Supreme Court resolution, why shouldn’t the DOMA case be similar.\u003c/p>\n\u003cp>But there are some important distinctions, so if it wants to [the court] can get rid of the case on standing grounds, and dooesn't have to overrule the \u003cem>Chadha\u003c/em> case, it just has to limit the \u003cem>Chadha\u003c/em> ruling.\u003c/p>\n\u003cblockquote>\u003cp>CHIEF JUSTICE ROBERTS: No, it's not just - it's not unusual. It's totally unprecedented.\u003c/p>\n\u003cp>MR. SRINIVASAN: Well, it's totally unprecedented in one respect, Your Honor. If you look at Chadha -- okay, the second point I'd make. Let me make one point at the outset, though, which is that whether it's totally unusual or largely unusual, I grant you that it doesn't happen. But the reason it doesn't happen is because -- I wouldn't confuse a numerator with a denominator. This set of circumstances just doesn't arise very often.\u003c/p>\n\u003cp>Now, it's true that when this set of circumstances -\u003c/p>\n\u003cp>JUSTICE SCALIA: It has not arisen very often in the past, because in the past, when I was at the Office of Legal Counsel, there was an opinion of the Office of Legal Counsel which says that the Attorney General will defend the laws of the United States, except in two circumstances: Number one, where the basis for the alleged unconstitutionality has to do with presidential powers. When the presidential powers are involved, he's the lawyer for the President. So he can say, we think the statute's unconstitutional, I won't defend it.\u003c/p>\n\u003cp>The second situation is where no possible rational argument could be made in defense of it. Now, neither of those situations exists here. And I'm wondering if we're living in this new world where the Attorney General can simply decide, yeah, it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it, if we're in this new world, I -- I don't want these cases like this to come before this Court all the time.\u003c/p>\n\u003cp>And I think they will come all the time if that's -- if that's -- if that's the new regime in the Justice Department that we're dealing with.\u003c/p>\n\u003cp>…\u003c/p>\n\u003cp>CHIEF JUSTICE ROBERTS: I would have thought your answer would be that the Executive's obligation to execute the law includes the obligation to execute the law consistent with the Constitution. And if he has made a determination that executing the law by enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice.\u003c/p>\n\u003cp>…\u003c/p>\n\u003cp>JUSTICE ALITO: Well, how are you aggrieved? \"Aggrieved\" means that you are deprived of your legal rights. And you don't think that you've been deprived of your legal rights because your rights -- your obligations under the Constitution supercede DOMA, and you haven't been deprived of anything that you're entitled to under the Constitution. So how are you aggrieved?\u003c/p>\n\u003cp>MR. SRINIVASAN: I guess we'd -- I'd subscribe to the aggrievement analysis that the Court made in Chadha at pages 929 to 931 of its opinion. And what the Court said is this: \"When an agency of the United States is a party to a case in which an act of Congress that it administers is held unconstitutional, it is an aggrieved party. The agency's status as an aggrieved party is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.\" That description is on all fours with the circumstances of this case.\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Federalism\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> Would the federal government be stepping on the toes of the states by treating same-sex couples as married, even when those couples were not treated as married in that state? Those are the kinds of questions that really probe this federalism rationale. How much is marriage an exclusive domain of the states? And is the federal government really out of its arena? To say that the federal government always has to defer to the states, or generally defer to the states in these marital arenas would be a big step, but at least is a step that does not resolve the meta-question here about whether the 40-odd states that ban same-sex marriage would have to change what they’re doing.\u003c/p>\n\u003cblockquote>\u003cp>JUSTICE KENNEDY: Well, I think -- I think it is a DOMA problem. The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.\u003c/p>\n\u003cp>…\u003c/p>\n\u003cp>JUSTICE KENNEDY: Well, it applies to over what, 1,100 Federal laws, I think we are saying. So it's not -- it's -- it's -- I think there is quite a bit to your argument that if the tax deduction case, which is specific, whether or not if Congress has the power it can exercise it for the reason that it wants, that it likes some marriage it does like, I suppose it can do that.\u003c/p>\n\u003cp>But when it has 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens' day-to-day life, you are at -- at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.\u003c/p>\n\u003cp>…\u003c/p>\n\u003cp>JUSTICE GINSBURG: They're not -- they're not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question.\u003c/p>\n\u003cp>It's -- it's -- as Justice Kennedy said, 1,100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Equal Protection\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar\u003c/strong>: The equal protection idea in the Constitution, and it’s in the 14\u003csup>th\u003c/sup> Amendment and it’s also in the Fifth Amendment, is not a command that government always treat everybody identically, because that would make no sense. Every law that government passes treats some persons or things than other persons or things. Every law does that.\u003c/p>\n\u003cp>The question is what kind of basis for differentiating people is valid. It’s certainly OK to treat criminals differently than non-criminals; the former go to jail, the latter do not. It’s also certainly not OK to treat ethnic minorities differently than whites without a really strong justification. So why is it OK to treat criminals different than non-criminals, but not OK to treat blacks differently than whites?\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>Those are the big questions in equal protection and how do they apply to a group like gays and lesbians. Are they more like racial minorities or are they more properly analogous to other groups in society that don’t benefit from any special judicial protection? So the equal protection idea requires the courts figure out which kinds of groups should not be treated differently based on some group characteristic.\u003c/p>\n\u003cblockquote>\u003cp> GENERAL VERRILLI: Well, with respect to Section 3 of DOMA, the problem is an equal protection problem from the point of view of the United States.\u003c/p>\n\u003cp>JUSTICE KAGAN: Yes, but, General, surely the question of what the Federal interests are and whether those Federal interests should take account of the historic State prerogatives in this area is relevant to the equal protection inquiry?\u003c/p>\n\u003cp>GENERAL VERRILLI: It's central to the inquiry, Justice Kagan. I completely agree with that point.\u003c/p>\n\u003cp>CHIEF JUSTICE ROBERTS: Oh, so it would be central to the inquiry if Congress went the other way, too?\u003c/p>\n\u003cp>GENERAL VERRILLI: Well, the difference is what Section 3 does is impose this exclusion from Federal benefits on a class that has undeniably been subject to a history of terrible discrimination on the basis of –\u003c/p>\n\u003cp>CHIEF JUSTICE ROBERTS: I understand that. That's your equal protection argument. It's not very responsive to my concern I'm trying to get an answer to. You don't think federalism concerns come into play at all in this, right?\u003c/p>\u003c/blockquote>\n\n\u003c/div>\u003c/p>",
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"content": "\u003cp>On Wednesday morning the U.S. Supreme Court heard arguments on whether the federal Defense of Marriage Act is unconstitutional.\u003c/p>\n\u003cp>\u003cstrong>\u003ca href=\"https://soundcloud.com/kqed/supreme-court-doma-oral\">Listen\u003c/a>\u003c/strong> to the hearing:\u003c/p>\n\u003cp>\u003ciframe src=\"https://w.soundcloud.com/player/?url=http%3A%2F%2Fapi.soundcloud.com%2Ftracks%2F85193343\" frameborder=\"no\" scrolling=\"no\" width=\"100%\" height=\"166\">\u003c/iframe>\u003c/p>\n\u003cp>\u003cstrong>\u003ca href=\"http://www.scribd.com/doc/132670145/DOMA-Oral-Arguments-at-the-Supreme-Court\">Read\u003c/a>\u003c/strong> the transcript:\u003c/p>\n\u003cp>\u003ciframe src=\"http://www.scribd.com/embeds/132670145/content?start_page=1&view_mode=scroll\" frameborder=\"0\" scrolling=\"no\" width=\"100%\" height=\"600\">\u003c/iframe>\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>\u003cstrong>\u003ca href=\"http://ww2.kqed.org/news/2013/03/26/audio-transcript-of-supreme-court-proposition-8-oral-arguments/\">Proposition 8 Supreme Court Hearing Audio, Transcript\u003c/a>\u003c/strong>\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>\u003cstrong>\u003ca href=\"http://www.supremecourt.gov/docket/DOMPRP8.aspx\">Read\u003c/a>\u003c/strong> all of the case filings in the Proposition 8 and DOMA cases.\u003c/p>\n\n",
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"excerpt": "On Wednesday morning the Supreme Court heard arguments on whether the federal Defense of Marriage Act is unconstitutional.\r\n\r\n\u003cstrong>\u003ca href=\"https://soundcloud.com/kqed/supreme-court-doma-oral\">Listen\u003c/a>\u003c/strong> to the hearing:\r\n\u003ciframe width=\"100%\" height=\"166\" scrolling=\"no\" frameborder=\"no\" src=\"https://w.soundcloud.com/player/?url=http%3A%2F%2Fapi.soundcloud.com%2Ftracks%2F85193343\">\u003c/iframe>\r\n\r\n\u003cstrong>\u003ca href=\"http://www.scribd.com/doc/132670145/DOMA-Oral-Arguments-at-the-Supreme-Court\">Read\u003c/a>\u003c/strong> the transcript:\r\n\u003ciframe src=\"http://www.scribd.com/embeds/132670145/content?start_page=1&view_mode=scroll\" scrolling=\"no\" width=\"100%\" height=\"600\" frameborder=\"0\">\u003c/iframe>\r\n\r\n\u003cstrong>\u003ca href=\"http://www.supremecourt.gov/docket/DOMPRP8.aspx\">Read\u003c/a>\u003c/strong> all the of the case filings in the Proposition 8 and DOMA cases.",
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"content": "\u003cp>After a long and winding road, Proposition 8 had its day at the U.S. Supreme Court on Tuesday. For more than an hour, the justices of the high court grilled attorneys on California's same-sex marriage ban.\u003c/p>\n\u003cfigure id=\"attachment_92585\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/2013/03/26/proposition-8-oral-arguments-explained/us-chief-justice-john-roberts-c-front-2/\" rel=\"attachment wp-att-92585\">\u003cimg class=\"size-medium wp-image-92585\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/912367741-300x206.jpg\" alt=\"File photo of Supreme Court justices. (Mandel Ngan/Getty Images)\" width=\"300\" height=\"206\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">File photo of Supreme Court justices. (Mandel Ngan/Getty Images)\u003c/figcaption>\u003c/figure>\n\u003cp>The \u003ca href=\"http://ww2.kqed.org/news/2013/03/26/audio-transcript-of-supreme-court-proposition-8-oral-arguments/\" target=\"_blank\">oral arguments\u003c/a> were dominated by the question of standing, which focused on whether the authors of Prop. 8 have the legal right to defend the measure in court when the state refused to do so. Justices also grappled over the meaning of marriage and what role the court system should have in changing long-held traditions.\u003c/p>\n\u003cp>The questions that justices ask can shed light on their concerns and how they might rule. KQED spoke with Vikram Amar, a professor of law at UC Davis, about what certain arguments could mean.\u003c/p>\n\u003cp>\u003cstrong>Standing\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> I thought there were three, maybe four, maybe five justices already who expressed significant skepticism about whether the sponsors have standing to defend Prop. 8.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>Only Justice Scalia seemed to ask questions that supported the standing of the sponsors. But Justice Ginsburg and Justice Kagan and Justice Roberts and then, at the end, Justice Kennedy, when he said there was a substantial question over standing. All of them intimated that this may not be an appropriate vehicle for federal courts to weigh in, because the sponsors don’t really have a direct tie to the people and voters of California as to be able to step in their shoes, and speak for the state, when the attorney general and the governor declined to defend.\u003c/p>\n\u003cp>There is at least a very good chance that this case will get resolved on standing grounds.\u003c/p>\n\u003cp>Interestingly, the liberal justices, as I said, Justice Ginsburg, Justice Kagan, Justice Breyer, asked a lot of questions that suggested that they were skeptical of the sponsor standing. That is a signal to me that they would rather let Prop. 8 die a California-specific death on standing grounds, because if there’s no standing, then basically the Ninth Circuit decision is wiped out, and the plaintiffs will win a narrow victory in the district court. But, not necessarily [a win] that spills over to affect people from any other state, and maybe not even other same-sex couples in California, at least not for the moment.\u003c/p>\n\u003cblockquote>\u003cp>CHIEF JUSTICE ROBERTS: Mr. Cooper, we have jurisdictional and merits issues here. Maybe it'd be best if you could begin with the standing issue.\u003c/p>\n\u003cp>MR. COOPER: I'd be happy to, Mr. Chief Justice. Your Honor, the official proponents of Proposition 8, the initiative, have standing to defend that measure before this Court as representatives of the people and the State of California to defend the validity of a measure that they brought forward.\u003c/p>\n\u003cp>JUSTICE GINSBURG: Have we ever granted standing to proponents of ballot initiatives?\u003cbr>\n\u003c!--more-->\u003cbr>\nMR. COOPER: No, Your Honor, the Court has not done that. But the Court has never had before it a clear expression from a unanimous State's high court that --\u003c/p>\n\u003cp>...\u003c/p>\n\u003cp>JUSTICE KAGAN: -- could -- could the State assign to any citizen the rights to defend a judgment of this kind?\u003c/p>\n\u003cp>MR. COOPER: Justice Kagan, that would be a -- a very tough question. It's -- it's by no means the question before the Court, because -- because it isn't any citizen, it's -- it is the -- it is the official proponents that have a specific and -- and carefully detailed --\u003c/p>\n\u003cp>JUSTICE KAGAN: Well, I just -- if you would on the hypothetical: Could a State just assign to\u003cbr>\nanybody the ability to do this?\u003c/p>\n\u003cp>MR. COOPER: Your Honor, I think it very well might. It very well might be able to decide that any citizen could step forward and represent the interests of the State and the people in that State...\u003c/p>\n\u003cp>...\u003c/p>\n\u003cp>JUSTICE KENNEDY: But you're -- you're doing so in a -- in a case where the opinion is very narrow. Basically that once the State goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on -- on standing. I just wonder if -- if the case was properly granted.\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Defining Marriage\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> When it comes to the merits, I think there was more of a full-throated rejection of the plaintiffs' challenge to Prop. 8 by the conservative justices, especially Justice Scalia, than there was a full-throated embrace of a national right to same sex-marriage by the liberals.\u003c/p>\n\u003cp>It’s true that Justice Kagan asked (Yes on 8 Attorney) Chuck Cooper some difficult questions about regulation of people who are over 55 years of age and how does that relate to procreation, etc. But I didn’t hear the liberals kind of explain a national equal protection right, which they may embrace, but they didn’t use oral argument to put it out there the way Justice Scalia and other conservative justices kind of belittled the claim brought by the plaintiffs.\u003c/p>\n\u003cp>One of the things the arguments show -- this procreation defense of bans on same-sex marriage -- doesn’t really work that easily. It lends itself to a lot of easy, hypothetical rejoinders. And I think that the conservative justices who think that Prop. 8 is appropriate for the people of California to have passed, they in their questions, recast the issue focusing not just narrowly on procreation, but on caution more generally.\u003c/p>\n\u003cblockquote>\u003cp>JUSTICE BREYER: Am I not clear? Look, you said that the problem is marriage; that it is an institution that furthers procreation.\u003c/p>\n\u003cp>MR. COOPER: Yes, Your Honor.\u003c/p>\n\u003cp>JUSTICE BREYER: And the reason there was adoption, but that doesn't apply to California. So imagine I wall off California and I'm looking just there, where you say that doesn't apply. Now, what happens to your argument about the institution of marriage as a tool towards procreation? Given the fact that, in California, too, couples that aren't gay but can't have children get married all the time.\u003c/p>\n\u003cp>MR. COOPER: Yes, Your Honor. The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples. Suppose, in turn --\u003c/p>\n\u003cp>JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?\u003c/p>\n\u003cp>MR. COOPER: No, Your Honor, it would not be constitutional.\u003c/p>\n\u003cp>JUSTICE KAGAN: Because that's the same State interest, I would think, you know. If you are over the age of 55, you don't help us serve the Government's interest in regulating procreation through marriage. So why is that different?\u003c/p>\n\u003cp>MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples -- both parties to the couple are infertile, and the traditional --\u003c/p>\n\u003cp>\u003cem>- Laughter -\u003c/em>\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Is Marriage a Fundamental Right?\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> \u003cem>Loving\u003c/em> was a 1967 decision by the U.S. Supreme Court to strike down Virginia’s ban on interracial marriage. It kept coming up because the challengers to Prop. 8 have really evoked \u003cem>Loving\u003c/em> and the interracial marriage setting as an analogy: That just as it was legitimate for the court to tell states that they could not ban marriages between races, so, too, it’s appropriate to tell states that they cannot ban marriages between gays and lesbians.\u003c/p>\n\u003cp>The people who oppose the challenge, the defenders of Prop. 8, Chuck Cooper, they really think that \u003cem>Loving\u003c/em> is more a case about race than it was about marriage. They also would note that in 1967, when the Supreme Court decided \u003cem>Loving\u003c/em>, there were only about a dozen or so states that continued to prohibit interracial marriage. Whereas 40 states or so continue to prohibit same-sex marriage. So the backdrop against which the Supreme Court nationalized a right to interracial marriage in 1967 might be considered different than today’s backdrop. Something the court kind of hinted at a number of times when they talked about whether this issue should percolate a little in the states before the Supreme Court weighs in, in a definitive fashion.\u003c/p>\n\u003cblockquote>\u003cp>CHIEF JUSTICE ROBERTS: Same-sex couples have every other right, it's just about the label.\u003c/p>\n\u003cp>MR. OLSON: The label \"marriage\" means something. Even our opponents --\u003c/p>\n\u003cp>CHIEF JUSTICE ROBERTS: If you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend. And that's it seems to me what the -- what supporters of Proposition 8 are saying here. You're -- all you're interested in is the label and you insist on changing the definition of the label.\u003c/p>\n\u003cp>MR. OLSON: It is like you were to say you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very, very critical. You could have said in the \u003cem>Loving\u003c/em> case, what -- you can't get married, but you can have an interracial union. Everyone would know that that was wrong, that the -- marriage has a status, recognition, support, and you -- if you read the test, you know --\u003c/p>\n\u003cp>CHIEF JUSTICE ROBERTS: How do we know -- how do we know that that's the reason, or a necessary part of the reason, that we've recognized marriage as a fundamental right? That's -- you've emphasized that and you've said, well, it's because of the emotional commitment. Maybe it is the procreative aspect that makes it a fundamental right.\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Why Now?\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> I think the best defense of Prop. 8, if there is a good defense, is that states have the right to be cautious when they’re tampering with an institution that’s 2,000 or more years old. Justice Kennedy talked about how long marriage has remained the way it is. Justice Alito said, you know, same sex-marriage is a newer institution than cell phones or the Internet, and you’re telling us we have to nationalize it right now?\u003c/p>\n\u003cblockquote>\u003cp>JUSTICE ALITO: You want us to assess the effects of same-sex marriage, the potential effects on -- of same-sex marriage, the potential -- the effects of Proposition 8. But what is your response to the argument which has already been mentioned about the need to be cautious in light of the newness of the -- the concept of -- of same-sex marriage. The one thing that the parties in this case seem to agree on is that marriage is very important. It's thought to be a fundamental building block of society and its preservation essential for the preservation of society. Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn't a lot of data about its effect. And it may turn out to be a -- a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe. But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we -- we are not -- we do not have the ability to see the future. On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>When Did Same-Sex Marriage Become Illegal?\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> The rhetorical point Justice Scalia is trying to make is that if we would say that it did not violate the Constitution to prohibit same-sex marriage 50 years ago, and it does so today, isn’t it odd that the meaning of the Constitution, whose words haven’t changed since 1868, would evolve?\u003c/p>\n\u003cp>[ad floatright]\u003c/p>\n\u003cp>(Scalia) is what we call an originalist and textualist. He wants to interpret the equal protection clause of the 14th Amendment by reference to what it meant in 1868. Not by reference to modern notions of social meaning and social science.\u003c/p>\n\u003cblockquote>\u003cp>JUSTICE SCALIA: Was it always unconstitutional?\u003c/p>\n\u003cp>MR. OLSON: It was constitutional when we -- as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that --\u003c/p>\n\u003cp>JUSTICE SCALIA: I see. When did that happen? When did that happen?\u003c/p>\n\u003cp>MR. OLSON: There's no specific date in time. This is an evolutionary cycle.\u003c/p>\n\u003cp>JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then --\u003c/p>\n\u003cp>MR. OLSON: Because the case that's before you --\u003c/p>\n\u003cp>JUSTICE SCALIA: -- if you can't give me a date when the Constitution changes?\u003c/p>\n\u003cp>MR. OLSON: -- in -- the case that's before you today, California decided -- the citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California, and then the Californians decided in Proposition 8, wait a minute, we don't want those people to be able to get married.\u003c/p>\n\u003cp>CHIEF JUSTICE ROBERTS: So -- so your case -- your case would be different if Proposition 8 was enacted into law prior to the California Supreme Court decision?\u003c/p>\n\u003cp>MR. OLSON: I would make -- I would make the -- also would make the -- that distinguishes it in one respect. But also -- also -- I would also make the argument, Mr. Chief Justice, that we are -- this -- marriage is a fundamental right and we are making a classification based upon a status of individuals, which this Court has repeatedly decided that gays and lesbians are defined by their status. There is no question about that.\u003c/p>\u003c/blockquote>\n\n",
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"excerpt": "After a long and winding road, Proposition 8 had its day at the U.S. Supreme Court on Tuesday. For more than an hour, the justices of the high court grilled attorneys on California's same-sex marriage ban.\r\n\r\n\u003cimg class=\"size-medium wp-image-92585\" src=\"http://ww2.kqed.org/news/files/2013/03/912367741-300x206.jpg\" alt=\"File photo of Supreme Court justices. (Mandel Ngan/Getty Images)\" width=\"300\" height=\"206\" style=\"padding:10px 10px 10px 10px\" align=\"left\" />\u003c/a>\r\n\r\nThe \u003ca href=\"http://ww2.kqed.org/news/2013/03/26/audio-transcript-of-supreme-court-proposition-8-oral-arguments/\" target=\"_blank\">oral arguments\u003c/a> were dominated by the question of standing, which focused on whether the authors of Prop. 8 have the legal right to defend the measure in court when the state refused to do so. Justices also grappled over the meaning of marriage and what role the court system should have in changing long-held traditions.\r\n\r\nThe questions that justices ask can shed light on their concerns and how they might rule. KQED spoke with Vikram Amar, a professor of law at UC Davis, about what certain arguments could mean.\r\n\r\n\u003cstrong>Standing\u003c/strong>\r\n\r\n\u003cstrong>Amar:\u003c/strong> I thought there were three, maybe four, maybe five justices already who expressed significant skepticism about whether the sponsors have standing to defend Prop. 8.",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>After a long and winding road, Proposition 8 had its day at the U.S. Supreme Court on Tuesday. For more than an hour, the justices of the high court grilled attorneys on California's same-sex marriage ban.\u003c/p>\n\u003cfigure id=\"attachment_92585\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/2013/03/26/proposition-8-oral-arguments-explained/us-chief-justice-john-roberts-c-front-2/\" rel=\"attachment wp-att-92585\">\u003cimg class=\"size-medium wp-image-92585\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/912367741-300x206.jpg\" alt=\"File photo of Supreme Court justices. (Mandel Ngan/Getty Images)\" width=\"300\" height=\"206\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">File photo of Supreme Court justices. (Mandel Ngan/Getty Images)\u003c/figcaption>\u003c/figure>\n\u003cp>The \u003ca href=\"http://ww2.kqed.org/news/2013/03/26/audio-transcript-of-supreme-court-proposition-8-oral-arguments/\" target=\"_blank\">oral arguments\u003c/a> were dominated by the question of standing, which focused on whether the authors of Prop. 8 have the legal right to defend the measure in court when the state refused to do so. Justices also grappled over the meaning of marriage and what role the court system should have in changing long-held traditions.\u003c/p>\n\u003cp>The questions that justices ask can shed light on their concerns and how they might rule. KQED spoke with Vikram Amar, a professor of law at UC Davis, about what certain arguments could mean.\u003c/p>\n\u003cp>\u003cstrong>Standing\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> I thought there were three, maybe four, maybe five justices already who expressed significant skepticism about whether the sponsors have standing to defend Prop. 8.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>Only Justice Scalia seemed to ask questions that supported the standing of the sponsors. But Justice Ginsburg and Justice Kagan and Justice Roberts and then, at the end, Justice Kennedy, when he said there was a substantial question over standing. All of them intimated that this may not be an appropriate vehicle for federal courts to weigh in, because the sponsors don’t really have a direct tie to the people and voters of California as to be able to step in their shoes, and speak for the state, when the attorney general and the governor declined to defend.\u003c/p>\n\u003cp>There is at least a very good chance that this case will get resolved on standing grounds.\u003c/p>\n\u003cp>Interestingly, the liberal justices, as I said, Justice Ginsburg, Justice Kagan, Justice Breyer, asked a lot of questions that suggested that they were skeptical of the sponsor standing. That is a signal to me that they would rather let Prop. 8 die a California-specific death on standing grounds, because if there’s no standing, then basically the Ninth Circuit decision is wiped out, and the plaintiffs will win a narrow victory in the district court. But, not necessarily [a win] that spills over to affect people from any other state, and maybe not even other same-sex couples in California, at least not for the moment.\u003c/p>\n\u003cblockquote>\u003cp>CHIEF JUSTICE ROBERTS: Mr. Cooper, we have jurisdictional and merits issues here. Maybe it'd be best if you could begin with the standing issue.\u003c/p>\n\u003cp>MR. COOPER: I'd be happy to, Mr. Chief Justice. Your Honor, the official proponents of Proposition 8, the initiative, have standing to defend that measure before this Court as representatives of the people and the State of California to defend the validity of a measure that they brought forward.\u003c/p>\n\u003cp>JUSTICE GINSBURG: Have we ever granted standing to proponents of ballot initiatives?\u003cbr>\n\u003c!--more-->\u003cbr>\nMR. COOPER: No, Your Honor, the Court has not done that. But the Court has never had before it a clear expression from a unanimous State's high court that --\u003c/p>\n\u003cp>...\u003c/p>\n\u003cp>JUSTICE KAGAN: -- could -- could the State assign to any citizen the rights to defend a judgment of this kind?\u003c/p>\n\u003cp>MR. COOPER: Justice Kagan, that would be a -- a very tough question. It's -- it's by no means the question before the Court, because -- because it isn't any citizen, it's -- it is the -- it is the official proponents that have a specific and -- and carefully detailed --\u003c/p>\n\u003cp>JUSTICE KAGAN: Well, I just -- if you would on the hypothetical: Could a State just assign to\u003cbr>\nanybody the ability to do this?\u003c/p>\n\u003cp>MR. COOPER: Your Honor, I think it very well might. It very well might be able to decide that any citizen could step forward and represent the interests of the State and the people in that State...\u003c/p>\n\u003cp>...\u003c/p>\n\u003cp>JUSTICE KENNEDY: But you're -- you're doing so in a -- in a case where the opinion is very narrow. Basically that once the State goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on -- on standing. I just wonder if -- if the case was properly granted.\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Defining Marriage\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> When it comes to the merits, I think there was more of a full-throated rejection of the plaintiffs' challenge to Prop. 8 by the conservative justices, especially Justice Scalia, than there was a full-throated embrace of a national right to same sex-marriage by the liberals.\u003c/p>\n\u003cp>It’s true that Justice Kagan asked (Yes on 8 Attorney) Chuck Cooper some difficult questions about regulation of people who are over 55 years of age and how does that relate to procreation, etc. But I didn’t hear the liberals kind of explain a national equal protection right, which they may embrace, but they didn’t use oral argument to put it out there the way Justice Scalia and other conservative justices kind of belittled the claim brought by the plaintiffs.\u003c/p>\n\u003cp>One of the things the arguments show -- this procreation defense of bans on same-sex marriage -- doesn’t really work that easily. It lends itself to a lot of easy, hypothetical rejoinders. And I think that the conservative justices who think that Prop. 8 is appropriate for the people of California to have passed, they in their questions, recast the issue focusing not just narrowly on procreation, but on caution more generally.\u003c/p>\n\u003cblockquote>\u003cp>JUSTICE BREYER: Am I not clear? Look, you said that the problem is marriage; that it is an institution that furthers procreation.\u003c/p>\n\u003cp>MR. COOPER: Yes, Your Honor.\u003c/p>\n\u003cp>JUSTICE BREYER: And the reason there was adoption, but that doesn't apply to California. So imagine I wall off California and I'm looking just there, where you say that doesn't apply. Now, what happens to your argument about the institution of marriage as a tool towards procreation? Given the fact that, in California, too, couples that aren't gay but can't have children get married all the time.\u003c/p>\n\u003cp>MR. COOPER: Yes, Your Honor. The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples. Suppose, in turn --\u003c/p>\n\u003cp>JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?\u003c/p>\n\u003cp>MR. COOPER: No, Your Honor, it would not be constitutional.\u003c/p>\n\u003cp>JUSTICE KAGAN: Because that's the same State interest, I would think, you know. If you are over the age of 55, you don't help us serve the Government's interest in regulating procreation through marriage. So why is that different?\u003c/p>\n\u003cp>MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples -- both parties to the couple are infertile, and the traditional --\u003c/p>\n\u003cp>\u003cem>- Laughter -\u003c/em>\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Is Marriage a Fundamental Right?\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> \u003cem>Loving\u003c/em> was a 1967 decision by the U.S. Supreme Court to strike down Virginia’s ban on interracial marriage. It kept coming up because the challengers to Prop. 8 have really evoked \u003cem>Loving\u003c/em> and the interracial marriage setting as an analogy: That just as it was legitimate for the court to tell states that they could not ban marriages between races, so, too, it’s appropriate to tell states that they cannot ban marriages between gays and lesbians.\u003c/p>\n\u003cp>The people who oppose the challenge, the defenders of Prop. 8, Chuck Cooper, they really think that \u003cem>Loving\u003c/em> is more a case about race than it was about marriage. They also would note that in 1967, when the Supreme Court decided \u003cem>Loving\u003c/em>, there were only about a dozen or so states that continued to prohibit interracial marriage. Whereas 40 states or so continue to prohibit same-sex marriage. So the backdrop against which the Supreme Court nationalized a right to interracial marriage in 1967 might be considered different than today’s backdrop. Something the court kind of hinted at a number of times when they talked about whether this issue should percolate a little in the states before the Supreme Court weighs in, in a definitive fashion.\u003c/p>\n\u003cblockquote>\u003cp>CHIEF JUSTICE ROBERTS: Same-sex couples have every other right, it's just about the label.\u003c/p>\n\u003cp>MR. OLSON: The label \"marriage\" means something. Even our opponents --\u003c/p>\n\u003cp>CHIEF JUSTICE ROBERTS: If you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend. And that's it seems to me what the -- what supporters of Proposition 8 are saying here. You're -- all you're interested in is the label and you insist on changing the definition of the label.\u003c/p>\n\u003cp>MR. OLSON: It is like you were to say you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very, very critical. You could have said in the \u003cem>Loving\u003c/em> case, what -- you can't get married, but you can have an interracial union. Everyone would know that that was wrong, that the -- marriage has a status, recognition, support, and you -- if you read the test, you know --\u003c/p>\n\u003cp>CHIEF JUSTICE ROBERTS: How do we know -- how do we know that that's the reason, or a necessary part of the reason, that we've recognized marriage as a fundamental right? That's -- you've emphasized that and you've said, well, it's because of the emotional commitment. Maybe it is the procreative aspect that makes it a fundamental right.\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Why Now?\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> I think the best defense of Prop. 8, if there is a good defense, is that states have the right to be cautious when they’re tampering with an institution that’s 2,000 or more years old. Justice Kennedy talked about how long marriage has remained the way it is. Justice Alito said, you know, same sex-marriage is a newer institution than cell phones or the Internet, and you’re telling us we have to nationalize it right now?\u003c/p>\n\u003cblockquote>\u003cp>JUSTICE ALITO: You want us to assess the effects of same-sex marriage, the potential effects on -- of same-sex marriage, the potential -- the effects of Proposition 8. But what is your response to the argument which has already been mentioned about the need to be cautious in light of the newness of the -- the concept of -- of same-sex marriage. The one thing that the parties in this case seem to agree on is that marriage is very important. It's thought to be a fundamental building block of society and its preservation essential for the preservation of society. Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn't a lot of data about its effect. And it may turn out to be a -- a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe. But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we -- we are not -- we do not have the ability to see the future. On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>When Did Same-Sex Marriage Become Illegal?\u003c/strong>\u003c/p>\n\u003cp>\u003cstrong>Amar:\u003c/strong> The rhetorical point Justice Scalia is trying to make is that if we would say that it did not violate the Constitution to prohibit same-sex marriage 50 years ago, and it does so today, isn’t it odd that the meaning of the Constitution, whose words haven’t changed since 1868, would evolve?\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>(Scalia) is what we call an originalist and textualist. He wants to interpret the equal protection clause of the 14th Amendment by reference to what it meant in 1868. Not by reference to modern notions of social meaning and social science.\u003c/p>\n\u003cblockquote>\u003cp>JUSTICE SCALIA: Was it always unconstitutional?\u003c/p>\n\u003cp>MR. OLSON: It was constitutional when we -- as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that --\u003c/p>\n\u003cp>JUSTICE SCALIA: I see. When did that happen? When did that happen?\u003c/p>\n\u003cp>MR. OLSON: There's no specific date in time. This is an evolutionary cycle.\u003c/p>\n\u003cp>JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then --\u003c/p>\n\u003cp>MR. OLSON: Because the case that's before you --\u003c/p>\n\u003cp>JUSTICE SCALIA: -- if you can't give me a date when the Constitution changes?\u003c/p>\n\u003cp>MR. OLSON: -- in -- the case that's before you today, California decided -- the citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California, and then the Californians decided in Proposition 8, wait a minute, we don't want those people to be able to get married.\u003c/p>\n\u003cp>CHIEF JUSTICE ROBERTS: So -- so your case -- your case would be different if Proposition 8 was enacted into law prior to the California Supreme Court decision?\u003c/p>\n\u003cp>MR. OLSON: I would make -- I would make the -- also would make the -- that distinguishes it in one respect. But also -- also -- I would also make the argument, Mr. Chief Justice, that we are -- this -- marriage is a fundamental right and we are making a classification based upon a status of individuals, which this Court has repeatedly decided that gays and lesbians are defined by their status. There is no question about that.\u003c/p>\u003c/blockquote>\n\n\u003c/div>\u003c/p>",
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"content": "\u003cp>Supreme Court justices set a challenging tone early during the oral arguments on California's Proposition 8 Tuesday morning. The Justices questioned whether \u003ca href=\"#standing\">citizens have the right to defend a proposition\u003c/a> if the state will not, whether either side could \u003ca href=\"#harm\">prove legal harm\u003c/a> and \u003ca href=\"#when\">when same-sex marriage became illegal\u003c/a>.\u003c/p>\n\u003cp>\u003cstrong>Listen\u003c/strong> to the oral arguments on California's Proposition 8 at the U.S. Supreme Court this morning.\u003c/p>\n\u003cp>\u003ciframe src=\"https://w.soundcloud.com/player/?url=http%3A%2F%2Fapi.soundcloud.com%2Ftracks%2F85027489\" frameborder=\"no\" scrolling=\"no\" width=\"100%\" height=\"166\">\u003c/iframe>\u003c/p>\n\u003cp>\u003cstrong>Read\u003c/strong> the transcript:\u003c/p>\n\u003cp>\u003ciframe src=\"http://www.scribd.com/embeds/132467543/content?start_page=1&view_mode=scroll\" frameborder=\"0\" scrolling=\"no\" width=\"100%\" height=\"600\">\u003c/iframe>\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>The questions that justices ask can shed light on their concerns and how they might rule. \u003cstrong>\u003ca href=\"\" target=\"_blank\">Learn more\u003c/a>\u003c/strong> about what some of the exchanges meant.\u003c/p>\n\u003cp>\u003cstrong>\u003ca href=\"http://ww2.kqed.org/news/2013/03/27/audio-transcript-of-supreme-court-doma-oral-arguments/\">DOMA Supreme Court Hearing Audio, Transcript\u003c/a>\u003c/strong>\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>\u003cstrong>\u003ca href=\"http://www.supremecourt.gov/docket/DOMPRP8.aspx\">Read\u003c/a>\u003c/strong> all the of the case filings in the Proposition 8 and DOMA cases.\u003c/p>\n\n",
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"excerpt": "Listen to the oral arguments on California's Proposition 8 at the Supreme Court this morning.\r\n\r\n\u003ciframe width=\"100%\" height=\"166\" scrolling=\"no\" frameborder=\"no\" src=\"https://w.soundcloud.com/player/?url=http%3A%2F%2Fapi.soundcloud.com%2Ftracks%2F85027489\">\u003c/iframe>\r\n\r\nRead the transcript:\r\n\u003ciframe src=\"http://www.scribd.com/embeds/132467543/content?start_page=1&view_mode=scroll\" scrolling=\"no\" width=\"100%\" height=\"600\" frameborder=\"0\">\u003c/iframe>\r\n\r\n\u003ca href=\"http://www.supremecourt.gov/docket/DOMPRP8.aspx\" target=\"_blank\">\u003cstrong>Read\u003c/strong>\u003c/a> all the of the case filings in the Proposition 8 and DOMA cases.",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>Supreme Court justices set a challenging tone early during the oral arguments on California's Proposition 8 Tuesday morning. The Justices questioned whether \u003ca href=\"#standing\">citizens have the right to defend a proposition\u003c/a> if the state will not, whether either side could \u003ca href=\"#harm\">prove legal harm\u003c/a> and \u003ca href=\"#when\">when same-sex marriage became illegal\u003c/a>.\u003c/p>\n\u003cp>\u003cstrong>Listen\u003c/strong> to the oral arguments on California's Proposition 8 at the U.S. Supreme Court this morning.\u003c/p>\n\u003cp>\u003ciframe src=\"https://w.soundcloud.com/player/?url=http%3A%2F%2Fapi.soundcloud.com%2Ftracks%2F85027489\" frameborder=\"no\" scrolling=\"no\" width=\"100%\" height=\"166\">\u003c/iframe>\u003c/p>\n\u003cp>\u003cstrong>Read\u003c/strong> the transcript:\u003c/p>\n\u003cp>\u003ciframe src=\"http://www.scribd.com/embeds/132467543/content?start_page=1&view_mode=scroll\" frameborder=\"0\" scrolling=\"no\" width=\"100%\" height=\"600\">\u003c/iframe>\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>The questions that justices ask can shed light on their concerns and how they might rule. \u003cstrong>\u003ca href=\"\" target=\"_blank\">Learn more\u003c/a>\u003c/strong> about what some of the exchanges meant.\u003c/p>\n\u003cp>\u003cstrong>\u003ca href=\"http://ww2.kqed.org/news/2013/03/27/audio-transcript-of-supreme-court-doma-oral-arguments/\">DOMA Supreme Court Hearing Audio, Transcript\u003c/a>\u003c/strong>\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>\u003cstrong>\u003ca href=\"http://www.supremecourt.gov/docket/DOMPRP8.aspx\">Read\u003c/a>\u003c/strong> all the of the case filings in the Proposition 8 and DOMA cases.\u003c/p>\n\n\u003c/div>\u003c/p>",
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"content": "\u003cp>http://storify.com/kqednews/live-prop-8-and-doma-at-the-supreme-court\u003c/p>\n\u003cp>If you're on a mobile device, you can read the Prop. 8 live blog directly on \u003ca href=\"http://storify.com/kqednews/live-prop-8-and-doma-at-the-supreme-court\">Storify\u003c/a>.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\u003cp>\u003c/p>\n",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>http://storify.com/kqednews/live-prop-8-and-doma-at-the-supreme-court\u003c/p>\n\u003cp>If you're on a mobile device, you can read the Prop. 8 live blog directly on \u003ca href=\"http://storify.com/kqednews/live-prop-8-and-doma-at-the-supreme-court\">Storify\u003c/a>.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"disqusTitle": "The 'Other' Ted: No on 8 Attorney Prepares for Supreme Court Oral Arguments",
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"content": "\u003cp>When Theodore Boutrous Jr. hopped on the phone the other day from Washington, he was giddy.\u003c/p>\n\u003cp>\"We just got a unanimous ruling at the Supreme Court!\" he said.\u003c/p>\n\u003cp>He was referring to the 9-0 decision on behalf of his client, an insurance company fighting a class-action case.\u003c/p>\n\u003cp>I asked Boutrous, who goes by \"Ted,\" how many times he has argued in front of the Supreme Court.\u003c/p>\n\u003cfigure id=\"attachment_92270\" class=\"wp-caption alignright\" style=\"max-width: 195px\">\u003ca href=\"http://ww2.kqed.org/news/2013/03/25/the-other-ted-no-on-8-attorney-prepares-for-supreme-court-oral-arguements/michael-jacksons/\" rel=\"attachment wp-att-92270\">\u003cimg class=\"size-medium wp-image-92270 \" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/50997687-195x300.jpg\" alt=\"File photo. Theodore Boutros, Media attorney speaks at a press conference after the Michael Jackson's pre-trial hearing on June 25, 2004. (Joshua Gates Weisberg-Pool/Getty Images)\" width=\"195\" height=\"300\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Theodore Boutros, media attorney speaks at a press conference after the Michael Jackson's pre-trial hearing in 2004. (Joshua Gates Weisberg-Pool/Getty Images) Supreme Court.\u003c/figcaption>\u003c/figure>\n\u003cp>\"Twice,\" he said. \"And I’ve got 18 votes!\"\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>When I suggested he should retire while he has a perfect record -- 18 votes mean all the justices ruled in his favor both times he appeared before them -- he emailed back, “It’s tempting!”\u003c/p>\n\u003cp>Since the start of the Proposition 8 debate in federal court four years ago, \u003ca href=\"http://www.gibsondunn.com/lawyers/tboutrous\">Boutrous\u003c/a> has been overshadowed by a higher-profile Ted, colleague \u003ca href=\"http://www.gibsondunn.com/lawyers/tolson\">Theodore Olson\u003c/a>. Both are partners at \u003ca href=\"http://www.gibsondunn.com/lawyers/tboutrous\" target=\"_blank\">Gibson, Dunn & Crutcher\u003c/a> (Boutrous in Los Angeles, Olson in D.C.) and have worked together for nearly 30 years. Both are part of the high-powered No on 8 legal team.\u003c/p>\n\u003cp>Olson is renowned in legal circles as a leading conservative, which makes his pairing with David Boies (whom he faced on opposite sides of the Bush v. Gore case in 2000) so interesting.\u003c/p>\n\u003cp>\u003cstrong>Preparing for the Big Day\u003c/strong>\u003c/p>\n\u003cp>Olson will be the attorney arguing before the justices on behalf of the No on 8 team on Tuesday.\u003c/p>\n\u003cp>To prepare for oral arguments, the team has been doing simulations.\u003c/p>\n\u003cp>\"We’ll have done four moot courts by Tuesday,\" Boutrous said, referring to the practice arguments. \"We’ve had a mix of experienced Supreme Court litigators from inside and outside the firm join us for the preparation.\"\u003c!--more-->\u003c/p>\n\u003cp>\u003c!--more-->\"Ted [Olson] walks up to the podium,\" Boutrous said. \"The four or five lawyers playing the roles of justices stay in character during the hourlong session. They let him get off a few sentences, and then they just go at him.\"\u003c/p>\n\u003cp>\"People like playing justices,\" Boutrous joked.\u003c/p>\n\u003cfigure id=\"attachment_92284\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/2013/03/25/behind-the-scenes-with-the-no-on-8-team/federal-appeals-court-holds-hearing-on-prop-8-6/\" rel=\"attachment wp-att-92284\">\u003cimg class=\"size-medium wp-image-92284\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/RS4279_107361311-300x225.jpg\" alt=\"No on 8 attorneys\" width=\"300\" height=\"225\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">No on 8 attorneys Ted Boutrous (R), Ted Olson (2nd R) David Boies (L) speak to reporters following a hearing at the 9th Circuit Court of Appeals in 2010. (Justin Sullivan/Getty Images)\u003c/figcaption>\u003c/figure>\n\u003cp>The moot courts, he said, allow the No on 8 legal team to try out and edit their best arguments, to see where a particular argument will lead and to practice avoiding the creation of unnecessary issues that could bog down the argument or distract from the main points.\u003c/p>\n\u003cp>The No on 8 team will have 20 minutes to argue its case. The U.S. Solicitor General, also opposing Prop. 8, gets 10 minutes. The Yes on 8 team gets the other 30 minutes.\u003c/p>\n\u003cp>\u003cstrong>Reading the Justices\u003c/strong>\u003c/p>\n\u003cp>\"Don’t get too happy or too depressed about the questions they ask during the arguments,\" Boutrous said. \"You just don’t know what the purpose of the question is. You have to stay even-keeled.\"\u003c/p>\n\u003cp>In fact, he noted, he was stunned to see he’d gotten Justice Elena Kagan’s vote in that recent 9-0 decision because her questions during oral arguments seemed so hostile to his side.\u003c/p>\n\u003cp>\u003cstrong>Looking Sharp\u003c/strong>\u003c/p>\n\u003cp>On a lighter matter, I asked how they decide what to wear in court.\u003c/p>\n\u003cp>\"You always keep to dark colors,\" Boutrous said. \"I remember once I saw a lawyer came into court with a powder-blue jacket. I thought, 'This isn’t going to go well!'\"\u003c/p>\n\u003cp>\u003cstrong>'Abstract Principles Versus Real People'\u003c/strong>\u003c/p>\n\u003cp>Boutrous and the rest of team appear confident.\u003c/p>\n\u003cp>I asked what is the biggest hurdle his opponents face.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>\"They’ve never been able to prove that excluding gay people is necessary to anyone or anything,\" Boutrous said. \"They can’t point to any harm done by same-sex marriage. It’s their abstract principles versus real people and their children being harmed. They just want to be like everybody else.\"\u003c/p>\n\n",
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"excerpt": "When Theodore Boutrous, Jr. hopped on the phone the other day from Washington, he was giddy. “We just got a unanimous ruling at the Supreme Court!” He was referring to the 9-0 decision on behalf of his client, an insurance company fighting a class action case.\r\n\r\nI asked Boutrous, who goes by “Ted”, how many times he’s argued in front of the Supreme Court. “Twice, “ he said. “And I’ve got 18 votes!” When I suggested he should retire while he has a perfect record, he emailed back “It’s tempting!”\r\n\r\n\u003cimg class=\"size-medium wp-image-92270\" src=\"http://ww2.kqed.org/news/files/2013/03/50997687-195x300.jpg\" alt=\"File photo. Theodore Boutros, Media attorney speaks at a press conference after the Michael Jackson's pre-trial hearing on June 25, 2004. (Joshua Gates Weisberg-Pool/Getty Images)\" width=\"195\" height=\"300\" style=\"padding:10px 10px 10px 10 px\" align=\"right\" />\u003c/a> \r\nSince the start of the Prop. 8 debate in federal court four years ago, Boutrous has been overshadowed by his high profile colleague, attorney Theodore Olson. Both are partners at \u003ca href=\"http://www.gibsondunn.com/lawyers/tboutrous\" target=\"_blank\">Gibson, Dunn & Crutcher\u003c/a> (Boutrous in the Los Angeles office, Olson in D.C.) and have worked together for nearly 30 years. Olson is renowned in legal circles as a leading conservative, which makes his pairing with David Boies (whom he faced on opposite sides of the Bush v. Gore case in 2000) so interesting.\r\n\r\nBoutrous may not get the “ink” they get, but he’s been an integral part of the legal strategy against Prop. 8.",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>When Theodore Boutrous Jr. hopped on the phone the other day from Washington, he was giddy.\u003c/p>\n\u003cp>\"We just got a unanimous ruling at the Supreme Court!\" he said.\u003c/p>\n\u003cp>He was referring to the 9-0 decision on behalf of his client, an insurance company fighting a class-action case.\u003c/p>\n\u003cp>I asked Boutrous, who goes by \"Ted,\" how many times he has argued in front of the Supreme Court.\u003c/p>\n\u003cfigure id=\"attachment_92270\" class=\"wp-caption alignright\" style=\"max-width: 195px\">\u003ca href=\"http://ww2.kqed.org/news/2013/03/25/the-other-ted-no-on-8-attorney-prepares-for-supreme-court-oral-arguements/michael-jacksons/\" rel=\"attachment wp-att-92270\">\u003cimg class=\"size-medium wp-image-92270 \" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/50997687-195x300.jpg\" alt=\"File photo. Theodore Boutros, Media attorney speaks at a press conference after the Michael Jackson's pre-trial hearing on June 25, 2004. (Joshua Gates Weisberg-Pool/Getty Images)\" width=\"195\" height=\"300\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Theodore Boutros, media attorney speaks at a press conference after the Michael Jackson's pre-trial hearing in 2004. (Joshua Gates Weisberg-Pool/Getty Images) Supreme Court.\u003c/figcaption>\u003c/figure>\n\u003cp>\"Twice,\" he said. \"And I’ve got 18 votes!\"\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>When I suggested he should retire while he has a perfect record -- 18 votes mean all the justices ruled in his favor both times he appeared before them -- he emailed back, “It’s tempting!”\u003c/p>\n\u003cp>Since the start of the Proposition 8 debate in federal court four years ago, \u003ca href=\"http://www.gibsondunn.com/lawyers/tboutrous\">Boutrous\u003c/a> has been overshadowed by a higher-profile Ted, colleague \u003ca href=\"http://www.gibsondunn.com/lawyers/tolson\">Theodore Olson\u003c/a>. Both are partners at \u003ca href=\"http://www.gibsondunn.com/lawyers/tboutrous\" target=\"_blank\">Gibson, Dunn & Crutcher\u003c/a> (Boutrous in Los Angeles, Olson in D.C.) and have worked together for nearly 30 years. Both are part of the high-powered No on 8 legal team.\u003c/p>\n\u003cp>Olson is renowned in legal circles as a leading conservative, which makes his pairing with David Boies (whom he faced on opposite sides of the Bush v. Gore case in 2000) so interesting.\u003c/p>\n\u003cp>\u003cstrong>Preparing for the Big Day\u003c/strong>\u003c/p>\n\u003cp>Olson will be the attorney arguing before the justices on behalf of the No on 8 team on Tuesday.\u003c/p>\n\u003cp>To prepare for oral arguments, the team has been doing simulations.\u003c/p>\n\u003cp>\"We’ll have done four moot courts by Tuesday,\" Boutrous said, referring to the practice arguments. \"We’ve had a mix of experienced Supreme Court litigators from inside and outside the firm join us for the preparation.\"\u003c!--more-->\u003c/p>\n\u003cp>\u003c!--more-->\"Ted [Olson] walks up to the podium,\" Boutrous said. \"The four or five lawyers playing the roles of justices stay in character during the hourlong session. They let him get off a few sentences, and then they just go at him.\"\u003c/p>\n\u003cp>\"People like playing justices,\" Boutrous joked.\u003c/p>\n\u003cfigure id=\"attachment_92284\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/2013/03/25/behind-the-scenes-with-the-no-on-8-team/federal-appeals-court-holds-hearing-on-prop-8-6/\" rel=\"attachment wp-att-92284\">\u003cimg class=\"size-medium wp-image-92284\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2013/03/RS4279_107361311-300x225.jpg\" alt=\"No on 8 attorneys\" width=\"300\" height=\"225\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">No on 8 attorneys Ted Boutrous (R), Ted Olson (2nd R) David Boies (L) speak to reporters following a hearing at the 9th Circuit Court of Appeals in 2010. (Justin Sullivan/Getty Images)\u003c/figcaption>\u003c/figure>\n\u003cp>The moot courts, he said, allow the No on 8 legal team to try out and edit their best arguments, to see where a particular argument will lead and to practice avoiding the creation of unnecessary issues that could bog down the argument or distract from the main points.\u003c/p>\n\u003cp>The No on 8 team will have 20 minutes to argue its case. The U.S. Solicitor General, also opposing Prop. 8, gets 10 minutes. The Yes on 8 team gets the other 30 minutes.\u003c/p>\n\u003cp>\u003cstrong>Reading the Justices\u003c/strong>\u003c/p>\n\u003cp>\"Don’t get too happy or too depressed about the questions they ask during the arguments,\" Boutrous said. \"You just don’t know what the purpose of the question is. You have to stay even-keeled.\"\u003c/p>\n\u003cp>In fact, he noted, he was stunned to see he’d gotten Justice Elena Kagan’s vote in that recent 9-0 decision because her questions during oral arguments seemed so hostile to his side.\u003c/p>\n\u003cp>\u003cstrong>Looking Sharp\u003c/strong>\u003c/p>\n\u003cp>On a lighter matter, I asked how they decide what to wear in court.\u003c/p>\n\u003cp>\"You always keep to dark colors,\" Boutrous said. \"I remember once I saw a lawyer came into court with a powder-blue jacket. I thought, 'This isn’t going to go well!'\"\u003c/p>\n\u003cp>\u003cstrong>'Abstract Principles Versus Real People'\u003c/strong>\u003c/p>\n\u003cp>Boutrous and the rest of team appear confident.\u003c/p>\n\u003cp>I asked what is the biggest hurdle his opponents face.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>\"They’ve never been able to prove that excluding gay people is necessary to anyone or anything,\" Boutrous said. \"They can’t point to any harm done by same-sex marriage. It’s their abstract principles versus real people and their children being harmed. They just want to be like everybody else.\"\u003c/p>\n\n\u003c/div>\u003c/p>",
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"disqusTitle": "Prop. 8 Co-Author: Striking Down Prop. 8 Would Be Judicial Activism",
"title": "Prop. 8 Co-Author: Striking Down Prop. 8 Would Be Judicial Activism",
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"content": "\u003cp>Andy Pugno, a co-author of Proposition 8 and general counsel at ProtectMarriage.com, is part of the legal team defending the same-sex marriage ban at the U.S. Supreme Court Tuesday.\u003c/p>\n\u003cp>Pugno discussed with KQED's Scott Shafer the major themes of the team's legal argument, as well as what changing public opinion means for the case.\u003c/p>\n\u003cp>Even though prominent Republicans, Fortune 500 companies and the public are becoming more accepting of same-sex marriage, Pugno said he thinks it will not have much of an effect on the justices.\u003c/p>\n\u003cp>\"I think the justices are accustomed to avoiding being sucked into a political debate,\" Pugno said. \"I think they'll be mindful of their limited role as judges to interpret existing law, not to make new law.\"\u003c/p>\n\u003cp>Indeed, it appears that one of the pro-Prop. 8 team's core arguments is that the proposition passed into law through a valid democratic process and that any judge's attempt to invalidate it would be akin to judicial activism, Pugno said.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>There is also the issue of states' rights:\u003c/p>\n\u003cp>\"It really would be unfortunate to have same-sex marriage imposed -- marriage redefined -- for all 50 states by the intervention of the federal courts,\" Pugno said.\u003c/p>\n\u003cp>\"If the Supreme Court decides there is a hidden, invisible right to same-sex marriage in the Constitution, that would spell the end for Proposition 8 in California.\"\u003c/p>\n\u003cp>[youtube http://www.youtube.com/watch?v=VOi3MEz6MWs]\u003c/p>\n\u003cp>This interview and more coverage aired on KQED's \"\u003ca href=\"http://www.kqed.org/tv/programs/thisweek/watch/archive/266864/a\">This Week in Northern California\u003c/a>\" Friday, March 22, at 7:30 p.m.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>Watch an interview \u003ca href=\"http://ww2.kqed.org/news/2013/03/22/video-newsom-on-same-sex-marriage/\">here\u003c/a> with California Lt. Gov. Gavin Newsom who, for one month, oversaw the issuing of marriage licenses to same-sex couples in San Francisco in 2004.\u003c/p>\n\n",
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"excerpt": "Andy Pugno, a co-author of Proposition 8 and general counsel at ProtectMarriage.com, is part of the legal team defending the same-sex marriage ban at the U.S. Supreme Court Tuesday.\r\n\r\nPugno discusses with KQED's Scott Shafer the major themes of their legal argument as well as what changing public opinion means for the case.\r\n\r\nEven though prominent Republicans, Fortune 500 companies and the public is becoming more accepting of same-sex marriage, Pugno said he thinks it will not have much of an effect on the justices.\r\n\r\n\"I think the justices are accustomed to avoiding being sucked into a political debate,\" Pugno said. \"I think they'll be mindful of their limited role as judges to interpret existing law, not to make new law.\"\r\n\r\n[youtube http://www.youtube.com/watch?v=VOi3MEz6MWs]",
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"description": "Andy Pugno, a co-author of Proposition 8 and general counsel at ProtectMarriage.com, is part of the legal team defending the same-sex marriage ban at the U.S. Supreme Court Tuesday.\r\n\r\nPugno discusses with KQED's Scott Shafer the major themes of their legal argument as well as what changing public opinion means for the case.\r\n\r\nEven though prominent Republicans, Fortune 500 companies and the public is becoming more accepting of same-sex marriage, Pugno said he thinks it will not have much of an effect on the justices.\r\n\r\n"I think the justices are accustomed to avoiding being sucked into a political debate," Pugno said. "I think they'll be mindful of their limited role as judges to interpret existing law, not to make new law."\r\n\r\n",
"title": "Prop. 8 Co-Author: Striking Down Prop. 8 Would Be Judicial Activism | KQED",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>Andy Pugno, a co-author of Proposition 8 and general counsel at ProtectMarriage.com, is part of the legal team defending the same-sex marriage ban at the U.S. Supreme Court Tuesday.\u003c/p>\n\u003cp>Pugno discussed with KQED's Scott Shafer the major themes of the team's legal argument, as well as what changing public opinion means for the case.\u003c/p>\n\u003cp>Even though prominent Republicans, Fortune 500 companies and the public are becoming more accepting of same-sex marriage, Pugno said he thinks it will not have much of an effect on the justices.\u003c/p>\n\u003cp>\"I think the justices are accustomed to avoiding being sucked into a political debate,\" Pugno said. \"I think they'll be mindful of their limited role as judges to interpret existing law, not to make new law.\"\u003c/p>\n\u003cp>Indeed, it appears that one of the pro-Prop. 8 team's core arguments is that the proposition passed into law through a valid democratic process and that any judge's attempt to invalidate it would be akin to judicial activism, Pugno said.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>There is also the issue of states' rights:\u003c/p>\n\u003cp>\"It really would be unfortunate to have same-sex marriage imposed -- marriage redefined -- for all 50 states by the intervention of the federal courts,\" Pugno said.\u003c/p>\n\u003cp>\"If the Supreme Court decides there is a hidden, invisible right to same-sex marriage in the Constitution, that would spell the end for Proposition 8 in California.\"\u003c/p>\n\u003cp>\u003c/p>\u003cp>\u003cspan class='utils-parseShortcode-shortcodes-__youtubeShortcode__embedYoutube'>\n \u003cspan class='utils-parseShortcode-shortcodes-__youtubeShortcode__embedYoutubeInside'>\n \u003ciframe\n loading='lazy'\n class='utils-parseShortcode-shortcodes-__youtubeShortcode__youtubePlayer'\n type='text/html'\n src='//www.youtube.com/embed/VOi3MEz6MWs'\n title='//www.youtube.com/embed/VOi3MEz6MWs'\n allowfullscreen='true'\n style='border:0;'>\u003c/iframe>\n \u003c/span>\n \u003c/span>\u003c/p>\u003cp>\u003c/p>\n\u003cp>This interview and more coverage aired on KQED's \"\u003ca href=\"http://www.kqed.org/tv/programs/thisweek/watch/archive/266864/a\">This Week in Northern California\u003c/a>\" Friday, March 22, at 7:30 p.m.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>Watch an interview \u003ca href=\"http://ww2.kqed.org/news/2013/03/22/video-newsom-on-same-sex-marriage/\">here\u003c/a> with California Lt. Gov. Gavin Newsom who, for one month, oversaw the issuing of marriage licenses to same-sex couples in San Francisco in 2004.\u003c/p>\n\n\u003c/div>\u003c/p>",
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"info": "Possible is hosted by entrepreneur Reid Hoffman and writer Aria Finger. Together in Possible, Hoffman and Finger lead enlightening discussions about building a brighter collective future. The show features interviews with visionary guests like Trevor Noah, Sam Altman and Janette Sadik-Khan. Possible paints an optimistic portrait of the world we can create through science, policy, business, art and our shared humanity. It asks: What if everything goes right for once? How can we get there? Each episode also includes a short fiction story generated by advanced AI GPT-4, serving as a thought-provoking springboard to speculate how humanity could leverage technology for good.",
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"soldout": {
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"title": "SOLD OUT: Rethinking Housing in America",
"tagline": "A new future for housing",
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