A Constitutional Law Primer on the Prop 8 Case

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It strikes me that some of what’s going on in the Prop 8 trial can be hard to follow. So I’m going to put on my constitutional law hat here and give a little primer. We’ll see how well I’ve remembered most of this stuff from law school.

Broadly, the plaintiffs in the Prop 8 case — the lawyers who are trying to get Prop 8 overturned — are trying to prove two things: (1) that marriage is a fundamental right that should be open to gay couples as well as to straight couples, and (2) that gays as a group are deserving of equal protection. Basically, discriminatory laws are subject to a high level of scrutiny if (1) they involve a fundamental right (like marriage) or (2) the discrimination is against certain protected groups (like blacks).

(Very little of this doctrine is actually set forth in the Constitution; it has been enumerated in bits and pieces by the Supreme Court over the decades in various constitutional law cases.)

To use a classic example: a state can allow optometrists to conduct eye exams but prevent opthamologists from doing so, because there is a rational reason for the law (one group has the expertise to conduct eye exams, the other does not). But you can’t pass a law permitting optometrists to get married but prohibiting opthamologists from doing so, because marriage is a fundamental right. And you can’t pass a law preventing black people from conducting eye exams, because they are a protected class with a long history of discrimination against them. You also can’t do either of these things because on a minimal level, there is no rational basis for the discrimination.

So this case is, to put it very simply, about (1) whether treating gays differently from straights in the area of marriage is the same as treating optometrists differently from opthamologists in the area of eye exams (i.e. is there a good reason for letting straights get married but not gays), and/or (2) whether sexual orientation should be a protected class like race is.

So here’s how that all plays out:

One, the lawyers on our side are trying to show that sexual orientation should be a protected class, i.e. a “suspect classification.” In other words, they are trying to prove that laws that discriminate on the basis of sexual orientation should be subject to a higher level of scrutiny just as laws that discriminate on the basis of race are subject to higher scrutiny.

Now, one of the characteristics of a group that is subject to this special protection is that the group lacks the political power to achieve its goals through the democratic system. So our side is trying to show that gays lack political power and therefore deserve protection, whereas the other side is trying to show that gays have adequate political power so what’s the big deal. The theory is that the courts will only look out for groups for whom the political system is rigged against them: i.e. blacks in the mid-20th century (who in many cases were being prevented from voting). Basically, the anti-gay folks are saying, “Look, gays have just as much political power as anyone else — see, people like watching TV shows and movies about gay people and there are lots of politicians who support them! Therefore, if they can’t win ballot measures about same-sex marriage, it’s not because of a fault in the political system, it’s just that they lost in a fair democratic vote!”

The whole thing about lacking political power is silly, because it’s paradoxical. Basically, we have to prove simultaneously that (1) gays are getting screwed by the political system and (2) society has evolved enough so that same-sex marriage isn’t that much of a further step. It’s never made much sense to me.

Another characteristic of a group that gets special protection is that that group has an immutable characteristic. So, some of the testimony has been about what makes people gay, can gay people change, etc.

So that’s the “suspect classification” argument.

But if they fail on that point, there is another tack: they are trying to show that Prop 8 does not even have a rational basis and is therefore unconstitutional.

One way to do this is to show that it was motivated by animus. The Supreme Court said in Romer v. Evans that even if a particular group does not deserve special protection, you can never constitutionally discriminate against a group merely because of animus and nothing else. Romer was the 1996 case in which the Court threw out a Colorado constitutional amendment that banned any laws protecting gay people from discrimination; there, the Court found that the reason the people of Colorado passed that amendment had no basis other than animus. That’s one of the reasons why our guys wanted to put William Tam on the stand — to show that he had a hand in the Prop 8 fight and that his reasoning was based on irrational, animus-driven prejudice (i.e. gays are child molesters, gays want children to be able to get married, etc.), and that his thinking reflects the thinking of most of the Prop 8 forces generally.

Another way to show that it lacks a rational basis is to go into the substantive stuff about why gays should be able to get married, why it does not harm children, etc.

So, all of that is the “equal protection” strand of the argument.

The other strand of the argument is the “fundamental right” strand, which also involves much of the substantive stuff about gays and marriage. But the main thrust on the “fundamental right” issue is that the Supreme Court has already, in the past, declared that marriage is a fundamental right: you can’t deny interracial couples the right to marriage, and you can’t even deny someone in prison the right to get married, even though the prisoner might never be able to have conjugal relations with the spouse. So the lawyers are trying to show that this already-declared fundamental right of marriage should not be denied to same-sex couples.

So this is basically what’s going on in the Prop 8 trial.

Prop 8 Trial Continues

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During the Prop 8 trial, I’ve been following the Prop 8 Trial Tracker blog created by the Courage Campaign. It seems like our side has been putting on a great case, and the Prop 8 folks have been putting on a pretty lackluster case.

Of course, none of this really matters, because even if Judge Walker rules in our favor, and even if the Ninth Circuit upholds that decision, this will eventually wind up in the U.S. Supreme Court, where Justice Kennedy will be the deciding vote. No matter how rational our side’s arguments are, we’ll never get the votes of Roberts, Scalia, Thomas or Alito.

It’s really unclear what side Kennedy would be on. He’s written a couple of seminal pro-gay decisions — Romer and Lawrence. But what would he think about the validity of marriage equality?

No matter what happens in the Supreme Court, though, this trial has been a net plus. While I don’t know how much publicity the trial has had since the first week, it can only change people’s minds in favor of equality. I seriously doubt it would turn anyone againstmarriage equality who wasn’t already opposed.

Even if we lose in the Supreme Court, that’s not so bad. The Court wouldn’t outlaw marriage equality; it would just leave everything up to the states, which is where we are now. And any state-based marriage case that involved the interpretation of a state’s constitution would be unaffected, because the U.S. Supreme Court has no legal say over how to interpret a state constitution.

There are some who say that an adverse decision in the Supreme Court would set back the cause of equality, but that’s not necessarily so. As last week’s campaign finance case shows, the Court has no compunction about overturning its own precedents, even if those precedents are less than ten years old.

So I think that whatever happens, this trial has been a net win.

There’s a Martin Luther King quote that Obama has often used in the last couple of years:

The arc of history is long… but it bends towards justice.

In the long run, we’re moving toward equality.

More Tam Testimony

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Oh, I forgot this gem of an exchange from William Tam’s testimony yesterday. Pages 197-199:

Q. Have you seen anything in writing that says that [sexual orientation can be changed]?

A. I saw in a website, yeah.

Q. What website?

A. It’s the NARTH website.

Q. What?

A. NARTH [an “ex-gay” group].

Q. And do you believe that the NARTH website is a source of objective scientific information?

A. Well, I believe in what they say.

Q. Now, you mentioned the APA a moment ago.

A. Yes.

Q. Do you recall that?

A. Yes.

Q. What’s the APA?

A. I think it’s American Psychological Association.

Q. Yes. And what does the American Psychological Association say about sexual orientation?

A. I don’t know.

Q. You don’t know?

A. I don’t know.

Q. You never tried to find out?

A. No, I don’t — I don’t.

Q. You thought it was better to get your scientific information about this issue from the NARTH website as opposed to the American Psychological Association. Is that your testimony?

A. Uhm, yeah, I believe in what NARTH says.

Um, you can “believe in” aliens, or God, or ESP. But facts are what’s important in a court case, not “beliefs.”

William Tam Admits He’s “Paranoid”

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There was some highly entertaining testimony yesterday in the Prop 8 trial. It was from William Tam, who worked on behalf of Prop 8. Tam had originally been a party to the case, but he dropped out because his theories would have come off as too batshit crazy. But Olson and Boies subpoenaed him as a witness anyway to showcase how nutty some of the Prop 8 people are. And Tam certainly delivered. He even admitted that his fears about marriage equality are “paranoid.”

His testimony starts on page 145 of yesterday’s transcript. Below is the first example I saw of how reasoned argument can be used to demolish inflammatory rhetoric; this starts on page 182. The questions were asked by David Boies.

Q. And you say: “The San Francisco city government is under the rule of homosexuals.” Do you see that?

A. Yes.

Q. Did you believe that, sir?

A. Yes, I believed that.

Q. Who are the homosexuals that San Francisco is under the rule of?

A. Uhm, at that time, supervisor Tom Ammiano was a supervisor there.

Q. And there was also a mayor, right?

A. Yes.

Q. The mayor was a homosexual, was he, according to you?

A. I don’t think so.

Q. You don’t think so? No, I don’t think so either, actually. So if you knew the mayor wasn’t homosexual, why are you telling people in part of the Proposition 8 campaign that San Francisco is under the rule of homosexuals?

A. Uhm, well, you see, Mayor Newsom pass out the same-sex marriage licenses in 2004. And if he is not a friend of them, why would he do that?

Q. When you say that San Francisco was under the rule of homosexuals, did you mean San Francisco was under the rule of heterosexuals that were friends of homosexuals? Is that what you meant?

A. Could be.

Q. Could be.

A. Yeah, you know, I’m not a lawyer. I don’t write things so specifically. You know, that well-defined.

Yes, if you’re having a debate about the civil rights of human beings, it would be silly for the arguments to be “well-defined.” It’s much better to distort the truth.

You know, instead of allowing nutjobs to argue on cable TV and make outlandish claims that don’t get refuted, we should require every debate to be conducted in front of a judge, in a civilized, rational manner, because that’s how the truth really comes out.

Tam unintentionally admits the real truth on pages 221-222:

[I]f the name of “marriage” is not so narrow, which is between people of different — different blood, of different — of age above 18, then our children — you know, I always, we always look at things from the angle of a parent — that they would fantasize. Everyone fantasize whom they will marry when they grow up. So children will fantasize about marrying either a man or a woman. And to us parents — you may say that I’m a paranoid Chinese parent — we get very, very upset about that.

Many a true word is spoken in jest.

Prop 8 Trial Re-enactment

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In addition to the transcripts, there’s also going to be a re-enactment of the Prop 8 trial using the those transcripts, produced by freelance journalist and filmmaker John Ireland . So far there’s a preview video up. Looks pretty cool.

Does this mean the actors will get harrassed because viewers will get confused and think they’re the real participants?

(That’s a little joke about the Supreme Court ruling against cameras.)

Disengaging (A Bit)

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I’m glad I’d mentally prepared myself for the results of the Massachusetts Senate race. Just writing this blog post the other night helped me.

I tend to take politics very personally. Because I’m gay and Jewish, I loathe the Republican Party. The Republican Party encourages the beliefs of a huge swath of Protestant Christians who think I’m sub-human because I’m gay, and who think — even though they claim to have great respect for the Jewish people as the forebearers of Christianity — that I deserve to be punished in eternal Hellfire because I don’t believe that Jesus Christ is the son of God. I cannot vote for a political party that encourages such hate and intolerance, no more than I could vote for a southern Democrat if I were a black man in Mississippi in the 1950s (if I were even permitted to vote).

So when voters elect a Republican, my instinct is to see it as a personal attack on me.

But plenty of voters don’t mean their votes as an attack on me. First, there are those who are Republican because they agree with the party’s economic and political philosophies. I disagree with those philosophies, but these are not issues that touch the core of my identity — that touch who I am as a human being.

Second, there are the independents — those who tend to sway elections and don’t vote for a particular philosophy at all, but are just finicky; when the economy sucks, they vote for whoever is out of power. I understand that most voters aren’t political junkies, that they’re either too busy raising kids and going to work or looking for a job, or that they just find this stuff less interesting than I do and only get their news in soundbites. They care about their financial security; they’re not concerned about gays getting married or converting other people to Christianity. They may even be tolerant atheists. They just want the economy to get better.

I tend to see politics as a team sport: if my team loses, then I have lost, and everyone will make fun of me and hate me. But politics is not actually a team sport. Some politicians are better than others, and some of them even mean well, but in the end, they’re all just politicians. They don’t know me, and they’re not my good friends or relatives. I’m still going to support Democrats and vote for them and want them to win, but I’m not going to pretend that they’re “my team.” I’m not going to stop following politics, but I’m going to try to follow it with a colder eye.

I’m going to try to be less personally invested in all of this.

Political Grief

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There have been a couple of nights in the past week when I’ve had trouble falling asleep. I’ve been anxious.

It’s not because of anything in my personal life. It’s because of tomorrow’s Senate race in Massachusetts.

It looks like Democrat Martha Coakley is going to lose to Republican Scott Brown. The Senate seat held for 47 years by Ted Kennedy — and held before him by his brother, John F. Kennedy — is probably going to go Republican. That seat hasn’t been Republican since JFK won it in 1952.

I am deeply, deeply upset that after months and months of debate, after all the angst, after all the arm-twisting and dealmaking, after all the grief, after the reform plan has approached death’s doorstep several times since August, only to keep surviving — after everything, after decades of waiting, we have, at long last, seen the House of Representatives pass a health care reform bill; and then, miracle of miracles, we have even seen the Senate — the United States Senate, where reform bills go to die! — pass a health care reform bill; after decades of effort, we are finally on the brink of passing health care reform; and now we are going to see it all fall apart, because Ted Kennedy — Ted Kennedy, of all people, whose life’s dream was to bring health insurance to millions of Amerians, who worked tirelessly for decades to achieve this goal — was taken away from us by brain cancer.

I have actually had trouble falling asleep because of this. Because I’ve been taking it personally.

It doesn’t make sense to take it personally. The death of health care reform wouldn’t affect me materially; my own health care coverage is fine.

But this bill could bring health care to 31 million Americans. I may be in decent financial shape, but millions of Americans are not. And I want this to be a country that gives aid to its citizens when they need it. It pains me that people die in this country because they can’t afford health insurance, that people come to financial ruin in this country because they get sick.

And I admit, my feelings go beyond altruism.

The thing is, human beings are clannish. We like to divide ourselves into tribes, whether it’s in support of religions, or nations, or political parties, or sports teams, or late-night TV stars, or supernatural creatures. If Massachusetts voters send a corporatist Republican to the Senate tomorrow, I will feel like I have been personally attacked. I know this is not rational. But it’s what I will feel. I will feel like millions of Americans are jeering and laughing at me. I will feel like they hate me. I will feel like my team has lost.

(And I don’t even live in Massachusetts.)

It pains me that health care reform could die. And it angers me that 59 votes is not enough to get things done in the Senate. Jon Stewart channeled my feelings tonight on The Daily Show: the Democrats have more Senate seats than the Republicans have had since 1923; George W. Bush was able to do all the damage he did to our country without ever having a supermajority in the Senate. (By Tuesday morning, the relevant Daily Show clip should be here. Update: here it is.)

Even if Brown wins, the House can still save reform. All it has to do is pass the bill that the Senate has already passed. The fear, though, is that Democrats will be quaking in their boots after Brown wins — because that’s what Democrats do best, quake in their boots — and give up on reform for fear of being voted out by a wrathful electorate in the fall.

But the House has until the end of the 111th Congress to pass the Senate bill. It can even wait until after the November 2010 elections and then pass the bill in a lame-duck session. Hey — if the Republican-controlled House could impeach Bill Clinton in a lame-duck session after losing seats, and not even be punished for it, the Democratic-controlled House can pass health care reform in December 2010.

But again: we’re talking about Democrats. Footwear, quaking.

In this instance I’ve decided to take Dan’s advice and expect the worst. The Massachusetts Senate seat is lost, and health care reform is probably lost. The only upside I can see is that maybe, maybe, the failure of health care reform will take away some of the Republicans’ ammunition as the economy slowly improves. Clinton’s health plan failed and then the Republicans took over Congress, and then they overreached, and Clinton was re-elected two years later. Maybe the failure of health care reform will improve Obama’s re-election prospects. I would rather have an ineffective Democrat in the White House than any Republican; better a holding pattern than active harm.

So I’ve decided to let it go. There is nothing I can do about it, so getting upset is pointless. And I shouldn’t take it as a personal repudiation. I haven’t failed; Martha Coakley has failed. The voters of Massachusetts don’t even know me.

I’m still going to be upset. But I’m also going to try and chill out about it.

For my own sanity.

Engaged Couples Study

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I’ve been asked to publicize a study about same-sex relationships that is seeking volunteers. It seems interesting — if you’re an engaged gay couple, take a look.

Engaged volunteers needed!

I am looking for volunteers for a study of attitudes towards marriage and parenthood among engaged couples. The study consists of a 25-30 minute online survey. To qualify for the study, you must be 20-35 years old, live in the U.S., and plan to marry or have a commitment ceremony within the next 365 days. You and your romantic partner must not have children, and this must be the first marriage for both of you.

You can:

-Help a doctoral candidate;
-Increase the pool of scientific knowledge;
-Support research on marriage and families; and
-Spend some time thinking about your relationship!

I am working with Dr. Charlotte J. Patterson, a Professor of Psychology at the University of Virginia. This study has been approved by the University of Virginia Institutional Review Board #2009025800.

If you and/or your romantic partner are interested in participating or want further information, please email me at survey.couples@gmail.com. I will send you a link that you can use to access the study.

Thanks!

Cristina Reitz-Krueger
Doctoral Student
University of Virginia
(434) 243-8558
survey.couples@gmail.com

Liz Lemon’s Gay Cousin

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Last night on 30 Rock, Liz Lemon’s gay teenage cousin showed up and was hilarious. I looked him up online, and he was played by an actor named Jeffery Self. It turns out he has a blog and wrote a post about his big break.

Google also took me to his Facebook page, and apparently we have several mutual Facebook friends. Maybe you do too. Small world.

I Wonder…

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Do you ever wonder if the reason some people are against marriage equality is because they will no longer be assumed to be straight if someone sees them wearing a wedding ring? That if they say “I am married,” someone will respond, “Oh, to a man or to a woman?”

Throw in a little insecurity over your own sexual orientation and there you go.

SCOTUS: No Cameras in Prop 8 Trial

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“Irreparable harm.”

Nobody expected the U.S. Supreme Court to get involved in the Prop 8 case so soon, but a couple of hours ago, the Court issued an order preventing the broadcast of the Prop 8 trial to five federal courthouses across the country after being asked to do so a few days ago by the pro-Prop 8 lawyers. The order doesn’t address whether the trial can be broadcast on the internet, because that issue is still being worked out at the lower level (“the technical staff encountered some unexpected difficulties preparing a satisfactory video suitable for on-line posting”).

This whole case has so many people on edge — me included — that anything the Supreme Court says about it, even on a supposedly tangential issue like cameras in the courtroom, is being given talmudic scrutiny.

What worries me is the makeup of the justices in this decision. It just so happens that the five justices who voted to bar cameras in this case — and therefore agreed with the pro-Prop 8 lawyers — are Roberts, Scalia, Thomas, Alito, and Kennedy, and that the four justices who dissented are Stevens, Ginsburg, Breyer, and Sotomayor. This is exactly the lineup a decision on the merits could have, with the possible exception of Kennedy.

The thing is, I tend to agree more with the majority here, that the lower court probably didn’t follow proper procedure in allowing cameras in this case. But I could be persuaded that the minority is right as well. This really isn’t an emotionally charged issue — except for the fact that it happens to involve a trial about Prop 8.

And the fact that the trial is about Prop 8 is relevant. The majority opinion, which is unsigned, isn’t just about proper procedure; it also endorses the claims raised by the pro-Prop 8 lawyers that some pro-Prop 8 people have been harrassed, even physically, and says that there could be “irreparable harm” in letting cameras in.

Never mind the fact that we’re not even talking about broadcasting the trial on the internet — we’re just talking about broadcasting the trial in five federal courthouses.

So, is this an attempt to paint pro-gay-rights people as crazy harrassers? What about the people who get gay bashed? What about kids who get driven to suicide because their classmates taunt them for being gay or even just for being effeminate? Granted, the anti-Prop-8 people apparently didn’t bring that up in their arguments. But in citing “irreparable harm,” the majority opinion seems a little too sympathetic to the anti-gay side here. And again, that worries me.

So “irreparable harm” rears its ugly head again. It’s a valid legal concept, and there’s nothing inherently wrong with it. But I can’t help but remember that it came up in Bush v. Gore, too. There, Justice Scalia said — in an example of great chutzpah: “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”

I really hope this procedural order isn’t a portent of how the case turns out.

Obama Has Me Feeling Down

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For a while I’ve had the idea of writing a post from an alternate universe, where Hillary Clinton is president, and things are going horribly for the Democrats, and we all say, “Darn, if only we’d only elected Obama, things would be going so much better for us!”

I’m feeling down about politics again — Democrat Martha Coakley is in danger of losing her Senate race against Republican Scott Brown, in Massachusetts of all places. If Coakley loses, that leaves only 59 Democrats in the Senate, which means that health care is dead unless the House passes the Senate bill as is. (Or unless both houses get their shit together and vote on a compromise bill already. The Senate passed its bill three weeks ago! What’s taking them so long?)

In the past I’ve blamed Harry Reid for the Democrats’ problems. But I also blame Obama. Things should never have gotten to the point they did last summer, when the “death panel” rumor ran rampant. The New Yorker article on marriage equality that I linked to yesterday has a part that struck me, about Chad Griffin’s experiences working on Bill Clinton’s 1992 campaign:

But the Clinton “war room” remained Griffin’s model of how to make noise in the world. “Every single hour was strategic,” he recalled. “I was this little freakin’ kid hanging around watching Paul Begala and James Carville and George Stephanopoulos. They did not let the opposition gain an inch, and if it did they knocked it down with firepower.”

Can anyone describe the White House efforts at health care reform that way? No.

It’s funny. In 2008, all the anti-Obama people were saying, “Obama’s an idiot, he’s all flash and no substance, all he knows how to do is give a speech.” But in fact, that wasn’t true. I can’t remember where I read this, but there was an article in 2008 saying that Obama as a candidate actually started out really wonky and earthbound and uninspiring, and his campaign managers had to convince him to spice things up a bit, inspire people, use more poetry instead of prose. But now that he’s president, he seems to be just a policy wonk again. Candidate Obama was full of inspiration and hope, but President Obama is just boresville. He’s Calvin Coolidge.

Sometimes lately, I find myself wishing that Hillary Clinton had been elected president. But who’s to say that things would be better if she were in the White House? It’s tempting to say, “Darn, Hillary Clinton would have been a much better president than Obama! She would have kicked ass!” But there’s no way of knowing. She might have turned out to be a bad president: remember her disorganized primary campaign, her wooden speaking ability, the landing-in-Bosnia-under-fire thing. Could she have gotten health care legislation as far along as Obama has? I can just as easily see her overplaying her hand and screwing it up as I can see her intimidating the Republicans and keeping all the Democrats in line.

When we imagine that things would have been better only if things had turned out differently, it’s basically “hope” aimed in a different direction. “Regret” and “hope” are cousins. In each case, we’re imagining some alternative world where things are going much better than they are now: it’s either the future (hope) or an alternate universe (regret).

There are, of course, factors outside of Obama’s control here. If Ted Kennedy hadn’t gotten cancer, there would be no special election in Massachusetts to worry about right now. If tons of white people weren’t racist and xenophobic, there would be no Tea Party movement to deal with. But there’s a lot more Obama could have been doing these last few months other than being idealistic.

Anyway, there is nothing that I, myself, can do to change anything going on in politics right now. So I can continue to follow it and get depressed about it; or I can just ignore it, which isn’t going to happen, because I’m a politics junkie. Finally, there’s the third option, which is that I can continue to follow it and realize that there’s nothing I can do about it so there’s no point in getting depressed about it.

I will probably choose the last one.

New Yorker on Marriage Equality Lawsuit

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The New Yorker has a terrific article by Margaret Talbot on the marriage equality case, Perry v. Schwarzenegger, that began yesterday in San Francisco. It has pretty much everything you need to know about the case from soup to nuts.

I have to admit that while I was very leery of this lawsuit and thought it was a terrible idea, the more I read and think about it the more excited I am. It feels good to be going on the offensive. Ted Olson may be a Dark Lord, but in this case he’s our Dark Lord. By which I mean that he’s a top-notch lawyer, and it’s great that he’s finally using his powers for good. If there’s going to be a marriage equality case before the Supreme Court, we couldn’t have stronger legal representation.

And yes, it’s possible that the case will wind up in the Supreme Court and that we will lose. On our side: Ginsburg, Breyer, hopefully Sotomayor, and hopefully whoever replaces Stevens after he likely retires this summer. On the other side: Scalia, Thomas, Roberts, Alito. In the middle: Anthony Kennedy, who wrote Romer and Lawrence and therefore would seem to be on our side, but you never know, especially since it would be a really big deal for the Court to overturn the laws of 39 states. Some say that if we lose, it will set gay rights back for years. On the other hand, what do we really have to lose? And if not now, when? Roberts, Alito and Thomas are all young, and Scalia could be on the Court for another 10-15 years. The makeup of the Court isn’t going to change in our favor anytime soon.

More importantly, this case is a great teaching moment. From the list of witnesses that Ted Olson and David Boies have put together, it looks like the case will touch on everything from marriage to discrimination to child-rearing to children’s education to so-called “conversion therapy.” Despite the ballot initiatives and the state legislatures that keep going against us, the more we discuss marriage equality, the more the public gets on our side.

On the other hand, if the Supreme Court rules in our favor, it could give fuel to the movement to pass the Federal Marriage Amendment. But you know what? I can’t see 67 U.S. senators voting to enshrine discrimination in the Constitution. And I’m tired of worrying about what our opponents are going to do if we fight for our rights. We’ve been timid for too long. What happens, happens.

Interestingly, there’s another federal marriage equality case going on right now, Gill v. Office of Personnel Management, which seeks not to overturn state laws against marriage equality but rather to overturn part of the Defense of Marriage Act. Gill seeks to force the federal government to recognize same-sex marriages that were validly performed in a state that recognizes them. Normally, if, say, Massachusetts allows a marriage to take place, the federal government doesn’t second-guess Massachusetts and refuse to recognize that marriage. Why should it be any different in the case of same-sex couples? This is what the Gill plaintiffs argue, and in a sense it’s a more palatable case, because it seeks not to overturn state laws but rather to strengthen them. It’s not clear which case will get to the Supreme Court first, Gill or Perry.

In the meantime — still waiting for Obama to stop discharging U.S. soldiers for being gay, and for Congress to repeal Don’t Ask, Don’t Tell.

Damn, I’m tired of waiting.

Leno vs. Conan

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I find this Conan O’Brien vs. NBC thing so riveting, especially now that Conan has released a statement saying he won’t do The Tonight Show if it airs at 12:05. Oh my god! Drama!! What’s gonna happen?

Seriously, I do think it’s riveting. Jeff Zucker has really driven NBC into the ground. When I was a kid, NBC was the network to watch. My parents watched The Today Show with Bryant Gumbel and Jane Pauley every morning while having breakfast or getting ready for work. At night, NBC had all the great sitcoms that kids my age enjoyed: Diff’rent Strokes, The Facts of Life, Silver Spoons, Gimme a Break, even Punky Brewster. On Saturday mornings it had the Smurfs. When I was an adolescent, I would watch Days of our Lives and Santa Barbara. As I got a little older, NBC had Family Ties, and then The Cosby Show, and then Friends and Seinfeld. Even today, it has some great comedies on Thursdays: 30 Rock and The Office. And we watch Brian Williams on NBC Nightly News every night.

I used to feel this weird loyalty to NBC, even though it was just a TV network. I felt like the three networks had personas. Even though I watched some CBS and ABC shows, watching CBS and ABC felt like going over to a friend’s house where everything seemed slightly off. NBC just seemed like the network that had everything I liked.

But Jeff Zucker has ruined NBC: first the horrible but cheap-to-produce reality shows, and then this debacle of Jay Leno at 10 p.m. Moving Leno to 10 p.m. was a risk, and while it’s true that if you don’t take risks, you don’t get anywhere, you also don’t mess with something on TV that works. Zucker messed with something that worked. Jay Leno at 10 p.m. is New Coke.

On the rare occasions when I’ve watched Leno on TV, I’ve found him annoying and boring. But for whatever reason, lots of people like him — as long as he’s on at 11:35 and not at 10. You can make fun of the public for liking him, but really, what’s the point? Many people like things that I don’t, and vice versa.

And I have to admit, I watched Leno’s final Tonight show last May and was entertained. He did a “best of” compilation of those idiots on the street who don’t know the answers to questions, and it was pretty funny.

But these days I’m generally ready to go to sleep by the time I finish watching the first half of The Daily Show. And you know what? Once you get used to watching Jon Stewart every night, it’s really weird to watch the old-fashioned host-striding-out-and-doing-jokes-before-an-audience thing. Even if the host is Conan O’Brien, and even if the jokes are funny.

Oh, and as for David Letterman? He’s not always easy to watch, and I don’t always get or like his humor, but I admire him deeply and I’m in awe of his talents. I guess it has something to do with this terrific profile of him from last September, when he was caught up in his sex scandal. An excerpt:

Craggy, bewildered, irascible Dave, with his gray crew cut, designer suits, and white socks — a nightly mind-blowing image in HDTV — has become a persona, a distinctive agglomeration of character traits, even more than his idol Johnny Carson, much more like Carson’s own idol, Jack Benny. His monologues are indifferent as one-liners and jokes, but the character who delivers them is one memorable American. He can reel off dozens of Obama jokes and McCain jokes and Paris Hilton jokes, but it is when Letterman begins to invert and mutter, when his personal neuroses and raw wounds are inflamed by the assaults of everyday life— and whose aren’t? — that is when he becomes something more than a good comedian and something like the scarred protagonist of his own comic novel — a bewildered, gutty mid-lifer at the crash intersection of American culture.

As for Conan O’Brien — he’ll be okay. He’s rolling in dough no matter what happens. Maybe he’ll go to Fox. Maybe NBC will cave in and put Jay somewhere else (doubtful).

The network has treated him like shit, but that’s showbiz.