Editor's notes

Outlook is Supreme-ly sunny for gay marriage

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EDITOR'S NOTES The two prominent lawyers who helped bring same-sex marriage to the US Supreme Court, Theodore Olson and David Boies, started out their case with the notion that it would get to the highest court, and that the Court would find a fundamental Constitutional right to marriage equality.

They're both brilliant litigators who have argued more than 50 cases before the Supreme Court — and they think they know something. I can't get into either man's brain, but what legal scholars around the country are saying is that the fate (for now) of same-sex marriage may come down to one person, Justice Anthony Kennedy. And they figure he's going to be on the right side.

I wouldn't be surprised — those two have been here before, parsed this court, and been right enough to give them the benefit of the doubt. In fact, although 30-some states still ban same-sex marriage, I think the members of the Court see the direction that history is going. It's moving fast, too — in five years, the tide will have fully turned, and the Court doesn't want to be horribly embarrassed.

Kennedy, of course, is often the swing vote on the divided court — and in two prior cases, he wrote the decision affirming gay rights.

Kennedy was appointed by Ronald Reagan, but what hasn't been mentioned much in the press was that he was a second choice. Reagan wanted Robert Bork in that position — and if Bork had gotten the job, we wouldn't be having this discussion. Bork is another Antonin Scalia and would have held down the right wing of the Court and ensured a 5-4 right-wing majority.

This goes back to 1987, ancient history for a lot of political people today. When Reagan, who mostly got his way, nominated Bork, an unheard-of coalition came together to oppose him. It seemed a long shot — it was rare for a Supreme Court nominee to get rejected. Some argued that it wouldn't matter, anyway — if Bork lost, Reagan would nominate someone else just as bad.

But the opposition came together. The ACLU, which in its history had only opposed one other Supreme Court nominee, helped lead the way. Women's groups around the country joined in, mostly because of Bork's open hostility to abortion rights. The Guardian ran a front-page piece called "The case against Judge Bork." It was a huge national issue.

Sen. Ted Kennedy led the Judiciary Committee opposition to Bork, and all of us were riveted to the proceedings, which aired on KPFA and NPR. Bork gave detailed answers to all the questions, explaining, for example, why he thought Roe v. Wade was "improperly decided." In the end, his nomination was rejected, 58-42.

Reagan got the message. He nominated Anthony Kennedy — also a conservative, but not a Bork-style nut. And the course of legal history was changed.

So if the Court comes down 5-4 for same-sex marriage, and Kennedy is the fifth vote, we can all thank that massive mobilizing effort a quarter century ago that kept a young, healthy, wingnut who would still be there today from holding that critical seat.

IN OTHER NEWS: The mayor may think the scandal over Housing Authority Director Henry Alvarez is going to blow over, but he's wrong. There are lots of problems in that agency. Among other things, as Citireport publisher Larry Bush has detailed over the past year, Alvarez used his official position (and city time) to go after a nonprofit, the Housing Rights Committee, that was advocating for public-housing tenants. Lee needs to distance himself from this guy, or he's going to get dragged down with him.