July 4th, 2017 – Second Reading Podcast

[0:00:00 Introduction] Welcome to the second reading podcast from the University of Texas at Austin. The Republicans were in the Democratic Party because there was only one party chart. Tell people on a regular basis there is still a land of opportunity in America. It’s called Texas. The problem is these departures from the Constitution. They have become the norm. At what point must a female senator raise her hand or her voice to be recognized over the male colleagues in the room

[0:00:32 Jim] Hey there, Jim Henson Here again, Welcome back to the second reading podcast for It’s Not technically the week of July 4th, but it’s the week of July July 4th week, and this will be the final podcast for the first summer session. So congratulations those of you winding down on the course and good luck getting ready for the final. Um, happy to be joined again this week by my colleague. That didn’t sound like that, Actually, didn’t sound like I meant it, Did it? Really Good luck getting ready for the final.

[0:01:01 Josh] Your judgment, The part reason you’re happy to be joined again by sound

[0:01:05 Jim] sincerity is just bleeding through. I don’t know no, but really I mean, I meant both of those things. So Josh and I Are you still ready for the fourth of July? I didn’t realize we were gonna be recording again before the fourth of July, and we played it before the July last weekend.

[0:01:20 Josh] Yeah. I mean, I’m probably more ready than says last week.

[0:01:23 Jim] Are you even more eager?

[0:01:25 Josh] Um,

[0:01:27 Jim] have you bought the food? You’re gonna grow?

[0:01:28 Josh] Yes. Okay. Yeah. Food beers in the fridge. Food is ready to be grilled. I’m gagging. Yeah, right. I’m excited.

[0:01:35 Jim] We’re not necessarily endorsing either alcohol or meat, for that matter. Well, maybe a

[0:01:40 Josh] law. I am

[0:01:42 Jim] all right. We want to focus today. On a decision handed down last week by the Texas Supreme Court that reversed a lower court ruling that said spouses of gay and lesbian public employees are entitled to government subsidized same sex marriage benefits and the supreme. The State Supreme Court on Friday unanimously ordered that the case kind of kicked out an earlier reading and a no earlier ruling that had not seen this is legit and ordered a trial court to reconsider the case. And by not seen is legit. Clarify In other words. They said that they shouldn’t. The lower court had said cases settled. Somebody had sued the city of Houston over them, providing same sex conservative activists. Exactly. Yeah, to be fair, Um, and the case had been thrown out. They appealed in the Supreme Court, in fact, cited with the original litigants saying, Yeah, they have to reconsider the case. So, you know, the specific issue is the extension of benefits insurance, etcetera by the city of Houston to its employees. Now, this case, I think they’ve got to be some people out there going Wait, I thought this was settled, and this case does raise a lot of issues. So let’s let’s start with the legal status of gay marriage itself, which is the most obvious thing to respond to here. In the sense of we thought this was kind of settled already,

[0:02:57 Josh] right? I mean, so after you know the Supreme Court decision and I guess 2015 which basically extended, you know, marriage rights to gay and lesbian couples. Basically, that issue was over was over government benefits. It was about, you know, whether gay and lesbian couples were, you know, eligible for the same benefits as heterosexual married couples. Ah was basically the main push here behind that and more

[0:03:21 Jim] broadly, the same legal status, but benefits with things that were really That’s

[0:03:25 Josh] the thing about legal sadist. Usually that’s what you’re talking about. His benefits. Health insurance, right? The legal status provides you with the benefits. I mean, the key here also is I mean, you were talking about Houston and the Texas Supreme Court. I mean, this is also about the state of Texas. Broadly, I mean, the issue here was the Supreme Court. The U. S. Supreme Court issued this ruling and then pretty quickly, you know, because where you were here at the University of ST Universe that he said, Hey, you know, if if you’ve been married another state in your gay couple and you want apply for benefits, you can now a City of Houston to the same thing about the cities moved ahead. There was a little bit of consternation right when that happened at some level around the state, but it’s pretty much accepted that, you know, this is what this meant at the time

[0:04:04 Jim] that in fact, the state had some federal lawsuits pending that it kind of quietly dropped in the wake of this

[0:04:11 Josh] right on there. Some other little outcroppings of politics that kind of spurred up around this. But for the most part, it was pretty much thought that this is this is what this meant. And so, basically, you know, a couple of conservative activists decided, you know, we’re going to sue the city of Houston for extending benefits to gay couples. And what originally happened was they had sort of push the thing along and said, You know ah, should you know, basically, they got thrown out. As you said, the Supreme Court says you gets petition to hear this the State Supreme Court and they said, Yeah, I know this is They basically said, no, this is this is settled. We’re not interested. And then there were letters at written by the governor, Lieutenant Governor, the Attorney general, all Republican statewide officeholders. And, you know, we really think you should reconsider your decision not to hear this case, including also a lot of conservative activists. Pastors. Basically, the Supreme Court was lobbied,

[0:05:03 Jim] right? They got pressured.

[0:05:04 Josh] And then they said, Well, okay, I guess we’ll hear the case and then then the ruling they released on Friday. What they basically said was, Well, you know, the Supreme Court and this is the quote did not hold that states must provide the same publicly funded benefits to all married persons, which was basically how the trial court had decided to throw this out.

[0:05:24 Jim] Read the Supreme Court decision,

[0:05:26 Josh] right, read the Supreme Court decision. And so they said, you know, given that we don’t think this is what they said, you need to reconsider how you apply the law in this case. So, you know, that’s a look. I’m not a lawyer. As I said, I’m not a judge, you know,

[0:05:41 Jim] just play when

[0:05:41 Josh] I play one on podcast. But it does seem to me that this is the sort of way of saying, Look, the Supreme Court didn’t say this thing really is extremely explicitly and so therefore we don’t know, right? So we’re gonna basically kick this back to you to try again. I

[0:05:54 Jim] mean, basically, what they said was, I think the lower court had had read it overly broadly I had read with this week. But the Supreme Court decision seem to be broad in the sense of being comprehensive, as I read it, right. And I think, as it’s been read in many other cases

[0:06:09 Josh] and how it was red when it was originally handed down. So it seems like there’s, I think, like probably three paths. This could take a this point right one, you know, basically goes back down the trial court. They look at it again and they say, Yeah, I know. We still think this is the same thing, right? And then basically could get kicked back up to the Supreme Court, they could say, Yeah, okay, fine. Which they could totally for themselves.

[0:06:31 Jim] No, we followed our directions,

[0:06:33 Josh] right? They could take it on themselves. And now we get to the branch. They could take it on themselves and say, Yeah, that seems to be right, you know? Or they could take it on. Say, that’s wrong. In which case, it will certainly be appealed to the U. S. Supreme Court, which, based on the original decision, will probably actually say no. The truck was probably right. Yeah, you know, the trial court could take it and basically side with the conservative activists say, I guess they don’t need to extend these benefits, in which case that will then get challenged back.

[0:07:00 Jim] The other side will then appeal it, and then we’ll just see some variation of the same of the same path.

[0:07:05 Josh] Exactly. Needless to say, this is kind of way to just keep this in the courts for a while

[0:07:09 Jim] right now. It’s like, you know, this. This reads. This leads us to another question, which is, you know, how much is this? Inflected by the fact that in Texas all of these judges that made these decisions, unlike the thing, the U. S. Supreme Court, where the judges are appointed all these Texas judges are elected in elections, just like the governor, Lieutenant governor, attorney general who wrote them letters, meaning they have to go through the primary process. They’re all Republicans. They’re all then subject to a very conservative electorate that we know is, ah, much smaller subset of the state population. So, you know, we’re then stuck in this position where we are frequently in Texas, where we’re trying to balance, you know, how much can we trust the judgments of these judges to reflect both, ostensibly, what we want, which is that they are elected officials that are answerable to the public but on the other hand, have a judicial temperament, which is they are reading this case on the merits on precedent on all of the things that we presumably expect the justice system to work on. And it’s hard not to look at this and conclude that there are some politics and play be in the timetable here. I think matters in terms of the paths that you’re talking to. There isn’t one of those paths. It’s gonna happen quickly, right? It takes a long time to get things scheduled. There’s a lot of discretion at the at the at the court level. You know, my sense is it’s July of UNLV or the case gets headed down, typically the very end of June 2017. There is a primary season that is, you know, unofficially started. Um, we’ll have a primary problem, you know, a zoo of the current scheduling in March of 2018 and we will have almost certainly no significant action or decisions on this when the primaries take place,

[0:09:05 Josh] which is basically what everybody wants, who’s involved in this process from from the judicial standpoint,

[0:09:10 Jim] because the way that it plays out in the primary, then, is that Republican candidates can say that in fact, they’ve done their part to fight something that is still, you know, not not popular among a lot of conservative Republican primary voters. And, you know, nobody can campaign against a bunch of judges saying that, you know, is under primary saying that they legalize gay marriage in Texas, even though that makes no technical sense. This is to be fair, Um, and you know the other statewide officials and everyone else and say that they’re doing their part to fight, you know, liberal, secular, Yeah, you know, political forces emanating from elsewhere,

[0:09:53 Josh] you know, going back a beat. I mean, it’s interesting to me about this. Case is you know, you sort of when you read about the judicial system in Texas politics and the elected, you know, sort of elected judges. It’s always very abstract. These arguments pro and con arguments about you know you want judges who are, you know, responsive. Teoh. You know the popular pressures into the people. Or at least you certainly don’t want them totally insulated from that, right? On the other hand, you know, then politics can creep into decisions and people say, Well, that never happens And it’s like, Well, you know this. I mean, I think what’s interesting about this saying, you know, where you come down on the issue of gay marriage is just the fact that you can see those tensions right? You can see the Supreme Court originally reacting to what seemed to be a pretty clear U S Supreme Court decision, saying, You know, this is what’s going on, being pressured by sort of the most farm or well known political, um, your figures in the state, right, reacting to it. But then even in the way they handled it, you know, it kind of shows the attention, right, because originally there their judgment said, Yeah, there’s nothing here, so we’re just gonna send this back then they take it. And the truth is, they could have ruled that, you know, the trial court had misapplied in the Supreme Court decision, did not go this far, and therefore they could have ruled that the trial court was wrong. But they didn’t do that.

[0:11:08 Jim] In summary, this is unusually transparent and awkward. E I mean, if you think about the interview

[0:11:14 Josh] trying to do both. Here is the main point right there, both trying to react to the partisan pressures by sort of taking the case on and service that keeping it alive. But also they could have gone much further if they really believed that. You know, sort of the argument that were being made by conservative activists and about how to interpret the Supreme Court decision was correct. They could have just said yet that’s the way it is for the state.

[0:11:35 Jim] There’s a mix of politics in and a nod towards procedural integrity here on my, you know, put diplomatically, I guess, um, you know, Aziz, you describe that as we think about this. If we talk about it, I mean it. It is interesting how unusually public this is, and it’s a combination of a certain amount of, you know, it’s a little tortured,

[0:12:00 Josh] really disguises so well,

[0:12:06 Jim] so clearly. Um, well, I mean, you know, you know what’s happened is a little tortured, and it’s a little public, and it’s an interesting it’s issue to think about it in the context of, you know, the the students in the course. And, you know, we did the interview with Wallace Jeffords, former Chief Justice Wallace Jefferson. And he’s been a big advocate of reforming this system of elected judges and thinking That doesn’t really work, you know, he was really talking more about the campaigning and the time, commitments and appearances. And, you know, this is this is kind of an outlier case in the in the extent of its publicity and the straightforwardness with which, you know, now that isn’t neither makes nor breaks the case, But I think it is. What’s one thing to really notice about this, right? And and And, you know, another piece of this is the, you know, public opinion is pretty complicated on this, but shows clear partisan patterns,

[0:13:01 Josh] right? So we’ve we’ve been polling on ah, on gay marriage here in Texas for quite a while, in fact, so long that we actually have our trend kind of got ruined. So we had this question for a while that basically asked people whether they think that gays and lesbians should have the right to marry should have the right to civil unions, which you may not even know was a thing given your age or just basically not have a right to gay marriage or civil unions. That was the question we had for a long time on R UT Texas Tribune polls because there were still a discussion about whether you know there’d be the sort of full marriage rights or the sort of subclass of like civil unions or whether everything should be civil unions. And marriage is a religious institution. What,

[0:13:35 Jim] and what civil unions were? Well, you know, it would basically was was a way of taking care of some of these benefits is basically the legal status. It gave you a legal status that somehow enabled people to separate it. Not somehow that enabled people to separate it from the religious status accorded to marriage,

[0:13:54 Josh] right, And eventually that, you know, sort of fell by the wayside. And it was sort of marriage equality. We’re nothing. And we shifted, sort of to basically, you know, question. Moralizer, you know, should get gays and lesbians have the right to marry or not. We’re not basically and so, you know, going back Teoh 2015. You know, Texas was pretty split. It was about, you know, 43% supported gay marriage, 43% opposed. It’s pretty sharp. Partisan differences. Of 59 to 60% of Republicans were opposed to gay marriage, 65% of Democrats were supportive of gay marriage. Fast forward to basically June 2017 and the state has become, you know, majority supportive of gay marriage 55% of support, at 32% opposed. But this partisan patterns still sticks. So where his Republican support has increased from about 25% to 32% majority Republicans, 52% still opposed gay marriage checks.

[0:14:47 Jim] And that’s the key number

[0:14:48 Josh] on that. Remember debts around all Republicans. If we start to sail. If we look at the most conservative corners of the Republican elected, the sort of small groups of you will actually show up in Republican primaries. That’s act in the sort of people who actually are probably gonna be aware of a gay marriage

[0:15:02 Jim] at all. This is going on

[0:15:03 Josh] the decisional, any gay marriage to the Supreme Court justices in Texas. You know, those that opposition is much higher down in terms

[0:15:10 Jim] of the mechanics of that. You know, basically those people that have the most the most intense opinions are going to be the people that are gonna be the targets for mobilization for male. For all the efforts to get out the vote in the Republican primary,

[0:15:24 Josh] right, cause I mean, basically, if you think about, like who shows up in the Republican primary, which you can basically say is it’s the most conservative of conservative voters in the most conservative elements of Republican Party and not totally distinct, but a little bit is also sort of religious fundamentalists,

[0:15:40 Jim] right? Vengeance, Evangelical Christians,

[0:15:43 Josh] right? Who are, you know, obviously very opposed to gay marriage, right? And so that’s where you can kind of see the politics of this intersected both the pressure that was being exerted on the governor and the lieutenant governor and the attorney general. Not that they disagree, but also that’s where they’re getting feeling the pressure points. And that’s what they were channeling to the justices to remind them about which the justices clearly reacted to it. Say, Well, let’s you know, I guess we’re gonna reacted to something right, Um and so that’s why you know, there’s no reason, like just because the Supreme Court decided this and everyone sort of I said, Oh, well, this is decided now, not so fast, because in the end, elected officials, including judges, are responsive to the public’s that elect them. And in Texas, the majority part, a majority of the majority parties public is still not come along and accepting that this is kind of a lot of land now.

[0:16:31 Jim] And so basically, we’re gonna talk about it a little more. Yeah, and we’re gonna talk about it a time that happens to be in the run up to the primary.

[0:16:40 Josh] Yeah, and you’re gonna fight the good fight. I mean, that’s the other part of this, right? I mean, I’m not saying it’s the good fight person. Yeah,

[0:16:45 Jim] but that’s the signal you’re sending to this constituency.

[0:16:47 Josh] Your may lose and you probably are gonna lose, is what it looks like. But the point being I mean, now, look, maybe not. I mean, part of is you draw this out. Ruth Bader Ginsburg, you know, dies or retires. You know, Justice Bryer retires.

[0:17:03 Jim] Maybe there’s a reversal of

[0:17:04 Josh] this. Yes.

[0:17:05 Jim] Or at least some. Some, you know, sense of a little bit of roll back. I doubt there’s whole reversal, but point will take,

[0:17:11 Josh] but it’s not impossible, but the point is, at the same time, this is more about, you know, showing that you’re still fighting.

[0:17:16 Jim] It’s signaling, basically. I mean, it enables the elected officials involved a signal to the audience. They want to signal to that they agree with them,

[0:17:24 Josh] meaning the most notable thing you know, in some ways about this and it’s only come out comes we’ve been talking about. It’s a point I made. So let me go back to it is

[0:17:32 Jim] excellent because I don’t know which one

[0:17:34 Josh] is a very good one. But I think it was that, you know, if the judges really wanted to, they could have made a much more forceful show on this. The fact that they didn’t kind of shows that they know that they’re probably would just be precipitating, you know? So

[0:17:49 Jim] you know what the most likely path this is gonna take

[0:17:53 Josh] right? Which is it goes to the Supreme Court. The Supreme Court says now

[0:17:56 Jim] that we’ve already

[0:17:57 Josh] this is our even decided

[0:17:59 Jim] right, And that was a good point. That was good points. I thought that as you were saying it, um you know, and so I think you know, before we wind up and we’re gonna we’re gonna keep it short is a gift to people because you’ve got studying to Dio. It’s July 4th week, but one thing, it against you kind of step back. You can kind of see this in the overall pattern of things that we’ve been talking about in terms of the sequence of where this state is and kind of the political cycle. Right? So we’re going into this special session in which much of the agenda of the special session is actually of a piece of the political thinking that seems to be informing both. You know, the state officials pressure on the court and the courts response to that pressure And that is we’re in the part of cycle with statewide elected officials are all running. There’s gonna be a relatively, um, high profile primary election. They probably won’t be a ton of contests at the top level, But there’s a lot of positioning going on that is very hyper aware of what deal the composition of the electorate is going to be in that election, and that’s rippling through institutional and individual behavior.

[0:19:09 Josh] Well, just to say I mean that sort of positioning and the lack of competition is endogenous. You can look it up right, because they

[0:19:17 Jim] its internal to the process pairing

[0:19:19 Josh] at I want to look it up. But the point that’s gonna be a good test

[0:19:22 Jim] question. Is there something orthogonal to that?

[0:19:25 Josh] Oh, there’s definitely things that are thought and all of that. But anyway, as we’re fond, But the point here is part of the reason that it’s gonna be a relatively, you know, unchallenging process for the statewide officials in terms of who is gonna, you know, challenge Governor Avatar, Lieutenant Governor, Patrick or packs. And is all this business

[0:19:41 Jim] or any of those just

[0:19:44 Josh] right. Is all this positioning? I mean, it’s pretty clear. Had the judges kind of continued and decided and with their original decision, not hear this case, the likelihood that they would have faced a primary challenge would have increased dramatically.

[0:19:54 Jim] Right? So, and with that, uh, hope you enjoyed the class. Hope you’ve enjoyed the podcast. Good luck wrapping up the class and enjoy the rest of the summer. Second reading Podcast is a production of Texas Politics Project and the Project 2021 Development Studio at the University of Texas at Austin.