I love it any time I see a new piece by Andrew Klavan in the L.A. Times. Today’s is about sex scandals. Here’s a taste:

My fellow Republicans urge me to high dudgeon . . . . Moral standards have to be maintained. Family values are a linchpin of our society. All of which I suppose is true. Still, I can’t help thinking: How about reducing this tumor of a government that’s eating away our liberties? How about enforcing the law of the land at our borders? How about fighting our enemies with rules of engagement that weren’t written by Miss Manners? Then maybe we can talk about the whole rumpty-tumpty of it all.

Then there are the Democrats. It’s not about the sex, they say, it’s about the hypocrisy, the gall of high-sounding conservatives caught out in low shenanigans. And, you know, nice try, guys, but that’s just a little too self-serving to really play. I mean, this is the party of Ted Kennedy and Bill Clinton. What’s your argument exactly? “We may be drunks and adulterers and liars — but at least we’re not hypocrites”? You’re going to have to do better than that.

Read it all here.

(It’s also an illegal statute, but we won’t even mention that.)

Here in California, the legislature just (for the second time) passed a law authorizing gay marriage. A previous version was vetoed by Governor Arnold Schwarzenegger, and both sides expect him to veto this version.

The L.A. Times considers it such non-news that the state legislature voted for gay marriage that they relegate it to a “by the way” second paragraph in a story that is primarily about the rejection of an unrelated sentencing guidelines bill:

With federal judges pondering a cap on California’s prison population, a measure that experts say could ease overcrowding fell to defeat Friday in the Legislature.

But lawmakers voted to legalize gay marriage by passing a bill that is almost certainly headed for a veto.

Another thing the story neglects to mention: the statute is illegal if it purports to change the law without submitting the issue to the consent of the voters of the state.

Longtime readers know that I am a supporter of legalizing gay marriage, but only when it is done legally. I want it to be done by legislatures and not by courts. And I want it to be done by legislatures only when it’s legal for them to do so under the state constitution.

But in this state, it is not possible for the legislature to legally pass a law authorizing gay marriage, unless the matter is submitted to the voters for their consent. That is because Proposition 22 — which I voted against, but which is the law in California — states:

Only marriage between a man and a woman is valid or recognized in California.

That language is quite clear — and so is the method for changing any statutory change made by initiative. As Dafydd ab Hugh explained here in 2005, the California Constitution states that statutes purporting to change initiative statutes (like Proposition 22) become valid only when submitted to the voters for their approval:

The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.

Proposition 22 contains no such provision.

The L.A. Times story doesn’t mention anything about the argument that the statute is illegal. Heck, the fact that one of the largest states in the union passes a bill authorizing gay marriage isn’t even worth its own story — where are they going to find the space to tell readers that the bill is illegal?

UPDATE: Changed “referendum” to “initiative” in the phrase “the California Constitution states that statutes purporting to change initiative statutes . . .” That was the point of the sentence, but due to a brain glitch I wrote “referendum” when I meant “initiative.”

[Guest post by DRJ]

I’d pay good money to listen to the tales told by these two legal legends:

“For octogenarian legal legends Richard “Racehorse” Haynes and Joe Jamail, deciding to stop practicing law would be akin to choosing to stop breathing.

“Stop doing what? This is not work,” said Jamail, the cursing, clever, long-ago-dubbed King of Torts. “This makes you feel like you are worth something. We can still do good for others and do good for ourselves. I would wither and die, truthfully. I need to be somewhere where the light’s on me.”

Haynes, the witty and gentlemanly criminal defense lawyer, recalls the prior generation’s legal master Percy Foreman warning him that the law is a jealous mistress “but they don’t explain that the law is a nymphomaniac.”

(more…)