Judge Takes Election Fire over Marriage Ruling

Brian Leubitz knows he doesn’t have much hope, but nevertheless is making a last-minute push to get William McGuiness voted off San Francisco’s First District Court of Appeal.

On his “No on McGuiness” Web site, Leubitz, a non-practicing lawyer and a blogger on Calitics.com, urges voters in the 12 counties served by the First District to reject McGuiness for authoring the Oct. 5 ruling against same-sex marriage.

McGuiness is up for retention.

Leubitz, who’s seeking a master’s degree in public policy from UC-Berkeley, compares the 2-1 ruling in In re Marriage Cases to Plessy v. Ferguson, the infamous 1896 U.S. Supreme Court ruling that required blacks to be segregated from whites on railroad cars.

“I think he’s very qualified,” Leubitz says of McGuiness on his Web site. “[But] that’s not the issue. William McGuiness made a terrible decision that says that separate but equal is jolly OK with the California Constitution. A decision that denies equality for a substantial segment of Californians. That is not OK.”

Leubitz says he believes the judiciary should be “completely independent” of the voters, but that a message needs to be sent. He notes that conservative voters yanked three state Supreme Court justices — including Chief Justice Rose Bird — off the bench in the mid ’80s over their position against the death penalty.

Conservatives in the mid ’90s tried, and failed, he noted, to remove two Republican justices, including Chief Justice Ronald George, after they voted to strike down a state law requiring parental notification when minors get abortions. It’s time for liberals to push back, Leubitz says.

“My involvement in this particular campaign really began when I opened my absentee ballot and realized that McGuiness was on the ballot,” Leubitz said in an e-mail to Cal Law.

“It was definitely a late start,” he added, “and likely won’t actually make a huge difference in terms of the actual election. But I’m trying to create some semblance of a pushback to the right-wing No campaigns [e.g. Ronald George in 1998]. I’m trying to spread the word about this election as much as possible.”

Leubitz’s idea isn’t without its appeal to many in San Francisco’s gay community. Word on the street has it that several gay voters either plan to vote against McGuiness’ retention or already have done so via absentee ballot.

Even the community’s outspoken newspaper, the Bay Area Reporter, advises in its editorial recommendations that all appeal court justices up for retention be retained — all, that is, except McGuiness.

Under a “send a message” caption, the B.A.R. says: “Those who are smarting from [the] appellate court ruling against same-sex marriage can send a message to one of the judges who decided the case by voting against his bid for another term.” It notes that McGuiness authored the ruling.

The newspaper’s and Leubitz’ efforts probably won’t succeed, but you can almost bet you’ll see McGuiness retained with a slightly lower margin than his comrades on the bench.

Mike McKee

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