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Three Acts on Prop 8: III (A)

March 6th, 2009 No comments

So here we are: It appears very likely that, on or before June 5, 2009, the California Supreme Court will uphold the “right” of California voters to pass Prop 8, taking away a right — the right to marry — that the court had barely more than a year ago deemed fundamental. (Under California law, the court must decide the case within three months of oral argument.) This was a substantial risk that those filing the suit took, and many believed that this legal terrain would have been best left unmapped.

I don’t agree, because I think that the court’s decision, assuming I’m right in my prediction, will underscore that we have substantial work to do to win  “hearts and minds.” The reality that this struggle will continue to be difficult hit home immediately after last November’s elections: While they’re already being forgotten in the California-consumes-all-energy frenzy surrounding Prop 8, initiatives in several other states were also blows to the marriage equality movement. In Florida, for example, more than 60% of voters uncharitably passed an amendment restricting not only marriage rights but other forms of relationship recognition. It remains to be seen how broadly the law will be interpreted.    
But there is plenty of good news, too. As the always eloquent and perceptive Hendrik Hertzberg observed at the time, these measures had the feel of a “last stand.” His piece is required reading for those inclined to despair at recent (and upcoming?) developments and setbacks. Marshalling the pile of relevant polling data available as well as marriage developments in Massachusetts and Connecticut, he argues that the public’s view of gay rights and relationships is moving inexorably in a progressive direction.

He’s right, and things have only moved more briskly since last November. Indeed, Prop 8 may ultimately be remembered not because of its radical removal of fundamental rights from a “suspect class,: but because of the cascade of dormant activism it unleashed. In a post later today, I will offer a review and assessment of the legal, social, and political work that has been done since the dawning of the Age of Obama. As you’ll see, things are getting better.   

More on Prop 8: Quixotic Fundamental Rights

March 5th, 2009 No comments

Breaking my vow to blog only once a day, I can’t resist adding a few comments to my earlier, live-blogging post.First, calling something a “fundamental right” is essentially meaningless if it can be taken away by simple majority rule. Justice George’s opinion for the majority in last May’s In re Marriage Cases ruling contained lofty pronouncements about the right of all people to marry someone of their choosing, and about the clear message in the legislative approach of granting the rights of marriage while withholding the label. If I’m right in my prediction about Justice George’s vote based on his questioning at oral argument, he’s willing to let the people abrogate these rights by a simple majority vote, blaming it on the constitutional initiative process.

(“Riddle me this, Batman: When is a fundamental right not worth a sou?” “When it’s established by the California Supreme Court.”)

The second point is closely related: The process for amending the constitution in California, and indeed the entire direct democracy idea, is just plain loony. I know I’ll regret saying this when Prop 8 is reversed, as I predict will happen within a few years, at most. But even when that happens, one doesn’t need to restrict oneself to Prop 8 to find myriad reasons for questioning this whole process. I looked at the raft of propositions on last November’s ballot and was struck by their range and complexity. Are the voters really equipped to vote a simple “up or down” on a complex statute? Legislators, fed by committees and countless experts, are barely competent to engage in this high degree of difficulty  exercise. Leave the amateurs out of it, please.

Tomorrow I will have final thoughts on today’s arguments and where the movement goes, in California and elsewhere, from here. And although I  typically have no idea what I’m going to blog about in the future, I can state with assurance that next week’s blogs will be rife with withering analysis and condemnation of (some of the) anti-marriage-equality forces, whose sanctimonious dissembling I can no longer bear. First up will be Maggie Gallagher, whom no reasonably intelligent person should take seriously. (As a start, go to Andrew Sullivan‘s blog where he summarizes some of the reaction to today’s Prop 8 arguments, including hers.)         

Three Acts on Prop 8: II

March 5th, 2009 No comments

Well, perhaps I should have expected this: The overwhelming demand for access to the streaming video of the oral argument on Prop 8 means that I couldn’t get on line for quite some time. I just did and I’ll try to catch us up.

Within a few minutes, this looks quite grim. Two of the justices who had voted with the majority to are all over amici attorney Marshall, telling him that the California Constitution gives the voters quite broad ability to amend their constitution, and that Prop 8 is only “a limited exception” to equal protection.Now the discussion is about abolishing marriages in favor of civil unions for everyone. The attorney makes the argument that “nomenclature matters” citing Justice George’s opinion in the earlier case and answers a question by Justice Chin, to the effect that the state, if it’s going to get involved in the “marriage business” needs to do it equally.

The argument has moved to a discussion of the precedent, with Justice Werdeger asking whether there’s ever been a case where a fundamental right has been taken away — and the answer is no. She floats the idea that even if this isn’t a structural revision, it takes away fundamental rights and this IS a revision even if it doesn’t change the basic separation of powers. Justice George slams this, noting that busing and affirmative action referenda have been upheld and these affect fundamental rights (even though the revision v. amendment issue didn’t come up there).

Justice Corrigan tries to boil down the argument, suggesting that the “No on 8” forces are really arguing that any time you want to take a fundamental right away from a suspect class, it’s a revision. That simple. Justice George, who is up for reelection within the next couple of years, questioned whether you could grant a fundamental right through amendment but only take it away through revision. “Is it a one-way street?” Yes, said the attorney.

Justice Kennard finally got to the issue of retroactivity. Are the marriages performed before Prop 8 passed valid? Language in the Prop 8 materials says that “whenever and wherever performed” won’t be recognized. Attorney concedes that this could be read to invalidate marriages, but that (prodded by Kennard) this language is buried in the materials and shouldn’t suffice to overcome the presumption of non-retroactivity.

Next comes an attorney Stewart, representing the cities and towns and we’re back to retroactivity. She says that the language has to be unequivocal. She then fields a softball question suggesting due process problems with invalidating marriages retroactively. Kennard jumps in to help, reminding Stewart that the “whenever and wherever performed” is buried in the fifth paragraph of the rebuttal argument. Her vote on this issue is clear (to me). George wants to test the proposed test for revision proposed here. Asks about same-sex schools, or busing, and whether the proposed rule would render them revisions. Stewart stands firm and says yes.    

Stewart is devastating on the foundational importance of the equal protection guarantee as a compact “to treat each other equally.” Kennard disagrees, says that equal protection is evolving, unlike the structure of government. Stewart says that the fact that we interpret them in light of what we know at a particular time doesn’t make them unimportant. (Well, duh! But are they foundational? She didn’t really answer that.) Justice Kennard noted that sixty-three briefs have been filed, many stating that those justices who agreed that marriages must be granted to to same-sex couples must find Prop 8 invalid. She disagrees. Here, the issue is different: We have a pretty well-established body of law on what’s a revision and what is not. The cases don’t give strong support to the petitioner’s position, she says flatly. It simply overrules one “aspect” of the marriage cases. (Huh?) Cites other cases from other states supporting the position that this is amendment, not revision.

Stewart: This is fundamental. Majorities can protect themselves. She gets deeply into the statements of delegates in creating the state’s constitution, to powerful rhetorical effect.Now comes Mr. Krueger representing Attorney General Gerry Brown,  who has taken the unusual position that it doesn’t matter whether this is a revision or an amendment: It is simply invalid because beyond the power of the voters to remove a fundamental right. Here, I have lost the feed and will pause for air until I get it back (soon, I hope).   

Let’s see, I’ve missed about five minutes. Now Krueger is saying that the court interpreted the right to liberty in a way to make amending it to take this right away impossible. Now George is reading from the constitution’s description of the inalienable rights, including liberty. How do we define it? What’s the consequence of calling it “inalienable”? Krueger: We call it inalienable because it came first within the constitution. George: It’s just a matter of timing? Privacy, for example, came later. Is that less important? What about the right to fish?? So what is the right that can’t be removed? Krueger: The right to liberty.

Baxter is now asking about the death penalty situation, where the court held that capital punishment was cruel and unusual and against the “dignity of man” and the amendment process was validly used to effectively overrule that decision. This attorney for the state is clearly flummoxed now, but regains his footing somewhat. But I’m not sure Baxter (or anyone else) was convinced by his efforts. Krueger is having trouble. Not sufficiently versed in the case law. Does make the case that revisions can’t be used to take away inalienable rights. Interesting point is that the intervenors are disagreeing with the “natural law” argument — since so-called “natural law” seems to ground most of the arguments against same-sex marriage.        

Justice Kennard goes back to the breadth of the amendment power as provided by the California constitution. She’s getting annoying at this point, with endless non-questions and simply reiterating her point. Over. And over. And over. Krueger patiently explains that — yes, of course the people have the power to amend or revise the constitution.

I don’t think we’re going to get anything new thrown at the anti-Prop 8 side at this point. The argument is almost two hours old, and we still haven’t gotten to the attorneys supporting Prop 8. Unless the justices are equally scathing against the other side, I don’t see much chance that the court will toss out Prop 8.

I spoke too soon. Here’s something new. What if Prop 8 had passed without the Marriage Cases coming first? Krueger: Same analysis, but longer because first we’d have to argue that same-sex marriage was a fundamental right.

How do we know a fundamental right?, one justice asked. This is amazing to me given the court’s decision in the Marriage Cases. And Justice George makes it worse, diminishing the importance of his own decision in the Marriage Cases, suggesting that all one would have to do is simply “characterize something as a fundamental right” to say that it couldn’t be amended. But it’s not that simple, as the Marriage Cases state. The court certainly can discern what is a fundamental right. [This may be worth a whole separate post.]

Now they’re arguing about whether there’s a difference between inalienable and fundamental rights. And Justice Corrigan says: “Doesn’t your position boil down to the view that this court should throw out any amendment that it doesn’t like?” No. This court has said that the rights of same-sex couples to marry is fundamental and the state has no compelling reason to abridge it.

OK. Finally, the other side. Here comes the Evil Death (Kenneth) Starr. He starts by quoting former Justice Tobriner to the effect of the right of the people to change the constitution. He then sucks up to the justices by lauding their jurisprudence. Werdeger shuts him up, at least for a minute, by asking why this isn’t a revision given the far-reaching implications.

Starr: This would be unprecedented. He admits that this precise issue hasn’t come up because of the suspect classification issue. Goes through simply naming cases. Only a revision if it changes the fundamental structure of government — not if it takes away rights.George: What if there were a specific amendment that deleted the right of free speech? OK to do by amendment?

Starr: Even there, while it is unthinkable, not a limitation on the power of amendment. So this would be OK. Cites Justice Mosk’s concurrence in the death penalty case, in which he said that even though what the people did in restoring the death penalty was “macabre” and “unenlightened” he couldn’t stop it and it was valid as an amendment.

Werdegar:   Could a Romer v. Evans type of amendment have been OK?

Starr: Yes. People are sovereign and can do unwise things, including things “that tug at the equality principle.”

Well, at least he’s clear. This is a very unsympathetic argument. The people can do whatever they want. Any right can be removed by the simple initiative process. It’s only an impermissible revision if it changes the structure of government.

Justice Moreno couldn’t move him off this point.      

Starr goes on about how minor this is. Then he answers Justice Werdegar’s point that this precise issue has never come up, saying that the court has “said it without saying it.” 

Justice Chin comes back to the point about whether the state should get out of the marriage business. It could, says Starr (and might be inclined to do under the equality principle), but it’s not for the court to do. A recommendation is as far as the court should go.

Uh, oh. Here’s another ramble from Justice Kennard. She picks up on the AG’s theory and asks why it shouldn’t be adopted. The theory is too open-ended and hasn’t been used in principled ways. (One case apparently said there was an inalienable right to scalp theater tix.) Would this theory lean too heavily on natural law? Yes, Starr obligingly answered.

Kennard then asked about retroactivity: They’re not void ab initio but they are invalid. Trying to walk a thin line. Chin asks if it’s fair to throw all of this out, when people acted in reliance of what this court said the law was. Corrigan agreed, brushing aside the “swirl of uncertainty” argument that Starr tried to introduce. George: What if age of consent to marriage were raised to 21? Would marriages between 18-to-20 year olds no longer be married? Starr: No they wouldn’t be. But the law has in fact embraced ameliorative doctrines, such as the putative spouse doctrine (don’t ask!).

Corrigan won’t let go: Aren’t these couples entitled, at least as a matter of equity, entitled to rely on the law as we stated it? Starr: They were validly married but isn’t any more. “No longer valid or recognized….”

If I had to guess, I’d say that those married between June and November 4, 2008 will still be married. Going forward, forget it. It’s time to dive back into the political process. I don’t expect a unanimous decision on either issue, but I’d be surprised if either vote is close. (I do think that there’s at least a chance that the retroactivity issue will be unanimous.)

There’s rebuttal, but I will save further remarks for tomorrow’s post. I don’t expect anything revelatory to happen after about two-and-a-half hours.

Three Acts on Prop 8: I

March 4th, 2009 No comments

In advance of tomorrow’s argument on Prop 8, I offer this cautionary tale. My plan for tomorrow is to “blog live” as the oral argument unfolds, at 9 am PST (noon EST).  

News Item from California, November 5, 2008: “Yesterday, the voters of California approved Proposition 8, a measure that takes away the rights of gays and lesbians to marry someone of their own sex, a right that they had enjoyed since May of this year. Ron Prentice, Chairman of ProtectMarriage.com, which supported Prop 8, had this to say in celebration: “This is a great day for marriage. The people of California stood up for traditional marriage and reclaimed this great institution…. Proposition 8…doesn’t discriminate or take rights away from anyone….'”

Reader: Amen to that! “Gay marriage” isn’t even marriage..   

WordInEdgewise: So the voters could have done the same thing to interracial couples and it would have been OK under the California constitution?

Reader: It’s not the same thing. The right to marry is fundamental but it only applies to opposite-sex couples.

WordInEdgewise: Really? Consider this: The California Supreme Court has held that the fundamental right to marry is meaningless if one can’t marry the person of one’s choice. It further stated that denying gays and lesbians this fundamental right violates their right to equal protection of the laws. Finally, the court stated that any law discriminating against gays and lesbians has to be subjected to the same scrutiny as laws that discriminated on the basis of race or of gender.

Reader: Well, if anything it’s a “new” fundamental right. Prop 8 doesn’t affect any other rights.

WordInEdgewise: OK, then consider whether this would be permissible:

News Item from California, 2010:“In a vote that was not as close as had been expected, the California voters once again surprised the bloggers and bloviators by easily passing a ballot measure that amended the state’s constitution to remove the rights of free speech for gays, lesbians, and bisexuals. Maggie Eddings Bryant, spokeswoman for ‘Yes on Prop 4’ celebrated the voters’ wisdom: “Speech has limits, as the voters have demonstrated. And we don’t allow pornography, fraud, or lots of other kinds of speech. Too often, ‘gay speech’ is nothing more than incitement. We need to protect the institution of speech, so that children – who are somehow forgotten in all of this – learn the right lessons about its importance. And remember that we don’t necessarily know who is gay in these metrosexual times, so there isn’t a problem as long as people don’t identify as gay. ‘Don’t ask, don’t tell’ – it isn’t just for the military any more.’”

Reader: “That’s just nutty! A fundamental right is a fundamental right, no matter who’s being singled out.”

WordInEdgewise: “Really? Can’t we say this is just a limited exception, too? And if it is, consider this:

News Item from California, 2012: “In a closely contested vote, the California voters shocked the pollsters and pundits by approving a ballot measure that amended the state’s constitution to remove the right of free speech for all men. Ernestine Bledsoe, spokeswoman for ‘Yes on Prop 1’, celebrated the decision: ‘For too long, the institution of Free Speech has been under assault from a minority promoting their own agenda of coarse speech. We needed to protect the institution of speech for future generations.’“’The No on 1’ forces were furious. Several thousand of them – mostly but not all men – marched in front of the headquarters of organizations that supported the measure. (The men were promptly arrested for exercising the right to free speech they no longer enjoyed.) Bledsoe was outraged by the protest: ‘We are at a dangerous time, when law-abiding citizens feel threatened and intimated for exercising their most precious right – to express themselves at the ballot box. What is happening to our democracy and for the basic notion of respect for opposing points of view?'”

Reader: “That’s crazy! You can’t take away a basic right that way. No court would ever put up with that.”

WordInEdgewise: “I guess it depends on whose ox is being gored.”

Exact Change is Appreciated

March 1st, 2009 No comments

This coming Thursday the California Supreme Court will be hearing oral arguments in the case challenging the validity of Prop 8, which purported to rescind the marriage equality that the court had granted in May of 2008. So I will offer a Blog in Three Acts, running Wednesday, Thursday and Friday.

I have at least one serious topic to post before that, but for today I thought something lighter (it is the weekend) might be in order. How about the imminent, and likely utter, collapse of the American and global economies. (Think I’m exaggerating? I would have thought the same before I listened to this downer of a show. “Bad Bank,” Feb. 27-March2).

Yes, there is a lighter side. As you may have read, many states are trying to come up with novel revenue sources, suggesting taxing “things” from marijuana sales (yes, even though they’re illegal) to prostitution (legal in certain parts of Nevada) to pornography. (This last met with unexpected resistance, when the lawmaker who dared suggest it was besieged with phone calls by “people call[ing] up saying their marriages would fall apart.” And we’re worried about same-sex unions?) Apparently, taxpayers won’t put up with increases in the sales or state income taxes, but taxing what were once vices [but] are now habits can be slipped past the populace.

Clearly, government is taking its cue from private industry, and here airlines are the best model. On Thursday, our family flew from Philadelphia to Orlando. As this was my first flight since a year ago at this time (we’re now bound to visit both sets of grandparents annually), I wasn’t fully aware of how comically irrelevant the actual air fare (cheap!) has become.  Here are some of the a la carte charges:

  • You’ll be charged for each checked bag. Thinking about not checking a bag? Gone are the days when people successfully carried on sarcophagi large enough to accommodate floor lamps, toolsheds, and the occasional deceased relative. Now the bin into which the putative “carry on” must fit holds approximately seven (7) M & Ms.
  • Soft drinks on USAirways are $2. Cocktails, which sold briskly, cost $78.50.
  • Want a blanket? Leg room? You’ll pay. People with leg room need larger blankets, of course, and these cost double.
  • Oxygen masks are a reasonable $17. When there was a sudden drop in air pressure, I was delighted to learn that kids under age six (we have four-year-old twins) get a two-for-one-deal. The guy next to me, apparently willing to play the odds, neglected to bring exact change. His heirs have learned a valuable lesson.

I’d write more, but I’ve run out of quarters to deposit in the side of my computer.        

Cages?

January 9th, 2009 1 comment

This cartoon may say more than the writer intended. The obvious point Toles is making is that the California voters transformed real cages confining chickens into metaphorical cages separating gays (men, in this case) from each other by denying them the right to marry (Prop 8). The perversity of the move is then accented by the rhetorical question at the bottom of the piece: “Which idea will spread to other states?” Unfortunately, we already know that the “idea” of delaying marriage equality (and it’s only a delay) has indeed spread to many, many other states.

But there’s something else about the cartoon that strikes me: Some would argue that marriage – not the exclusion from it – is the cage. Twenty years ago, the perceptive LGBT activist Paula Ettelbrick (now Executive Director of Executive Director of the International Gay and Lesbian Human Rights Commission) wrote an influential article called: “Since When is Marriage a Path to Liberation?” The article, since reprinted in a number of books on the marriage equality debate, raises provocative questions about marriage as a goal for the movement: “In arguing for the right to legal marriage, lesbians and gay men would be forced to claim that we are just like heterosexual couples, have the same goals and purposes, and vow to structure our lives similarly. … We must keep our eyes on the goals of providing true alternatives to marriage and of radically reordering society’s view of reality.”

Paula Ettelbrick and I shared a cab to Philadelphia’s 30th Street train station a couple of years ago after we had both spoken at an Equality Forum panel. (Apropos of nothing but gossip, she was a delightful traveling companion.) I asked her about this article, and she said – in so many words – that she had modified her view in light of the compelling stories that so many couples were telling about their lives. I didn’t take her to be saying that the points she made about providing “true alternatives” to marriage were no longer valid; they clearly are, and have been taken up by others, such as Nancy Polikoff (discussed in my previous post).

But gay and lesbian assimilation into the mainstream is by now proceeding apace, and it makes no more sense for those on the left to deny this than it does for those on the right. If same-sex couples are in fact living lives that look (distressingly?) parallel to those of opposite-sex couples, then formal legal equality is a legal, social – and emotional – must. Yet one is entitled to hope that the LGBT community won’t be content at the assimilation that equality seems to require, but will continue to recognize that our struggle is part of a larger and more vital effort to achieve broad legal and social justice. But it’s hard to remember that when you’re paying the bills and tripping over toys.