Archive for the ‘Proposition 8’ Tag

California Supreme Court to hear Prop 8 case on March 5th

Flag of California

The Flag of California

The California Supreme Court will hear oral arguments to determine the validity of Proposition 8, the constitutional amendment approved by 52% of the state’s voters last November.  Prop 8, which this blog is not a fan of, overturned a previous decision of the state’s high court that required the state to recognize and allow same-sex marriage.

The argument brought by opponents of the measure is that it violates not the Federal Constitution but certain provisions of the State Constitution, which contains several different amendment mechanisms including initiatives, which can be placed on the ballot by petition, and revisions, which can only be put on the ballot by a super majority of the state legislature.

The plaintiffs argue that a measure eliminating fundamental rights from a historically persecuted minority amounts to a revision of the Constitution and exceeds the power of initiatives.

A revision can be placed on the ballot only by a two-thirds legislative vote or by delegates to a state constitutional convention. The court has upheld such challenges to initiatives only twice in its history, in 1948 and 1990.

Opponents of Prop. 8 also argue that it violates the constitutional separation of powers by stripping the judiciary of its ability to protect a minority group. Attorney General Jerry Brown has sided with opponents of the measure and argues that it is invalid for another reason: that it abolishes “inalienable rights,” guaranteed by the state Constitution, without a compelling justification.

The plaintiffs clearly have a tough case to argue and, as a matter of law, I’m not sure if they’re correct about the measure constituting a serious revision.  I didn’t think they had a case at first, but now I think they may.  Imagine if a simple majority of the electorate could revoke the right of women or of African Americans to vote.  Or if 50% +1 could take away the presumption of innocence or freedom of religion.  (All of these are protected by the U.S. Bill of Rights, but the point remains.)

Keep in mind that the entire point of a Bill of Rights is to keep the majority from doing what it wants.  If it can be overturned by a simple majority, then what’s the point?  It’s just a speed bump, not any sort of true impediment to the mob or protection for political minorities.

Even if Proposition 8 is permissible under that wonderful document that is the California Constitution, it shouldn’t be.  Amending the Constitution should take more than a few signatures on a petition and then a simple majority of the electorate.  A simple majority to ratify an amendment proposed by a super majority of the legislature is fine; that’s what almost all, if not all states allow.  But an amendment proposed by petition, if allowed at all, should have to secure 60% of the vote, I think.

The lead case is Strauss vs. Horton, S168047.  The Court will also be hearing arguments concerning whether the 18,000 same-sex marriages performed prior to the amendment was approved are still valid.  I imagine they would be, but the state just couldn’t recognize them—if Proposition 8 is upheld.  The lead attorney for those seeking to overturn the amendment and limit marriage rights is Kenneth Starr, the former investigator of President Clinton.

Newsweek poll: support for gay rights is up

Newsweek has just come out with a new poll showing that support for gay rights is up significantly over the past few years, the success of California’s Proposition 8 and other anti-same-sex marriage amendments this past November notwithstanding.

Americans continue to find civil unions for gays and lesbians more palatable than full-fledged marriage. Fifty-five percent of respondents favored legally sanctioned unions or partnerships, while only 39 percent supported marriage rights. Both figures are notably higher than in 2004, when 40 percent backed the former and 33 percent approved of the latter. When it comes to according legal rights in specific areas to gays, the public is even more supportive. Seventy-four percent back inheritance rights for gay domestic partners (compared to 60 percent in 2004), 73 percent approve of extending health insurance and other employee benefits to them (compared to 60 percent in 2004), 67 percent favor granting them Social Security benefits (compared to 55 percent in 2004) and 86 percent support hospital visitation rights (a question that wasn’t asked four years ago). In other areas, too, respondents appeared increasingly tolerant. Fifty-three percent favor gay adoption rights (8 points more than in 2004), and 66 percent believe gays should be able to serve openly in the military (6 points more than in 2004).

This blog supports equal rights for gays and lesbians

This blog supports equal rights for gays and lesbians

(See my prior post on gays in the military.)

The article indicates that most people now oppose a federal marriage amendment, 52-43.  Just four years ago people narrowly supported one, 47-45.  And 49% say they’d oppose a state constitutional amendment outlawing gay marriage, with just 45% in favor.  (Though this seems odd to me since such measures have passed with over 60% in favor just about everywhere they’ve been proposed, including Florida just a month ago.  Respondents may be telling pollsters what they think will make them look open minded and tolerant.)

The article, linked to above, also touches on religious views vis-a-vis same-sex marriage and the generational divide.  Data is also provided on the percentage of people who have a gay relative, coworker, or friend.

104 Generals and Admirals say let gays serve openly

Department of Defense HQ

Department of Defense HQ

A statement was released Monday by 104 retired generals and admirals calling for the U.S. to end the Don’t Ask/Don’t Tell policy which prevents gays and lesbians from serving in the American armed forces unless they deceptively hide their sexual orientation.  The full text of the statement is as follows:

We—the undersigned—respectfully call for the repeal of the “don’t ask, don’t tell” policy. Those of us endorsing this letter have dedicated our lives to defending the rights of our citizens to believe whatever they wish. Scholarly data shows there are approximately one million gay and lesbian veterans in the United States today as well as 65,000 gays and lesbians currently serving in our armed forces. They have served our nation honorably. We support the recent comments of former Chairman of the Joint Chiefs, General John Shalikashvili, who has concluded that repealing the “don’t ask, don’t tell” policy would not harm and would indeed help our armed forces. As is the case with Great Britain, Israel, and other nations that allow gays and lesbians to serve openly, our service members are professionals who are able to work together effectively despite differences in race, gender, religion, and sexuality. Such collaboration reflects the strength and the best traditions of our democracy.

By my count, the flag offices who’ve signed the statement have a total of 161 starts on their uniforms (it was also signed by Former Secretary of the Army Clifford Alexander).  The list is topped by Retired 4-star Admiral Charles Larson, a former Superintendent of the Naval Academy and prior supporter of the don’t ask policy. 

He thought it was a mistake for Bill Clinton, who was a close acquaintance, to try to lift the ban immediately, and wished he would have worked more closely with the military if he wanted to make the change. “You can’t change the military culture overnight,” he recalled thinking. …

Admiral Larson changed his view after he learned that “there were a lot of witch hunts and a lot of people were turned out on that basis.” He found that the policy was not being implemented as he had hoped, and the military was losing valuable talent. He was also influenced by having a number of people work for him who were gay, and by having a gay daughter with whom he spoke at length about gays in the military.

He now believes the ban should end. “I think the time has come to find a way to let talented, young, patriotic Americans who want to serve their country serve,” he said, “and let’s enforce high standards of personal and human behavior for everyone.”

Initially, opposition to gays in the military was justified on grounds that they wouldn’t make as good soldiers, sailors, marines, and airmen as straight people.  That argument can no longer be made by any serious person.  Now, opposition to gay servicemembers is based on the argument that straight members aren’t mature enough to serve with someone that they know is homosexual.  (Though the claim isn’t normally put in such bald terms.)

Larson, the Democratic nominee for Lt. Governor of Maryland in 2006, says that a generational shift in thinking towards homosexuality now allows heterosexuals to serve alongside homosexuals.  This is exactly what happened with allowing non-whites to serve in the military in an equal capacity with whites: first blacks wouldn’t make good soldiers, then they proved they could so it was argued that whites couldn’t work with them.  Then whites proved they could.  And now we have a racially-integrated military that works fine.  The same thing will happen with homosexuals; it is inevitable.  People looking for more information about gays in the military are hereby referred to the very excellent essays and data maintained and provided on the subject by Dr. Gregory Herek of the University of California, Davis.

These changing attitudes can be easily seen in the age demographics in California’s Proposition 8 battle: 66% of 18-24 year olds, 60% of 25-29 year olds, and 50% of 30-39 year olds supported retaining same-sex marriage rights.  Only 41% of those 65 and older supported those rights.  In ten years many of those people currently over 65 will have passed away and there will be ten years worth of new younger voters who are comfortable with gay rights—and many of those who currently oppose those rights will change their own attitudes.

This blog supports equal rights for gays and lesbians who wish to serve in the military

This blog supports equal rights for gays and lesbians who wish to serve in the military

Between 1994-2007 the military discharged about 12,340 people for violating the “don’t ask, don’t tell” policy; last year, 627 military personnel were discharged.  Some of these people have been Arab-language linguists with sklls that are, to say the least, mission-critical at this point in time.

During the primaries, all of the Republican candidates for president favored retaining the present policy; all of the Democrats, Barack Obama included, favored repealing it.  However,  he has indicated he won’t scrap the policy unilaterally, preferring to lead and work with the Department of Defense and military leaders in developing a consensus to do so.  I think this is probably the best approach in getting widespread acceptance for the reform.  Pundits are saying that it’s unlikely he’ll make changing the policy a top priority early in his term.

The don’t ask policy doesn’t work and harms our military.  Heterosexuals should be given credit for being mature enough, with very few exceptions, to work side-by-side with a gay or lesbian person.  This blog strongly favors repeal of the policy and allowing people who can cut it to serve in the military regardless of sexual orientation without having to deceptively hide said orientation.

News and thoughts on California’s Proposition 8

MSNBC reports that the contest to pass or defeat California’s Proposition 8 is the second most expensive political battle in the country this year, trailing only the bajillions of dollars being spent by McCain and Obama—but mostly Obama—in their battle for the White House.  Proposition 8, which I previously blogged about here, would amend the California Constitution to remove the right of same-sex couples to marry.  This blog opposes the measure and hopes that Californians will defeat it at the ballot box on Tuesday.

Flag of California

It may be the best state flag with writing on it... but it's still got writing on it! Grrr.

The latest polls indicate that 49% of respondents intend to vote no (and support protecting the rights of same-sex couples) and 44% intend to vote yes (and remove the marriage rights of same-sex couples); the remainder are undecided.  Apparently, most people who are undecided in the final days of such campaigns on controversial social issues tend to vote no.  So, the smarter money would be on the measure not passing, though it is sure to be close.  Incidentally, Intrade speculators are indeed putting their money on it not passing; current market consensus is that it has about a 25% chance of success.

I am disappointed and distraught that Proposition 8’s main supporters are, with no exceptions that I know of, all part of my own religious tradition, Christianity.  Formerly, Christians like William Wilburforce—who successfully lobbied against the slave trade—and Martin Luther King, Jr.—who championed civil rights—were all about expanding human freedom; it’s unfortunate that that’s not the case in the present instance.  It is furthermore unfortunate that Prop 8 supporters and others similarly minded people—when they address the issue at all—make such flimsy arguments about why the parts of the Mosaic Code that they want to impose on other people must still be followed but the parts that they don’t want to be held to don’t apply any more.  I think they also damage their standing with their claims about the alleged harms of permitting same-sex marriage, which, at best, are all out of proportion to the evidence and, more commonly, are in direct contradiction to it.

Andrew Sullivan has interesting blog posts here and here on the enourmous amount of money that Later Day Saints (Mormons) are donating to the pro-8 cause.  Though they’re only about 1.5-1.8% of the state’s population, apparently about 30-40% of all pro-8 money is coming from Mormons (not all of them in-state).  The second Sullivan piece indicates that the total might be as high as 77%, but that figure seems insufficiently sourced and is pretty unbelievable to me.  He writes that LDS efforts are “about consolidating the Mormon church into the wider Christianist movement. If the Mormons can prove their anti-gay mettle, they will be less subject to suspicion from evanglicals.”  He quotes another gentleman who says that “For whatever reason, [Mormons are] trying to get some respect from other religions. … They’ve always been looked down upon by the Christians, the Catholics, and evangelicals” but would gain credibility if the marriage succeeds.  An interesting analysis.

The LDS Church is by no means monolithic, however (few religions are).  Mormons for Marriage have an excellent website explaining why they respectfully oppose Proposition 8 and are actively working to promote marriage rights.  (It strikes me as Orwellian how so many groups that are against marriage rights for certain people get themselves considered the “pro marriage” side.)  Check out their site; it’s very well organized and contains lots of information.

I feel that it’s very likely that by 2030 same-sex marriage will be legally available to most, if not all, Americans.  This current opposition is another one of those things some Christians think is a really good idea (and others think is really bad) that the church is going to have to come to terms with  and eventually apologize for.  Sort of like slavery, the inquisition, and the crusades.  Though I will say that taking away a person’s right to marry is nowhere near as bad as taking away his or her life or freedom.  Society is making progress; we’ve decided that it’s not okay to kill or enslave people and now are discussing if it’s okay to let them marry.

Anyway, here are some No On Prop 8 ads that imitate Apple’s “I’m a PC/I’m a Mac” ads.  Even if you disagree with the points raised, you may find them amusing.  I especially like the second one which features the Constitution of California, who’s a lot more attractive than I thought she’d be, given that she’s one of the longest state constitutions in the country, albeit nowhere near as long as the monstrosity that Alabama uses.

California polls close at 8:00 pm local time, 11:00 pm eastern time.  It’ll be interesting to see what happens with this initiative.

Same-sex marriage now legal in Connecticut

The Flag of Connecticut, which isn't very good

The Flag of Connecticut, another "state seal on a field of blue." Yawn.

The Supreme Court of Connecticut released a 4-3 decision today that strikes down the state law that limited marriage to opposite-sex couples only, saying it violated the state constitution’s equal protection provisions.  As the decision in the case, Kerrigan v. Commissioner, is based on the state constitution, it is not reviewable by the United States Supreme Court.  The eight plaintiffs, headed up by Joanne Mock and Beth Kerrigan, first filed suit in 2004; the case had been working its way through the court system since then.

Connecticut passed a civil unions law in 2005 which extended all of the state benefits and responsibilities of marriage to same-sex couples.  However, this did not make such couples available for all the numerous federal benefits of marriage that they will now be eligible for.  The state’s governor, Republican Jodi Rell, said that

The Supreme Court has spoken. . . . I do not believe their voice reflects the majority of the people of Connecticut. However, I am also firmly convinced that attempts to reverse this decision, either legislatively or by amending the state Constitution, will not meet with success. I will therefore abide by the ruling.

Of course, courts should pay no attention to the popular will—that is for people who make and execute laws to do.  Courts simply rule on what the law is and requires.

The process to amend the Connecticut Constitution is rather involved, Nevertheless, some opponents have mentioned trying to get a question on the ballot next month, which in itself is a long shot.  Even if that happened, and the question on amending were answered in the affirmative, it would still require action by the legislature and subsequent approval by the voters, which couldn’t happen before 2010. Gay and lesbian couples would be free to marry in the interim.  In any event, such an effort does not appear likely at this point in time.

Connecticut is now the third state in which same-sex couples have the same marriage rights as opposite-sex couples, the other two being California and Massachusetts; in all three the right was granted not by law but by the respective state supreme court ruling that the state constitution prohibited discrimination based on gender in marriage laws.  Note that California voters may eliminate same-sex marriage rights this November if they pass Proposition 8, which I blogged about here.  Together, these three states contain about 15.21% of the Union’s population. 

Additionally, while New York (6.31% of U.S. population) does not perform same-sex marriages, it does recognize those done out of state; most of New York’s population lives fairly close to either New Jersey or Connecticut, so it should be fairly easy for interested couples to become married in one of those jurisdictions and then have their home state recognize it.  Vermont, New Hampshire and New Jersey have civil unions; Maine, Washington, Oregon, the District of Columbia, and Hawaii have domestic partnership laws that allow same-sex couples to receive some of the same benefits granted to those in civil unions.

California’s Proposition 8

Flag of California

Flag of California

Actor and philanthropist Brad Pitt has donated $100,000 to fight Proposition 8, which California citizens will be voting on this November. The measure is the result of In re Marriage Cases, a case decided by the 4-3 California Supreme Court in May that held “that the California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying.” (Text of the decision, PDF) The decision struck down Proposition 22, passed in 2000 with 61.4% of voters in favor, which prohibited same-sex marriage by statute.

The summary of the measure, prepared by the Secretary of State and provided to the people in their voter information guides, reads as follows:

ELIMINATES RIGHT OF SAME-SEX COUPLES TO MARRY. INITIATIVE CONSTITUTIONAL AMENDMENT. Changes the California Constitution to eliminate the right of same-sex couples to marry in California. Provides that only marriage between a man and a woman is valid or recognized in California. Fiscal Impact: Over next few years, potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact on state and local governments.

Initially, polls showed a small majority of Californians supported the measure. Polls taken since May, however, have shown a majority opposed to it. One recent poll shows 54% opposed and 40% in favor of the measure; however only 47% personally favor allowing same-sex couples to marry, the same percentage as are personally opposed. The survey found that 80% of respondents believe the outcome of the vote is “important.”

Much of the measure’s support comes from socially conservative religious groups, like James Dobson’s Focus on the Family and the Church of Jesus Christ of Later Day Saints (the Mormons). However, all six Episcopal Bishops whose sees are in the state signed a letter opposing the ballot measure. The statement says in part:

As Episcopal Bishops of California, we are moved to urge voters to vote “No” on Proposition Eight. Jesus calls us to love rather than hate, to give rather than to receive, to live into hope rather than fear. . . . We believe that continued access to civil marriage for all, regardless of sexual orientation, is consistent with the best principles of our constitutional rights. We believe that this continued access promotes Jesus’ ethic of love, giving, and hope. (full text of letter in pdf)

The poll numbers have been steady for several months, so I would predict the measure will fail approximately 55-45%. If I were a Californian, I would certainly vote against Proposition 8. Bronze age purity codes should not to be enshrined in current constitutional law–if they should be, everyone is in trouble. This will be an interesting one to watch on election night.