Archive for November, 2008

Proposition 8: The Strategy Going Forward



     It is clear that as the dust settles on Proposition 8 in California, a new strategy is needed on several fronts to fight for the civil rights of all our citizens, including Lesbian, Gay, Bi-sexual, and Transgender citizens. In addition, the strategy needs to be coordinated and it needs to be comprehensive.


     As we all know now, legal efforts to invalidate Proposition 8 have moved forward and the courts will soon have to act. Everyone who voted against Proposition 8 on November 4th can help and should be part of the solution. This issue of gay marriage rights is not an issue that divided gays and straights. On the contrary, when nearly half the electorate in California voted against Proposition 8, it signaled convincingly for the first time the existence of the largest coalition of gays and straights ever assembled in a common cause. It was democracy and diversity at its best. 


     Those of us that are part of this coalition are at the “idea stages” of forming the new strategy that is needed. So what are some of the ideas that are needed? I am just one person with a few ideas but here are some of them:


  • The political pressure needs to continue unabated from now until the courts decide this issue in our favor once and for all. Just as before, there needs to be concerted efforts to organize large “million-man” and woman  marches in large cities throughout the United States including Washington, D.C. Members of congress supportive of the civil rights of LGBTs should be invited to speak at rallies and other events. The press coverage would likely be thorough and comprehensive.
  • One supportive group should step up and take the helm and steer the ship for all other groups. Determining which group should take the leadership role will be difficult but not impossible.
  • Educational literature supporting LGBT rights needs to be promulgated into all communities emphasizing a common need for civil rights to be protected. Given the voting pattern in California on Proposition 8, there needs to be an extensive education to enlighten communities on the importance of protecting everyone’s civil rights. Communities with the highest percentage of “Yes” votes on Proposition 8 should be the primary target zones.
  • There should be a plan to identify all businesses, individuals, and communities that monetarily supported California’s Proposition 8. Proposition 8 was symptomatic of hate-crimes directed toward a particular segment of our society.  Americans have a long tradition of protecting civil rights and therefore hate crimes of any sort need to be fought against.  People who monetarily support these subtle types of hate crime need to be identified as violating the civil rights of others. 
  • Boycotting has often been a successful method of altering public opinion. I suggest limiting spending in all California Counties and local communities who supported a “yes” vote on Proposition 8.   Tourist dollars can be withheld by restricting travel to these counties and communities. To the extent possible, goods and service purchases should be restricted and directed to those counties who better understand the civil rights of citizens.  The north central counties, San Joaquin valley counties, the southern California counties and those along the eastern side of the state (with the exception of Alpine and Sierra counties) all voted in favor of the proposition.  
  • Church members who voted against Proposition 8 should work actively to alter their church’s attitudes.  If necessary, they should decline monetary support for their church in anyway, shape, or form. People can worship without supporting hate and bigotry.
  • Those in leadership positions in the LGBT and straight community need to come forward and promote the positive reasons for equality and harmony in social relations. More educational efforts need to be enacted to reach out to the more progressive churches and progressive communities in the state. Public service messages need to be promoted that rewards these churches and communities for their positive civil rights stances, and a willing openness to support LGBT citizens.

 The LGBT community needs to get better organized.  A strong coalition of gay and lesbian organizations should be formed.   An alliance will make organized efforts easier and more apt to be successful.  People will be more likely to give monetary contributions to a large organized, recognized LGBT alliance. This is important because a large war chest of contributions will be needed to meet such future goals as: political campaigning, education efforts, television and radio commercials and, if necessary, hiring of professional political Lobbyists.  Lobbyists can work with getting legislators of all persuasions to actively support LGBT rights and issues and to pass more effective hate crime legislation.


     In summary, the time has come for a sophisticated carefully crafted set of strategic plans for fighting discrimination against Lesbian, Gay, Bi-sexual, and Transgender citizens. The way ahead will have many challenges but they must be overcome. I don’t think that naïve individuals voting “Yes” on Proposition 8 realized the storm of protest and anger that would be generated among their fellow citizens.


    Americans feel strongly about their civil rights and this proposition felt like a step backward in our quest.  Civil rights is everyone’s responsibility. Discrimination is legally and morally wrong.  Supporters of Proposition 8 should not take their own civil rights for granted. Everyone’s civil rights are fragile and runs the risk of vanishing when any one group is denied them. No one’s civil rights should be left unprotected in this sometimes chaotic and unpredictable society.   If even one of us is denied our civil rights, so too the rest may not be far behind.  



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The Legal Fight has Just Begun



   On Wednesday, the California electorate approved Proposition 8, a proposal to ban same-sex marriages in deference to a traditional marriage between a man and a woman only. But the margin of approval was very close, 52% “Yes” and 48% “No.”  With nearly half of the public in favor of supporting gay marriage it is not surprising that the legal battle to overturn the ban will continue. Since November 4th, several lawsuits have been filed and several gay advocate groups have asked the California Supreme Court to invalidate the results of the ballot initiative that was passed.


   As a father of a gay daughter who was married to her partner of 15 years just last Saturday, I am very interested in overturning the ban on same-sex marriages in California as well as elsewhere throughout the nation. I wonder what will be the legal basis for doing so. Based on my limited time in law school in 1969-70, I understand that the legal status of an amendment to a state constitution is no more viable because it’s in a state constitution, than if it was a result obtained from case law. Just because an electorate creates law by modifying a state constitution doesn’t, in and of itself, mean it’s unchallengeable.


   There are two types of law: Case law and Statutory law. Both types can be challenged if there is a “cause of action.” Federal hate crime statutes view gays and lesbians, various racial, religious and ethnic groups as protected just like any other group that might be singled out for violence or discrimination. When it comes to discrimination there are other laws that come into play besides hate-crime laws. Namely, the United States Constitution and its “unequal protection clauses” under the 14th Amendment.


   It is my opinion that in all likelihood the results of California’s Proposition 8 will be overturned. This is because of two factors: (1) The Principle of Judicial Review and (2) Proposition 8 is discriminatory. The fact that an electorate approved a discriminatory initiative doesn’t carry much weight under the law, particularly federal law. There is a long history in this country of Judicial Review going back to 1803 when, in [Marbury vs Madison] the U.S. Supreme Court overturned a previous act of Congress at the end of the John Adams administration, when Thomas Jefferson came into office. That set a precedent that established federal judicial review of all law, no matter what its source.


   In the last couple of days, the legal process has indeed moved forward in order to overturn the results of Proposition 8. Clearly, passage of Proposition 8 is violation of an individual’s civil rights and the unequal protection clauses under the 14th Amendment. The institution of marriage isn’t at risk. People will be getting married a hundred years from now. What this legal issue is really about is who can marry. This is a clear case of discrimination. Restricting who can marry based on social characteristics such as sexual orientation is, in my humble opinion, a violation of federal law. 


   Connecticut recently overturned a ban on same-sex marriage. In Connecticut, the 4-3 decision cannot be appealed to the United States Supreme Court because it was based solely on an interpretation of state constitutional law. The State Supreme Court is the ultimate authority on all state law. Connecticut’s Governor Jodi Rell stated that, “attempts to reverse the decision—either legislatively or by amending the state constitution—won’t meet with success.”


   According to Carolyn Kaas, a family law professor, “The state legislature can’t pass a bill reversing the decision, because the court has already said that the state constitution requires marriage to exist for same-sex couples.” In California, if the same legal reasoning applies, then any attempt to affirm the ban on same-sex marriages will be denied again by the California Supreme Court, since it has already ruled on that matter.   


   Having preferential value judgments unfavorable to gays and lesbians should not trump the United States Constitution’s 14th Amendment. However, it is always possible that another lawsuit could be filed in federal court and eventually brought to the United States Supreme Court. By the time such a case gets put on the court docket, the landscape of the United States Supreme Court may be quite different.     President-elect Barack Obama will get a chance very soon to appoint two if not three new judges to the U.S. Supreme Court. Given a Democratically controlled senate, liberal philosophy judges are likely to be appointed. (Isn’t it absolutely amusing? Everyone complained months ago when the congress was in gridlock—now some are angry that one party will be in control of congress and end gridlock. As citizens we can’t have it both ways.)


    Where proposition 8 passage is concerned, without a doubt, it is going to be defeated. Protecting civil rights is an important policy of our new president. For those who would continue to engage in mindless acts of discrimination—be warned, the country is about to change. Get used to it!

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