Results tagged “constitution”

I’d been planning to write this post since the passage of California’s Proposition 8 last Tuesday eliminating the right of same-sex couples to marry, but because I procrastinated, as usual, others, including Jeff, have beat me to the punch. Nevertheless, here’s my own take on the matter.

Two issues that have often distressed me, and that especially concern me in the aftermath of Prop. 8 are the claims like those of its supporters that 1) we live in a “democracy,” which they define as “majority rule,” and that 2) judges are “activists” who overstep their bounds when they overrule a majority vote directed at eliminating or restricting rights for a minority group.

First, it’s shameful that so many Americans, perhaps even a majority, have such a fundamental misunderstanding of their country’s government. Yes, America is a democracy, but the word “democracy” does not necessarily mean that “majority rules.” There are many types of democracies. The US is, of course, a constitutional republic, a particular form of democracy that constrains the ability of the majority, or of any one person, entity or governmental branch, to have unchecked power, especially over minorities, and especially concerning individual rights:

A constitutional republic is a state where the head of state and other officials are elected as representatives of the people, and must govern according to existing constitutional law that limits the government’s power over citizens. In a constitutional republic, executive, legislative, and judicial powers are separated into distinct branches and the will of the majority of the population is tempered by protections for individual rights so that no individual or group has absolute power. The fact that a constitution exists that limits the government’s power makes the state constitutional. That the head(s) of state and other officials are chosen by election, rather than inheriting their positions, and that their decisions are subject to judicial review makes a state republican… (Wikipedia)

Moreover, America was founded as such a constitutional republic in large part specifically to safeguard the rights of minorities against the “tyranny of the majority.” Claiming that a majority vote is sufficient to remove a right from a minority group, then, is about as un-American an idea as possible and by definition un-republican (lower case).

And this means that the judges who make unpopular decisions upholding minority rights, whether it be the right of interracial marriage or in California of same-sex marriage, are not creating law, they are not usurping the right of the majority, for in fact the majority is constitutionally not intended to have the ability to restrict the civil rights of a minority. Rather, these courts are doing what they were created and are constitutionally obligated to do. And in doing so, they remain significantly more true to the founders’ ideals than do those who would establish a mobocracy in America. For that is what the philosophy of “majority rules” is, in its purest form, nothing more than an angry, ugly mob.

You’d think that with their veneration (almost to the point of fetishization) of the Pledge of Allegiance, which includes “and to the Republic, for which it stands,” the right especially would have a little better understanding of U.S. government, and would at least learn what a republic really is, if they’re pledging allegiance to it. Apparently, not so. On the other hand, it’s a wonder that the right loves the Pledge of Allegiance so much in the first place, given that it clearly states, “with Liberty and Justice for all.” Not “all except blacks,” or “all except women,” or “all except gays and Lesbians,” even though there were times in our history when “all” or “we the people” was believed to mean only “all white men”; it was just as wrong then as it is now, and the courts were just as correct in their duty to rule against excluding gay folk from “all” in California earlier this year as they were in ruling against noninclusive forms of “all” for people of color and for women in the past. And the 52% majority was wrong to believe that they should have any say in it, or that having voted to deny civil rights that the case should be closed.

These are largely the only emotions I’ve been able to feel since Tuesday night, with the exception of two fleeting moment of elation 1) when the election first was called for Obama, and 2) when Obama gave his speech. Even in the midst of those moments, though, I kept being reminded that the promises inherent in an Obama presidency were not truly mine, as a gay person in America, to fully share. And while at the time I wrote that I was happy again to be an American, the truth is that by the next morning, recognizing the passage of California’s Proposition 8, I no longer felt as though I truly were even considered an American by even half my adopted home state of California, much less by anywhere near half the country as a whole.

Fifty-two percent of California voters Tuesday night did something remarkable and frightening. They amended the state’s constitution to strip a civil right from one group of people only. It’s that easy to do, which is shocking enough, yet the same process that makes it possible to take away rights by a simple majority vote requires a much more difficult process to restore those rights. Perverse. That same night, 70% of California voters voted to give additional rights to farm animals raised for food.

How am I supposed to feel now that a sizable percentage of the people I see on a daily basis in my neighborhood, at work, in stores and restaurants, not only believe that my life and my relationship are worth less than theirs, but vote to back up their personal religious beliefs with the force of the state?

And what recourse do I have when a mere 50% plus 1 of those voting have the power to do so? That frightens me. The tyranny of the majority unchecked.

And most of these people voted to take away my rights, Jeff’s rights and the rights of tens if not hundreds of thousands of other Californians and their children for one reason only. Religion. Religious leaders, subsidized by my own taxes, regularly stand up in their tax-exempt churches and tell these people to vote against me, that my life is evil and sinful, that (according to Catholic doctrine) I am “intrinsically disordered”, and that I am less than human. Millions of dollars poured in from out-of-state Catholic organizations like the Knights of Columbus, and tens of millions of dollars — between 40% and 70% of the total funds for this initiative — were given by Mormons, many again from outside California, commanded from their pulpits to do so.

Why should churches be allowed to benefit from tax advantages when they can act so clearly and directly to take away my rights, even though I have to pay taxes but receive fewer rights than other Americans? Through my life I’ve been moving from a position of having been indoctrinated in religion myself, to a period of spiritual exploration, to personal atheism combined with religious tolerance. After this egregious use of religion and its taxpayer-subsidized bully pulpits to attack me and my family and to deny me my rights, however, I have moved solidly to a position that religion must be actively fought in its every attempt to intrude publicly into law, science and education, and that religious institutions should not be subsidized by the state but should pay taxes.

But hey, if preventing me from marrying the man I love and intend to spend the rest of my life with now means that your marriage is safe again, and that you’ll stop those divorce proceedings so you can marry for the third time, stop beating your children, stop sleeping with your husband’s best friend, and stop slapping your wife around, well, then maybe it’s worth it. I’m really sorry that expressing my desire to actually enter an institution that you’ve already pretty much destroyed and more than half of you can’t even sustain has placed such a burden on you that you have become unable to treat it with any sanctity or dignity. I never knew I had that kind of power.

Know what, though? And this is what ultimately helps me channel my anger into something more productive, and diminishes my despair. Yes, you and your superstitions and your old-fashioned bigotry may have won this skirmish. Oh, but so narrowly, and that gap continues to narrow, and quickly. In the years to come, and maybe even soon, you will lose your war on fairness and equality. Younger Americans overwhelmingly don’t buy what you’re selling about us — they know us, are friends with us, love us, and see us and our relationships as no better or worse — and they will vote for equality instead of for hate and fear.

To the 52% of my fellow Californians who voted to make me a second-class citizen on Tuesday, though, I really do have to thank you for a couple of things.

First, my love for Jeff has not been diminished by your hate, fear and/or ignorance; our relationship is no less valid than yours, nor our commitment to one another any less real or meaningful, despite your wishing it so. If anything, this attack has made us even stronger. Thank you.

Second, over the last couple of months I’ve been struggling with figuring out what I wanted to do next in my professional life, feeling that I needed to make a major change. While I was already leaning this way, you’ve absolutely helped me hone in on what that change should entail. To wit, I intend now to focus my job search with institutions like the ACLU, Americans United for the Separation of Church and State, People for the American Way, and similar organizations that work unceasingly and tirelessly to defeat your attempts to legislate hate and inequality. Thank you.

There is an unfair ballot proposition in California that, if passed, will take away my fundamental rights. This is really important to me. Will you help me defeat Proposition 8?

Jeff and I have been together for five years. We love and support each other in the same way as families all over the country; we share the same joys and the same sorrows, we have the same dreams and the same fears. We intend to spend our lives together, and we hope to be married next year. The California Supreme Court ruled earlier this year that it is unconstitutional in California to deny us the right to marry, just as it was the first court to rule, in 1948, that laws prohibiting interracial marriages also were unconstitutional. It is the constitutional duty of the court, in fact, to safeguard the rights of minorities, and that is what the California Supreme Court did.

California’s Proposition 8, however, now would take away our constitutional right to marry. It would take this right away only for same-sex couples and it would write discrimination directly into the state constitution. Constitutions are intended to delineate and give rights, not to take them away. Whatever your personal views or your church’s views are on gays and lesbians (and you should know that many, many churches, religious organizations, and faith- and community-based organizations actually have come out in opposition to this hateful proposition), I trust you agree that eliminating fundamental rights — from anyone — is just wrong.

And this isn’t just a hypothetical. If this proposition passes, Jeff and I will be prohibited from marrying next year, and the marriages of many of our friends may be invalidated. They and their children will be directly affected. Jeff and I will be directly affected. Imagine if other voters were able to decide to take away your right to marry, or to say that your own marriage had never really existed. That would be unfair. It would be wrong.

If you live in California, I hope you are already planning to vote NO. If you don’t live in California, you can help by making a donation to the No on 8 campaign.

Virtually every major paper in California is against Prop 8. The L.A. Times says it is “a drastic step to strip people of rights.” Even papers in the most conservative parts of the state have editorialized against Prop. 8. The San Diego Union Tribune, for example, wrote that “Prop 8…[singles] out a particular group for discrimination, a move that offends many Californians’ sense of fairness.” The Orange County Register said, “Revoking same-sex couples’ right to marry doesn’t belong in the state constitution. We recommend a “no” vote on Prop 8.” And the Sacramento Bee wrote, “Californians should reject the call to amend the state constitution to exclude some people from marriage. That would be a black mark on the constitution, just as past exclusionary acts remain a stain on California’s history.” They know that the truly conservative position is to encourage marriage for all, not to discriminate against some.

The other side has raised over $10 million more than us, and as much as 40% 77% [ed., October 23: new estimates suggest that the percentage of donations attributed to members of the LDS Church is much higher than originally reported] of their donations have come from the Mormon Church. No one church should be able to decide what civil rights we enjoy as private citizens of this country. The Prop. 8 supporters are using their vast war chest to spread lies and misinformation. Your donation will help reach undecided voters who need to hear that Prop. 8 is wrong and unfair.

If all of this doesn’t convince you, I hope you’ll email me (thom at thomwatson.com) so we can talk about this. You can also find out more at the No on Prop 8 site.

Thank you for doing all you can to defeat Prop. 8.

This morning on the way to work I stopped off at San Francisco City Hall, filled a parking meter with a huge handful of spare change—for a grand total of only 29 minutes—and went to the Office of the County Clerk, where 19 minutes and a check for $112 later, I was sworn in as a deputy marriage commissioner (albeit valid only for the solemnization of one specific marriage on the date of October 20).

Part of the process was kind of amusing; I was given a photocopy of my friends’ marriage license, and was asked to sign and print my name and print my mailing address. The documentation provided makes it VERY CLEAR that I have to stay within the boxes and may not cross-out, white-out or write-over any information, so this was my test run to prove that I could stay within the lines. This is serious, for as the County web site points out, “The office of the County Clerk has a right to refuse deputization of a person, should the office feel that the person is unable to complete the paperwork correctly.”

I then had to swear or affirm (my choice)—right hand raised and all—that I would uphold the Constitution of the United States. Figuring that the current president and congress have set a pretty low bar for that task, I readily affirmed.

An important point I noticed at the time but inadvertently left out of my earlier posting on the New Jersey same-sex marriage ruling: the decision, in its essence, was unanimous. All seven justices agreed that the committed relationships of the gay and lesbian citizens of New Jersey must be accorded the same legal rights and privileges as those of committed heterosexual couples who enter into marriage. Three of the seven concurring—including the retired chief justice—actually went further, stating that they believed that same-sex couples should, in fact, be able to be married, not only to get the rights and privileges but to be able to use the word “marriage” itself, recognizing the power of words. The state can still elect to just amend the marriage laws rather than enacting a separate-but-equal system of civil unions, but that one vote gives them the option of using the same slimy out that Vermont ultimately chose. Most important, of course, is that the gay and lesbian relationships of New Jersey will, at least, be treated fairly by the law; and people will call their own commitments whatever they will, even the majority opinion recognized their right to do so.

The major press is missing or glossing over this point, often, including even The New York Times which, as of the time of this post, still refers ambiguously to a 4-3 ruling granting these rights to same-sex couples. That makes it sound as though three justices would have ruled against granting those rights, when in fact those three wanted not only to grant those rights, but to go further. It is important—very important—that none of the seven justices would find that same-sex couples should not get the same rights as heterosexual couples.

Another reason this opinion has been so closely watched, and is so important outside New Jersey as well as within, is that New Jersey—unlike Massachusetts—has no laws prohibiting marriage (nor may they enact such laws to apply only to the same-sex variant) where such marriage wouldn’t be recognized in the applicant’s own state. The possibility, then—and the fear of the right—is that same-sex couples will come from all over the U.S. to be married in New Jersey, and then sue for recognition within their own states, challenging the constitutionality of the offensively misnamed federal Defense of Marriage Act (DOMA).

New Jersey’s highest court has ruled today that within 180 days the state legislature must provide same-sex couples with the rights and privileges accorded to heterosexual marriage, stopping short of requiring that it be called marriage, stating explicitly that the legislature could choose to enact civil unions instead. text of the opinion (note: PDF file)

I’m torn about this decision. I think it was a positive step (though I hate the “separate but equal” status embodied by the permissibility of civil unions in lieu of marriage), but I think the timing of it could have disastrous consequences that go well beyond the issue of gay marriage.

So now we can only wait and see if this announcement, so close to the elections, energizes social conservatives and evangelicals sufficiently to annul the Democrats’ opportunity to take control of the House and Senate. I’m betting this will probably tip the vote in Virginia over amending the state constitution to prohibit same-sex marriage solidly in favor of doing so, and could even take that Senate seat back out of play.

I hope I’m wrong and that everything else over which America is angry and fed-up with the Republicans won’t be outweighed by the native antipathy toward gay folk, but I’m so very nervous now about the elections.

• Feeling Unwelcome, Some Gays Vacate Virginia [wapo]
  count us among the exodus; the political/social climate in Virginia towards gays certainly contributed to my decision to relocate to California
  (tags: virginia relocation homophobia politics law gay marriage constitution amendment civil_liberties wapo)

Washington State's Supreme Court has held, in a 5-4 decision, that banning same-sex couples from marrying is constitutional.

The plurality opinion, concurrences and dissents are found on the Washington Courts site. Despite the depressing final outcome that has left me feeling sick to my stomach, the dissents are a joy to read.

• Setback for marriage justice [latimes]
  “New York and Georgia courts will be on the wrong side of history of gay marriage.”
  (tags: editorial latimes gay marriage bigotry legislation legal constitution)
• Gay Marriage Laws Interactive Map [npr]
  (via Tinmanic.com) cool interactive map showing the current status of ant-gay marriage legislation and constitution amendments on a state-by-state basis
  (tags: gay marriage maps US states law legislation constitution npr flash interactive)