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Hawaii Governor Vetoes Civil Unions Bill

by Robert Cruickshank

As many of you know by now, Hawaii’s Republican governor Linda Lingle announced last night that she will veto the civil unions bill just passed by the Hawaii legislature:

“After months of listening to Hawaii’s citizens express to me in writing and in person their deeply held beliefs and heartfelt reasons for supporting or opposing the Civil Unions Bill, I have made the decision to veto HB 444.

I have been open and consistent in my opposition to same gender marriage and find that HB 444 is essentially marriage by another name.

Lingle goes on to claim she didn’t veto this because of that personal opposition, but because she wants to punt this to the voters:

I am vetoing this bill because I have become convinced that this issue is of such significant societal importance that it deserves to be decided directly by all the people of Hawaii. …

This is a decision that should not be made by one person sitting in her office or by members of the Majority Party behind closed doors in a legislative caucus, but by all the people of Hawaii behind the curtain of the voting booth.

As we know, those votes haven’t always gone so well for our side. But there’s a more important reason why Lingle’s reasoning is flawed:

Hawaii voters already gave the Legislature the power to decide this issue.

Here’s the background. In 1993, the Hawaii Supreme Court ruled that the state was discrimination against LGBT couples by denying them same-sex marriage licenses. In 1996 a follow-up case confirmed the initial ruling.

When it looked like Hawaii would start granting same-sex marriage licenses, the US Congress wrote and passed the notorious Defense of Marriage Act in 1996, which President Bill Clinton signed, a likely violation of the US Constitution’s “full faith and credit” clause. And in Hawaii, opponents of marriage equality, led by the Mormon and Catholic churches, mobilized to pass Amendment 2 in 1998.

Amendment 2 did NOT outright ban same-sex marriage. Instead it gave power to the Hawaii legislature to ban it. In short, the voters of Hawaii already went behind that curtain and said “the legislature can decide.”

Which is what the legislature did back in April 2010 by passing the bill to grant civil unions, the bill Lingle just vetoed. Lingle’s logic doesn’t make sense, and doesn’t accurately describe the political situation.

Further, because the Hawaii House of Representatives isn’t likely to hold a veto override session – which Hawaii State Senators have said they would do – the civil unions bill appears dead until next year, when Hawaii will have a new governor (Lingle is termed out this year). The Democratic nominee, Neil Abercrombie, released a statement criticizing the veto:

Governor Lingle has made her choice and the Legislature has said it will not go back into a special session for any veto overrides. HB 444 was not a same-sex marriage bill. The State Legislature has already defined marriage as between a man and a woman. Civil unions respect our diversity, protect people’s privacy and reinforce our core values of equality and aloha.

Now, it will be up to the next Governor and Legislature to ensure that all people of Hawaii receive equal treatment. Protecting people’s civil rights cannot be compromised. I am committed to that most essential of constitutional imperatives.

Others have vowed to go to court. Lambda Legal and the ACLU put out a press release outlining their plans to file a lawsuit:

Lambda Legal and the American Civil Liberties Union of Hawai’i (ACLU) reacted today with deep disappointment following Hawai’i Governor Linda Lingle’s veto of HB 444, which would have allowed gay and straight Hawai’i couples to take legal responsibility for each other by entering civil unions. Having received strong majority votes by both houses of the Hawai’i Legislature, the bill was given final approval on April 29, the last day of the session. Lingle had until July 6 to take action on the bill.

“This was a sad surrender to political expediency that does not support business or family interests, but damages them,” said Jennifer C. Pizer, National Marriage Project Director for Lambda Legal. “In caving in to a well-orchestrated disinformation campaign mounted by the bill’s opponents, Governor Lingle has abandoned thousands of Hawai’i families who have needed this bill’s protections for many years. We’re also disappointed that the Legislature opted to not override this veto immediately — we would have preferred to see couples win fair treatment through the political branch rather than having to pursue legal action. However, we’re still ready to do what’s necessary so our clients can protect their loved ones.”

Lambda Legal and the ACLU had readied a lawsuit after the House tabled HB 444 in January. The Hawai’i Senate had previously approved the bill by a veto-proof 18 to 7 majority and sent it back to the House for a conforming vote.

“We’re obviously disappointed that Governor Lingle has, once again, used her power to deny the people of Hawai’i their civil rights” said Laurie Temple, Staff Attorney for the ACLU. “Luckily for the people of Hawai’i, however, our constitution prevents discrimination based on sexual orientation. If the Governor won’t honor her oath to uphold the constitution, the courts will.”

Equality Hawaii weighed in as well:

“Today is a sad day for the thousands of Hawaii families who remain second class citizens,” said Alan Spector, legislative affairs co-chair for Equality Hawaii. “We fail to see how the Governor’s actions are in the best interest of Hawaii’s future and are nothing more than political maneuvering at the expense of people’s lives. We’re disappointed and outraged that same-sex families will not be treated equally under Hawaii law, but vow to come back and fight this fight another day.”

“Today was the first time a civil unions bill passed both Houses in Hawaii by solid margins and was on the Governor’s desk for signing,” said Jo-Ann Adams, Chair of the GLBT Caucus of the Democratic Party of Hawaii. “With such broad support from the legislators, who are the elected officials closest to the public, and the consistent results of the professional polls showing broad support for civil unions as a civil rights issue, we are deeply disappointed that the Governor ignored the will of the people and vetoed the bill. We are determined, no matter how many sessions and election cycles it takes, to achieve full recognition for our families.”

“Americans nationwide share in the disappointment and outrage of thousands of Hawaii’s families who will not receive equal treatment under law,” said Joe Solmonese, president of the Human Rights Campaign. “Thankfully, there are local advocates as well as leaders in the Hawaii legislature who will continue to further the cause of equality. For decades, we have been a loyal partner in this fight for fairness in the Aloha State and we pledge to stand with them for years to come.”

“Today, on July 6, 2010, Gov. Linda Lingle denied social justice when she vetoed HB444 for Civil Unions,” said Rev. Carolyn M. Golojuch, President of PFLAG-Oahu. “Her denial is a violation of the integrity of her office and a violation of her oath of office. Governor Lingle’s denial of equal rights, benefits and protections for one segment of our citizens is a denial for all of our citizens of Hawaii.”

“The members of Pride Alliance Hawaii are greatly disappointed in Governor Lingle’s decision to veto the Civil Unions bill and allow the state to continue its discriminatory practices against same-sex couples,” said Tara O’Neill, President of Pride Alliance Hawaii. “Two separate and independent economic studies, a poll conducted by a nationally recognized polling organization, and the thousands of residents who vocalized their support of the bill to the Governor and the Legislature over the past two years makes clear that the passage of HB444 is good economic sense, is socially just, and is supported by the people of Hawaii. The LGBT community’s fight for equality in Hawaii will continue.”

It’s clear that this fight will continue beyond yesterday’s veto – as well it should. Whether it’s through a lawsuit or through electing a pro-civil unions governor or in the courts, this battle isn’t over. Karen Ocamb has an excellent post about the scope of that battle, including an in-depth look at the way the Religious Right, including the Mormon and Catholic Churches, are likely to get involved over the next few months, and into 2011.

106 Comments July 7, 2010

This Is Why They Build Courthouses

by Robert Cruickshank

Over the holiday weekend, two op-eds appeared in the New York Times and the Washington Post criticizing the Perry v. Schwarzenegger case. The op-eds, by Jonathan Rauch and Jonathan Capehart, have been getting a lot of attention – and even approving words from Maggie Gallagher.

But are the arguments in these op-eds valid? As I’ll explain, they’re far from it. Both present a deeply flawed assessment of the case itself, the politics of the case, and of the purpose of the judiciary itself.

First up is Jonathan Rauch, whose op-ed in Saturday’s NYT titled “A ‘Kagan Doctrine’ on Gay Marriage” kicked off the recent debate:

ELENA KAGAN uttered neither the word “gay” nor “marriage” in her opening statement at the Senate confirmation hearings on her nomination to the Supreme Court, but she addressed the issue nonetheless. No, she didn’t say how she will vote when gay marriage comes before the court, as it may soon. What she did say was this:

“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people.”

Ms. Kagan may not have had gay marriage in mind when she made that statement, but it could not be more relevant. She seems to be saying that protecting minority rights is the Supreme Court’s job description, but also that a civil rights claim doesn’t automatically trump majority preferences. This is something absolutists on both sides of the gay marriage debate don’t like to hear, but it has the virtue of being right.

Rauch is guilty of the “both sides are the same” fallacy, calling those of us who support marriage equality “absolutists” alongside those who wish to deny equal rights. In Rauch’s mind, our arguments are essentially the same, and “serious” people like himself should stand apart from this debate entirely – or find some sort of half-solution that doesn’t provide equal rights, but avoids the need to have the necessary debate and battles to achieve equality.

He argues that Kagan is right that equal rights must be balanced against letting the voters decide matters, and that “judicial restraint” must be considered as well as equality.

It’s unclear whether Kagan would use this statement to rule against equality if and when Perry v. Schwarzenegger reaches the Supreme Court. But it is very clear that Rauch would like her to do exactly that:

This case is not primarily about the merits of gay marriage. It is primarily about who gets to decide. The plaintiffs say marriage is a civil right, and when a civil right is assailed, the Supreme Court has no choice but to take command. If the Supreme Court doesn’t protect minority rights, it abdicates its job.

Proposition 8’s defenders retort that gay marriage is not a civil right, because it is not marriage, or not marriage as defined by most Californians. If the court does not defer to the voters’ wishes, it oversteps its bounds.

Ms. Kagan seems to reject both forms of absolutism. Civil rights, she implies, are important, but so is judicial modesty, and a sensible judge balances the two. A sensible judge can say something like, “Same-sex marriage may indeed be a civil right, but not all civil rights demand immediate judicial intervention, and other important interests militate against imposing this one on the whole country right now.”

Notice what Rauch does here. He equates our side of the case – we who oppose Prop 8 – and the defendants in order to discredit us both. Instead of assessing the merits of the arguments, he seeks a moderate position which, like most moderate positions, actually serves the ends of the right-wing.

Rauch makes it sound like the desire to have the US Supreme Court step in and enforce the Constitution when a state is ignoring it is somehow “absolutist” or undermines the courts. This is a ridiculous claim which flies in the face of nearly 200 years of judicial precedent. Going all the way back to 1819 and the case McCulloch v. Maryland, the US Supreme Court has held that the Constitution is supreme to state law, with a few exceptions.

It’s worth nothing one of those exceptions is not the 14th Amendment. I’ve always felt it is one of THE most important amendments, maybe even more important than the First Amendment. The key phrase is as follows, bolding is mine:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These two clauses, known as the “due process” clause and the “equal protection” clause, are at the heart of this trial. The plaintiffs argue – correctly – that they have been denied equal protection of the laws because of Prop 8, which discriminates against them and is therefore invalid under the 14th Amendment. Rauch would prefer we ignore this argument and let discrimination stand for the sake of “judicial restraint.” Notice also that the amendment specifies “states” – unlike some other amendments, whose applicability to the states has been uncertain, the 14th was always intended to apply directly to the states, giving the federal courts a role in enforcing the amendment over what a state or its voters might do.

Importantly, we’ve been here before. Within 10 years of the passage of the 14th Amendment, the US Supreme Court began refusing to implement the amendment. Their argument was that the courts needed to show “judicial restraint,” but in cases like US v. Cruikshank (no relation) the Supreme Court refused to apply the 14th Amendment, arguing that the amendment should have only a limited application to the states. In Plessy v. Ferguson the Supreme Court even ruled that “separate but equal” was permissible. As a result, Jim Crow became established in the South as persistent discrimination and segregation was the law of the land.

In 1954, after over a decade of shifting judicial philosophies, the Supreme Court began to revive the 14th Amendment in the landmark Brown v. Board of Education case, which as you know ruled that school segregation violated the 14th Amendment and expressly overturned the “separate but equal” formulation. At the time, critics of the decision felt that it had gone too far, that it had improperly shed “judicial restraint.” The same charge was leveled at the Supreme Court in 1967 when they overturned all bans on interracial marriage in Loving v. Virginia, a case explicitly cited by Olson and Boies in their original lawsuit filing.

What we see is that Rauch’s argument legitimates discrimination. By placing “judicial restraint” above the 14th Amendment’s imperative to prevent state discrimination and denial of equal protection of the laws, he is repeating the hoary arguments made to oppose the Supreme Court’s decisive action that enabled the Civil Rights Movement to tear down the barriers of legalized segregation.

Rauch claims that the voters have a right to decide these questions, and that courts would be wrong to overstep those concerns. Yet the Supreme Court has already rejected that argument. The mandatory school segregation that was overturned in Brown and the interracial marriage bans that were overturned in Loving were the product of democratically-elected legislatures, and one could credibly argue that they were the expression of the will of the voters (keeping in mind of course than in many Southern states, African Americans were denied the right to vote).

In fact, when it comes to LGBT rights, the Supreme Court has already ruled that the Constitution trumps the voters. In 1996, the Supreme Court, led by Anthony Kennedy, handed down the Romer v. Evans decision, overturning a constitutional amendment approved by Colorado voters in 1992 that prevented Colorado from doing anything to protect or advance LGBT rights. Kennedy slammed Amendment 2 as being “unprecedented” and clearly motivated by animus toward LGBT people – one of the main reasons why that very issue has become so important in the Prop 8 trial.

This all goes back to a core principle of the US Constitution. Contrary to what Rauch seems to believe, the Constitution’s authors did not envision a democracy that was all-powerful. The Constitution’s very purpose was to both define as well as limit what government – and therefore, what the voters – could do. It absolutely did not suggest that the “will of the voters” was absolute or even of primary importance. Instead the Constitution produced strict limits on what both the government and the voters could do in the interest of protecting basic rights.

The 14th Amendment stems from this basic principle, and since the 1940s has been correctly interpreted by the Supreme Court to trump state laws and, therefore, the voters who either approved those laws or elected the legislators who passed those laws.

Rauch goes further and revives another talking point from the opposition to the 1950s Civil Rights Movement: that the Supreme Court was moving too fast and that we should slow down, wait, and let the public come to equality all on its own:

But the gay-marriage debate, while assuredly a civil rights argument, is much more than that. It is also a debate about the meaning of marriage, about the pace of change in a conflicted society and about who gets to decide. Whatever the activists on both sides say, nothing in the Constitution requires the Supreme Court to short-circuit the country’s search for a new consensus, either by imposing gay marriage nationwide or by slamming the door on it with an aggressively dismissive ruling. Sometimes the right answer for the courts is to step aside and let politics do its job.

Dr. Martin Luther King, Jr, Thurgood Marshall, and other Civil Rights leaders rejected this thinking. They argued, correctly, that it was the job of the courts to protect the rights of Americans whether it was the popular thing to do or not, whether the political system and the society were “ready” for it or not.

Of course, as we know from the recent history of what happens when marriage equality is put to a vote, it doesn’t seem that politics is “doing its job.” Instead we should let the courts do their jobs. This is why they build courthouses – to enable those being denied their equal rights to petition to force the courts to step in and provide relief.

Rauch’s argument flies in the face of this legal history and these political facts, and would permit discrimination to stand. It’s no wonder, then, that Maggie Gallagher praised Rauch’s op-ed:

This column by Jonathan Rauch is a real act of integrity: How many men in a legal same-sex marriage would publicly call on the Supreme Court not to strike down Prop 8, at least not yet? He calls Prop 8 unfair and unwise policy, but a judgment the people of California are entitled to make.

Right now, civil-union laws are being used to strike down marriage laws in courts; if you pass a civil-union law, gay-marriage advocates will use it in court to argue that only bigotry could explain why you are withholding marriage.

Rauch, on the other hand, recognizes that what he and others seek is not access to a merely legal construct, something created by government alone, but recognition by society of the value of his union as a marriage. Don’t short-circuit the conversation now taking place, he urges.

On that we agree.

Not surprisingly, Gallagher is wrong here – what marriage equality supporters seek is the recognition of their right to get married to a person of the same sex as themselves, a right that seems obvious under the 14th Amendment’s definition of “equal protection” and the precedents of cases like Loving v. Virginia. But it’s a telling sign of just how flawed Rauch’s op-ed was that Gallagher was quick to see in it an argument that boosted her defense of Prop 8.

Finally, there was Jonathan Capehart’s post at the Washington Post site on Monday, titled Could impending Prop 8 decision doom same-sex marriage? In it, Capehart takes Rauch’s op-ed and uses it as a basis to argue that the entire effort to undermine Prop 8 in the courts is too risky:

Given the current landscape, it would be astounding if the court overturned the will of the people as expressed through state constitutions, acts of the legislature and at the ballot box.

Capehart repeats Rauch’s error in seeing the “will of the people” as being more important than the US Constitution. But Capehart’s real concern is that a favorable ruling from Judge Walker could spark a backlash that would undermine marriage equality:

Legally speaking, the kindling is there for a controlled blaze confined to California or an inferno that could stop the national march toward marriage equality in its tracks possibly for decades either through a constitutional amendment (extremely difficult, but not impossible) or, as Rauch put it, through an “aggressively dismissive ruling” from the Supreme Court. All that’s needed is a spark. Right now, Judge Walker is the man holding the matches.

Capehart doesn’t assess the alternative, which is to simply let discrimination continue indefinitely. There’s no doubt that risks are involved with the legal strategy. But in a case like this, where Prop 8 is so flagrantly unconstitutional, and with two of the top constitutional lawyers in America – Ted Olson and David Boies – leading the case, it is a risk well worth taking. Again, these are why the federal courts exist – to take cases like this and apply the Constitution to ensure protection of rights.

Adam Bink has a good take on this over at Open Left, writing that:

As one colleague put it to me, we are creating the climate and momentum for a win, and must continue to do so.

That’s exactly right. Our movement must be ready for whatever Judge Walker rules, and whatever the Supreme Court ultimately rules. And part of being ready is building the movement and shaping the climate to favor a win. It’s how the Civil Rights Movement overcame the “go slow” advocates of “judicial restraint” in the 1950s and 1960s, and it’s what the LGBT rights movement needs to do here in the 2010s.

89 Comments July 6, 2010

Iceland’s Leader Gets Married

By Robert Cruickshank

One of the best headlines I ever read was back in 2001, when Bertrand Delanoë was elected mayor of Paris. The San Francisco Chronicle reported it as “Paris Beats SF to Gay Mayor.”

I have a similar reaction to the news out of Iceland this week that Prime Minister Johanna Sigurdardottir married her longtime partner, Jonina Leosdottir, the first time that a head of state anywhere in the world has been in a same-sex wedding:

Iceland’s prime minister made history last week when she wed her longtime girlfriend, becoming the world’s first head of government to enter a gay marriage.

But fellow Nordic nations hardly noticed when 67-year-old Johanna Sigurdardottir tied the knot with her longtime partner — a milestone that would still, despite advances in gay rights, be all but inconceivable elsewhere.

Scandinavia has had a long tradition of tolerance — and cross-dressing lawmakers and gay bishops have become part of the landscape.

“There is some kind of passion for social justice here,” respected cross-dressing Swedish lawmaker Fredrick Federley said. “That everybody should be treated the same.”

The article goes on to ask the question “how would this be received around the world?” I’m not sure I agree with everything that Louise Nordstrom, the article’s author, has to say. For example:

But a gay head of government would be impossible in strong Catholic nations.

“We will never see a gay prime minister in Italy. The power of the Catholic Church is too strong,” said Giuseppina Massallo, 60, from Sicily who lives in Rome. “We have institutions that make us believe that … being homosexual is simply not the right thing to do.”

I’m not sure I buy that. Two of the most deeply Catholic nations in Europe – Spain and Portugal – have recently legalized same-sex marriage. Italy will be a tougher nut to crack, and while there aren’t currently any major parties in Spain or Portugal led by an LGBT person (to my knowledge) I could see it happening in the near future.

The AP article is almost certainly right on about how Uganda, where a brutal anti-gay law has generated controversy and strong opposition, would react:

Ugandans were shocked to hear of Sigurdardottir’s marriage to her partner with whom she had been in a registered relationship since 2002. The partnership was converted into a marriage on Sunday, when a new law legalizing same-sex marriage went into force.

“Their society is finished, they have no morals,” said Uganda’s ruling-party spokeswoman, Mary Karooro Okurutu, described the marriage as “disgusting.”

The East African nation frowns on homosexuality and is considering proposed legislation that would impose the death penalty for some gays. The bill has sparked protests in London, New York and Washington.

Here in the US, the reaction is likely going to fall out on predictable lines. Those who oppose marriage equality will either ignore this or somehow cast it as part of the great plot to destroy heterosexual marriage, and those of us who support marriage equality will rightly point to Prime Minister Sigurdardottir’s marriage as a sign that society not only survives, but thrives when adults are able to marry the person they love.

One day there will be an openly LGBT mayor of San Francisco, an openly LGBT governor of California, and yes, an openly LGBT president of the United States. But right now, there are hundreds of openly LGBT elected officials who are denied their right to equality, prevented from marrying the person they love merely because of their sexual orientation. And there are thousands of same-sex couples who are denied that right as well, whose rights matter every bit as much as the elected officials, and every bit as much as us heterosexual folks who can marry, divorce, and marry again as many times as we like.

The Prop 8 Trial Tracker will be off for the long holiday weekend. And as we enter the 4th of July holiday, it’s worth remembering the words of the Declaration of Independence. “All men [all human beings, of course] are created equal” and have a fundamental right to “life, liberty, and the pursuit of happiness.”

It’s a bittersweet holiday when the pursuit of happiness is denied to anyone merely because of who they love.

143 Comments July 2, 2010

Obama Seeks Delay in DADT Trial

By Robert Cruickshank

Same-sex marriage isn’t the only LGBT equality-related issue making its way through federal courts here in California. The Log Cabin Republicans have filed suit in a federal court in Riverside seeking to have the Don’t Ask, Don’t Tell (DADT) policy ruled unconstitutional and overturned. Today we learned that the Obama Administration is seeking to have the case delayed while Congress debates the issue:

While President Obama struggles to get Congress to roll back the “don’t ask, don’t tell” law for gays and lesbians in the military, the last place he wants his lawyers to be is in federal court defending the policy — against a group of Republicans, no less.

But that’s where the Justice Department finds itself, with a trial scheduled July 13 before a federal judge in Riverside in a suit by the Log Cabin Republicans. Now the department has asked the judge to put the case on hold while the issue is before Congress.

Since the House has already voted to add a repeal of the policy to the military appropriations bill, and the Senate is preparing to consider the same step, a little patience might spare the judiciary from the time and expense of a trial, government lawyers argued in court papers. Besides, they said, the Supreme Court has recognized that judges don’t know much about the military, and Congress is much more qualified to make these kinds of decisions.

It certainly would look really bad if the Obama Administration were to defend DADT in court – probably because it would indeed be the objectively wrong thing to do. They’ve been facing an avalanche of criticism over their slow pace of action on LGBT rights issues, much of it deserved. Defending DADT in court would reinforce these criticisms, at a time when the White House is seeking credit for action in support of equality, and on DADT in particular.

As the SF Chronicle post indicates, the federal judge doesn’t seem inclined to take the Obama Administration’s side in this:

U.S. District Judge Virginia Phillips is scheduled to consider those arguments at a hearing Monday. If she refuses to delay the case, Justice Department lawyers have a fallback position — the only legally appropriate trial in this case would be one without any witnesses.

The Log Cabin Republicans want to present testimony from former service members who’ve been affected by don’t ask, don’t tell, and from scholars who would assert that the policy serves no useful purpose and actually hurts the military. But the Obama administration — which is in the case because of its stated policy of defending all federal laws — says all that evidence is irrelevant.

Because the suit is a “facial challenge” against the entire policy, rather than against its application to anyone in particular, the only evidence that matters, the Justice Department says, is the evidence before Congress when it passed the law in 1993. And because Congress “could have rationally determined” that a ban on openly gay or lesbian soldiers would maintain military effectiveness by protecting privacy and reducing sexual tension, the department says, there’s no need for testimony from witnesses about whether lawmakers acted wisely.

But that argument might not fly because Judge Phillips has already said she’s inclined to hold the government to a higher standard, an issue she also plans to address at Monday’s hearing. That standard would require the Justice Department to prove that don’t ask, don’t tell serves some legitimate public purpose in today’s military. It might be an uncomfortable task for an administration whose leader has publicly called the policy unfair and discriminatory and wants it repealed.

In other words, there is a specific dispute here about what kind of trial and what kind of evidence can be presented, owing to the fact that the case is filed against the policy and not on behalf of any individual impacted by the policy. The White House would clearly prefer that if it did go to trial, that the trial be as dry and legalistic as possible, without testimony from witnesses.

Why might that be? As we’ve all learned through the Prop 8 trial, testimony matters. When those who have been victimized by a systematic policy of discrimination are able to tell their stories, it creates a powerful moral argument against discriminatory policy, making it politically difficult to sustain that policy. It also makes it very difficult for a judge to overlook the evidence of the discriminatory impact of such a policy.

That’s not to say the White House is deliberately trying to silence LGBT voices the same way as, for example, the National Organization for Marriage. President Obama has called for DADT to be repealed, and has worked to get a repeal through Congress.

Still, it’s clear that the White House brought this situation upon themselves by their desire to delay DADT repeal. Had they moved quickly to repeal the indefensible policy in 2009 upon taking office, the policy might well be on its way out, or might be repealed altogether. Not only would it help the White House avoid further embarrassment and public anger, but it would also, you know, have been the right thing to do for all the LGBT soldiers serving our country.

80 Comments July 1, 2010

The Supreme Court’s Ambiguous Ruling in Doe v. Reed

by Robert Cruickshank

As we await the decision in Perry v. Schwarzenegger from Judge Vaughn Walker – in a case we expect to make it to the US Supreme Court – the Supreme Court has today issued a ruling in another marriage equality case that has many implications for the fight here in California.

You might recall that in 2009, the state of Washington (where I lived from 2001 to 2007) passed a law providing domestic partner benefits to same-sex couples, as part of the LGBT equality movement’s strategy to slowly but steadily eliminate the state’s barriers to full equality. Almost immediately after Governor Christine Gregoire signed the bill, anti-gay groups organized a petition drive to have the law placed before voters as a referendum. They barely succeeded in gathering the signatures, but Washington voters approved the referendum, known as R-71, upholding the domestic partnership law at the November 2009 election.

In Washington, as in California, the names of those that sign a ballot initiative petition are a matter of public record. This has been the case for nearly 100 years, and flows from the basic legal principle that for the public to have trust in the system – whether it’s the legal system or the electoral system – there must be public disclosure. In this case, that means disclosing the names of those who signed the petitions.

However, the anti-gay groups did not want these names to be disclosed, as part of a broader strategy to hide their names and intentions from the public – a strategy that we have seen repeatedly in the Prop 8 trial, from the successful effort to keep cameras from the courtroom to the effort to suppress unfavorable testimony. The anti-gay groups in Washington, led by Protect Marriage Washington, sued the Secretary of State, Sam Reed, on behalf of the petition signers to block disclosure. Since some of the signers wished to remain anonymous, the case was filed on behalf of a John Doe – hence the name of the case, Doe v. Reed.

Last year a US federal judge in Tacoma agreed with the anti-gay groups and agreed to block the release of the names of the petition signers. The US 9th Circuit Court of Appeals – the same court that will hear the inevitable appeal of the Perry v. Schwarzenegger decision – overturned that decision, and Protect Marriage Washington appealed to the Supreme Court, which heard oral arguments in the Doe v. Reed case in April 2010.

Today the Supreme Court issued a complicated ruling in the case. In an 8-1 ruling, the Court held that generally these petitions ARE subject to public disclosure, and that there is no presumption that the petition signatures can be private. However, the court also ruled that it is possible for disclosure to be prevented if plaintiffs could prove that they would suffer specific harm as a result of disclosure. And most importantly, the court did NOT decide whether the R-71 petitions in particular could be disclosed or not, remanding that to a lower court.

The ambiguity of the decision was compounded by the fact that there were no less than seven different opinions written by the justices in this case. Some of them were more favorable and some of them gave a reed of hope to Protect Marriage Washington in their effort to block the disclosure of the names. Over at Daily Kos Adam Bonin has a good overview of these opinions, which I’ll summarize here.

The main decision, written by Chief Justice John Roberts and signed by Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito and Sonia Sotomayor, was very strong in its defense of the principle of public access and political disclosure:

The State’s interest is particularly strong with respect to efforts to root out fraud, which not only may produce fraudulent outcomes, but has a systemic effect as well: It “drives honest citizens out of the democratic process and breeds distrust of our government.”

Of course, we at the Courage Campaign said much the same thing in our letter to Judge Walker asking him to televise the trial, a letter that over 140,000 people signed and was cited by Justice Breyer in his dissent against the January 2010 SCOTUS ruling barring cameras from the Prop 8 trial. It’s unfortunate that Chief Justice Roberts has been inconsistent in his application of the public’s right to know, but at least here in Doe v. Reed he understood the need to err on the side of disclosure.

When it comes to the issue of when disclosure can be blocked – as it was, for example, in the 1950s when the state of Alabama sued to get the membership list of the NAACP – Chief Justice Roberts argued that disclosure could be blocked:

if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed.

However, Breyer and retiring Justice John Paul Stevens (Doe v. Reed was his last case on the Supreme Court) argued that was too broad a formulation:

I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a substantial burden on speech. A statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are.”

And of all people, right-wing Justice Antonin Scalia wrote strongly in favor of the need for disclosure, and slammed the argument that somehow it is undemocratic to make petition signatures public:

And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Given this strong defense of disclosure by the majority of the Supreme Court, it is unfortunate that they did not rule on the R-71 disclosures themselves. We must hope that the federal court in Washington State will rule in favor of disclosure.

Washington Families Standing Together, the organization that pushed for the domestic partner law and won the fight to approve R-71 on the November 2009 ballot, had this to say about the ruling:

With regard to the assertion by the anti-gay groups that they would be harmed if petition signatures were subject to public disclosure … the Supreme Court has in the past allowed exemptions to public disclosure where there’s a clear minority party that has suffered both official and societal retaliation by the majority such that disclosure presents a very real threat. With regard to Referendum 71, however, the groups making this claim were not the minority, but to the contrary, were the ones trying to diminish the rights of the minority. They will be hard pressed to convince a judge the record here is otherwise.

WFST also reminded us that there has so far been no evidence of harassment of anyone who signed the petitions, indicating there is no legal basis to deny disclosure even according to today’s Supreme Court ruling:

In an amicus brief provided to the Supreme Court in Doe v. Reed, a group of political scientists reported that not only was the assertion of alleged harassment unsubstantiated in Washington State, but the plaintiffs did not present a single verified threat to any signer of a ballot measure petition in any state in any election. As their brief said, “More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the Internet, yet there is no evidence that any of these signers has faced any threat of retaliation or harassment by reason of that disclosure.”

We can expect the anti-gay groups to make such a claim and continue fighting to block public disclosure of petition signers’ names. It’s important to remember why they want to block that disclosure – and why they wanted to keep cameras out of the courtroom, why they tried to undermine California’s own disclosure laws to hide the names of donors to Prop 8.

The reason is simple: Because it helps them politically. By claiming that they would somehow be harmed by public scrutiny and disclosure, Prop 8 supporters are reinforcing a narrative of victimhood that serves their broader agenda of painting marriage equality supporters as the bad guys. They also are able to keep their true feelings hidden, as their radicalism is masked by vague and reassuring images of smiling people protecting children and families from some existential threat that is supposedly inherent in same-sex marriages.

Conservatives have for decades cultivated a politics of victimhood – presenting themselves as victims of some group, usually liberal and often an oppressed minority, in order to gain sympathy for their insane beliefs and to delegitimize progressive ideas and actions. The result is a massive distortion of the true effects of Prop 8, and the normalization of support for discriminatory policy.

In other words, what we’re witnessing in America right now is a broad right-wing effort to hide the truth from the public so that voters can be more easily manipulated to embrace right-wing and/or corporate-friendly policies that voters might otherwise reject. It is an insult to our democracy and to our intelligence.

Ultimately, the desire to prevent public disclosure is very deeply linked to the desire to block same-sex marriage. Those who oppose marriage equality want to make it safe in this country to discriminate against LGBT people. They understand that overt statements of dislike of LGBT people don’t fly in California, so they have to hide it, whether it’s in their deceptive campaigning, their push for a closed courtroom, or their efforts to hide their names from mandatory disclosure.

The Supreme Court’s ruling is ambiguous. But in one way it is quite clear: that disclosure and public access is essential to our democracy. That flies directly in the face of what the anti-gay groups have been arguing. In that sense, the Supreme Court has given us an important victory, even as we wait to see what happens with the R-71 signatures.

78 Comments June 24, 2010

Why We Must Tell America the Truth About the Prop 8 Trial

by Cleve Jones

In his most famous speech, my good friend Harvey Milk urged LGBT people to come out of the closet. “For invisible, we remain in limbo,” he said.

Harvey knew that full equality would not become reality as long as the public was also shielded from the truth about who we are. The hollow arguments at the foundation of our institutionalized second class citizenship would never be challenged unless we embraced our identities publicly.

With closing arguments in the Prop. 8 trial scheduled for this Wednesday, Harvey Milk’s words ring as true today as they did when they were first uttered in 1978. And all parties to the Prop. 8 trial know it.

That’s why the Courage Campaign and CREDO Action gathered nearly 140,000 petition signatures asking to have the historic federal trial over Proposition 8 (Perry vs. Schwarzenegger) televised back in January. It’s also why we launched the Prop. 8 Trial Tracker blog, which has received two million hits so far, to help everyday Americans stay connected to the important and historic events happening in the courtroom.

And it’s why last month, we launched an unprecedented grassroots campaign to bring this historic trial to life across America through a project called Testimony: Equality on Trial.


But most Americans have not seen this evidence.

That’s because after successfully petitioning the U.S. Supreme Court to deny public access to the trial, Prop. 8’s supporters have fought to strike their own witness testimony from the official trial record. Their objective has been to keep the truth “invisible” to the American people no matter what the outcome of a case that is likely to continue until it reaches the U.S. Supreme Court – a process that could take years.

Now is the time to answer Harvey Milk’s call to action by taking the Prop. 8 trial out of the legal abstract and into the public square. It is time to empower the tens of millions of Americans who are also on trial because of the lies at the heart of Prop. 8 – but whose stories will never be admitted into evidence in this case.

Through videotaped, guerrilla theater trial re-enactments and depositions by everyday Americans who have come to understand the destructive power of discrimination, Testimony can be the definitive public education campaign for the LGBT equality movement.

It all starts with your participation. All you need is a camera, a friend, and an internet connection.

Visit the Equality on Trial Website to get involved today.

Follow Equality on Trial on Facebook

I created the Names Project, known as the AIDS Memorial Quilt, to engage every American who knew anyone afflicted by the pandemic and to bring AIDS and HIV out of the shadows. That project changed the way our country, including the government and health researchers, viewed HIV/AIDS. And that’s precisely what Testimony will do for equal rights.

I remember when Anita Bryant used her virulent brand of homophobia to strip basic rights from LGBT people in Dade County, Florida in 1972. My generation of activist – the Stonewall Generation – vowed never to accept public votes on our rights. As Ted Olson says, “when the rights of minorities are voted on, minorities usually lose. That’s why we have the constitution and the federal courts.”

This trial is the best shot the Stonewall Generation has of seeing full equality. The strategy of fighting state by state, county by county and city by city has created a patchwork of inequality where some have certain rights, others none. It divides Americans from each other. And it fails to recognize that true equality can only come from the Federal Government.

Our challenge in the months ahead is to share the testimony heard by Judge Walker with our fellow citizens and our representatives in government; to accelerate the profound shift in public opinion on this issue and to make that change evident to the President, Congress and Supreme Court.

We need your help to ensure that this trial, and the millions who will be impacted by its outcome, are invisible no more.

113 Comments June 16, 2010

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