Annuling the 18,000?

Some of the organized groups supporting the ban on "same-sex marriage" have filed legal briefs asking the California Supreme Court to annul the 18,000 "same-sex marriages" that were performed during the brief interval of time wherein they were legal.

Serious thought about this issue makes me glad I am not a judge. Nevertheless, I feel it correct to apply the same dispassionate analysis to the question that I have to all Prop 8 issues in this blog.

Ban supporters argue that Article 1 Section 7.5 is as clear as it is brief: "Only marriage between a man and a woman is valid or recognized in California." This sentence is currently Constitutional law. It's direct and straightforward application directly supports the argument for annulment of the 18,000 same-sex unions.

On the other side...those 36,000 people entered into those unions at a time when it was perfectly legal to do so. Their actions broke no laws when they were taken. I am not a lawyer, but I have friends who are, and they tell me it is quite rare in jurisprudence for a law to be made retroactive.

There may be legal reasons, stratagems, or tactics that compel this request by ban supporters. I can find no statement to that effect, which may be understandable given the current order of battle. Absent that explanation, the request feels vindictive and punitive to me.

Generally, our culture expects victors to act magnanimously, and that is my natural inclination. So why do I feel so conflicted over this issue?

Maybe it's because the battle isn't over yet.

Tazing Attorney General Moonbeam

I have zero problem with the fact that California's Attorney General, Jerry Brown, has a personal opinion about "same-sex marriage" and the legality of Proposition 8.

I have zero problem with the fact that he is disappointed that Prop 8 passed and that he wishes it hadn't.

I have a huge problem with the fact that he has chosen to violate the oath of his office and use its power to attempt to persuade the California Supreme Court to invalidate Prop 8 and nullify the will of the people in a free and legal election.

Prop 8 is no longer Prop 8--it part of the CONSTITUTION of the State of California. Brown's primary legal and moral obligation in the office of AG is to uphold and defend the Constitution. If Jerry Brown can't do that, and chooses instead to pursue a course of public advocacy for his personal opinion, he should have the integrity to resign the office first.

Itoldyaso

I'm not above an "Itoldyaso" when I feel I called the shot sufficiently right. In the face of withering fire from my conservative friends during the campaign, I predicted that Obama would, after running for office from the left, actually govern the country from the center-right.

According to The Politico Network, Mr. Obama has, to date, disappointed and dismayed the far left by surrounding himself with a center-right Cabinet. The national director of the Progressive Democrats of America seems so distressed he sounds like he thinks Obama is pitching a shutout: “He has confirmed what our suspicions were by surrounding himself with a centrist to right cabinet. But we do hope that before it's all over we can get at least one authentic progressive appointment.”

Among Obama's recent actions that are heartening (to me, at least):

1. Instead of immediately rolling back tax cuts for people making over $250,000 per year, he now says he will simply let them expire on schedule in 2010.

2. Instead of ending the war on is first day in office, he has stated he will begin to “design a plan for a responsible drawdown.”

3. He as changed his mind about taxing the "windfall" profits of large oil companies (which ought to hearten everyone whose retirement savings are partly invested therein).

Juan Cole, who runs a prominent anti-war blog called Informed Comment, echoed the view I expressed in an earlier post in this blog when he said of Obama, "But overall, my estimation is that he has chosen competence over ideology, and I'm willing to cut him some slack.”

During the campaign, I constantly warned my friends on the right to believe no campaign promise by any candidate. I also said that politicians run on the extremes in the primaries then move toward the center during the campaign. If elected, they govern by orbiting the center where most of the country's citizens actually live, politically speaking.

Of course, the performance of this new government remains to be seen, but I'm genuinely hopeful. So, my conservative friends, all hope is not lost. Yet.

Remember, Itoldyaso.

Just Say No...To Mobs

This full-page ad ad appeared in the New York Times today. It was signed by a number of prominent scholars, politicians, and religious leaders in response to the targeted violence by Proposition 8 opponents against the Church of Jesus Christ of Latter-day Saints.

Click here to learn more about the organization behind the ad and add your name to the list of signatories if you wish.

A Grand Strategy

Fareed Zakaria hits the bulls eye again in this article about the changing world and a compelling need for a new "grand strategy" that is FAR different than any the United States has attempted to execute in the past.

We may still be the lone superpower on the planet, but our waning influence no longer allows us the luxury of acting as though we were.

Zakaria eloquently expresses why the "rise of the rest" of the growing nations, especially, China, India, Russia, Brasil, et. al. now compels us to pursue a world where fully functional alliances and partnerships are the rule instead of the exception.

Want one example? Think about the many hundreds of billions of dollars the federal government is about to throw at our economy to keep it afloat. There are only two ways to accomplish that: either print more money (and fuel hyper-inflation) or sell U.S. bonds and notes to someone. That someone has to be China, which recently passed Japan as the single largest holder of U.S. government debt on the planet. We had better learn to get along with the Chinese.

Highly recommended reading.

A Right to Conscience?

Word out of Washington that in the final days of his presidency, Dubya may expand the right of doctors and other health care workers to refuse to perform any medical procedure that violates their moral conscience. Procedures such as abortion and artificial insemination are at the center of this debate.

Opponents argue that such an expanded law would sacrifice patient care quality on the altar of the doctor's/nurse's/other's religious beliefs. Health care managers argue that an expansion of the law would invite chaos if any health care worker could refuse to perform any part of their job as a conscientious objector.

My take on this debate is purely practical: it seems to me that there must be enough doctors and other health care workers who have no objection to abortion, artificial insemination, or other controversial medical procedures to provide them to anyone who wants one.

I doubt that forcing a doctor to perform a procedure to which he/she has moral objections is good for patient care quality. Whenever I undergo a medical procedure, I want the doctor to be on MY side, rooting for me all the way.

If a patient wants a certain procedure performed, just choose a doctor/hospital who will do it gladly and professionally. Even if you succeed in legally forcing a doctor to act against his/her conscience, why would you trust yourself to his/her care?

Ho Ho Ho and a Body on WalMart's Floor

Although it is true that the universe was arranged for human beings, when I see a story like this I have to wonder why, if just for a moment.

I'm still shaking my head.

The Lamest Duck, Indeed

This is a photo of President Bush referred to in an article entitled, "The Lamest Duck", by Joe Klein.

As Klein notes, we tend to be somewhat sympathetic to presidents who are just entering or just leaving the office, but it is hard for me to be so in the case of George Bush. After a long list of foolish and clueless decisions that further bankrupted our country, caused the deaths of thousands of our soldiers and many thousands of innocent civilians, and drove world opinion of the Unites States to record lows, Bush tops off his presidency by basically disappearing when the biggest economic crisis in decades savages us all. That is not exactly my idea of "presidential".

Klein's summary is especially on target, in my opinion, when identifying the root causes for Bush's stultifying government:

"In the end, though, it will not be the creative paralysis that defines Bush. It will be his intellectual laziness, at home and abroad. Bush never understood, or cared about, the delicate balance between freedom and regulation that was necessary to make markets work. He never understood, or cared about, the delicate balance between freedom and equity that was necessary to maintain the strong middle class required for both prosperity and democracy. He never considered the complexities of the cultures he was invading. He never understood that faith, unaccompanied by rigorous skepticism, is a recipe for myopia and foolishness."

El Coyote Update

This was the scene at the El Coyote Mexican Cafe in Los Angeles shortly after Prop 8 passed. Protesters, angered by the results of the free and fair election, took it upon themselves to try to deny the restaurant's owners and its 89 workers (many of whom are gay) a living because one of the owners exercised her legal right to vote and to contribute a whopping $100 to a political cause.

Well...this is the scene now:


The restaurant, family owned and operated since 1931, is still in business. My son and his friend joined a group for dinner there on Saturday night. They reported that the place was PACKED, the food was delicious, and that there were a number of men sitting at tables silently smiling into each others eyes.

Oh, and for the record, my son's dinner companion is indubitably FEMALE. :)

Now HERE Is Some Justice

Unless you are big like me, you can't truly understand how the following article could make a grown man cry. (Allow me to define "big" for you: my hip bones press against the armrest panels of an airline seat, and the headrest hits me squarely between the shoulder blades. Try doing that for a five-hour a cross country flight.)

---------------------
OTTAWA (Reuters) – Obese people have the right to two seats for the price of one on flights within Canada, the Supreme Court of Canada ruled on Thursday.

The high court declined to hear an appeal by Canadian airlines of a decision by the Canadian Transportation Agency that people who are "functionally disabled by obesity" deserve to have two seats for one fare.

The airlines had lost an appeal at the Federal Court of Appeal in May and had sought to launch a fresh appeal at the Supreme Court. The court's decision not to hear a new appeal means the one-person-one-fare policy stands.

The appeal had been launched by Air Canada, Air Canada Jazz and WestJet.
--------------------

You think only the big people are happy? What about all the skinny people who ever had to sit next to them?


This one is definitely a WIN-WIN!

Sir Elton Weighs In

Elton John had an interesting comment on California's recent Prop 8 battle. Speaking of his long-time partner, John said:

"We're not married. Let's get that right. We have a civil partnership. What is wrong with Proposition 8 is that they went for marriage. Marriage is going to put a lot of people off, the word marriage."

"I don't want to be married. I'm very happy with a civil partnership. If gay people want to get married, or get together, they should have a civil partnership," John says. "The word 'marriage,' I think, puts a lot of people off.

"You get the same equal rights that we do when we have a civil partnership. Heterosexual people get married. We can have civil partnerships."

Now, if we can just get Cher to say the same thing, maybe all the fuss could end. :)

Top Mormon Leaders Call for Civility in Public Discourse

Today, the Church of Jesus Christ of Latter-day Saints released the following statement regarding California Proposition 8 and the election aftermath.

SALT LAKE CITY 14 November 2008 Five months ago, the First Presidency of The Church of Jesus Christ of Latter-day Saints sent a letter to members of the Church in California, encouraging them to join the millions of other Californians from many religious denominations, ethnic groups and political persuasions in a broad coalition to defend marriage as it has been defined for millennia.

During the election campaign, both sides of the argument on Proposition 8 had ample opportunities to express their viewpoint. The result was conclusively in favor of traditional marriage. More than 40 states in the United States have now voted to protect traditional marriage, either directly or through their elected representatives.

Today the First Presidency issued this statement about the democratic process:

"Since the people of California voted to reaffirm the sanctity of traditional marriage between a man and a woman on November 4, 2008, places of worship have been targeted by opponents of Proposition 8 with demonstrations and, in some cases, vandalism. People of faith have been intimidated for simply exercising their democratic rights. These are not actions that are worthy of the democratic ideals of our nation. The end of a free and fair election should not be the beginning of a hostile response in America.

The Church is keenly aware of the differences of opinion on this difficult and sensitive matter. The reasons for this principled stand in defense of marriage have already been articulated elsewhere. However, some of what we have seen since Californians voted to pass Proposition 8 has been deeply disappointing.

Attacks on churches and intimidation of people of faith have no place in civil discourse over controversial issues. People of faith have a democratic right to express their views in the public square without fear of reprisal. Efforts to force citizens out of public discussion should be deplored by people of goodwill everywhere.

We call upon those who have honest disagreements on this issue to urge restraint upon the extreme actions of a few that are further polarizing our communities and urge them to act in a spirit of mutual respect and civility towards each other."

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Once again, thanks for stopping by.

Gay Vigilantes

You want to know what some one's character is truly like? Do one of two things:

1) Observe them when they think they are utterly alone.
2) Observe them when they are under a ton of stress.

Seems to be a lot of stress in the "gay" community today, because some people are showing their true character. They are angry and they are not gonna take it any more. They're not angry enough to kill anybody (at least not yet), but they are effectively lynching the businesses owned by Yes on 8 donors. This is not a broadcast protest--this is targeted, individual vengeance to take away some one's livelihood. It is a direct, personal attack on people who committed the heinous crime of exercising their constitutional rights to participate legally in the political process. What happened to the "Love, Tolerance, Compassion" mantra of the gay community? Why are prominent gay leaders not condemning these personal, individual attacks?

It doesn't stop there. Some person or persons sent envelopes full of white powder to two temples of the Church of Jesus Christ of Latter-day Saints.

That is NOT political freedom of speech--THAT IS TERRORISM.

I think it is interesting that The L.A. Gay & Lesbian Center issued a statement almost immediately after the news broke:

"While the L.A. Gay & Lesbian Center organized a peaceful demonstration against the involvement of the leadership of the Mormon Church in the deceitful Yes on Prop. 8 campaign, we decry the use or threat of violence. Just as the lesbian, gay, bisexual and transgender community seeks the right to be treated equally under the law, all Americans should have the right to live lives free from fear and violence," the statement said.

Well, well.

100 Gay Legal Scholars Confer

The following reported in TIME magazine:

"In a teleconference last week among more than 100 gay legal scholars and others who support gay marriage, the mood was dour. "This has cast a pall" over what had otherwise been a historic election on Nov. 4, said D'Arcy Kemnitz, executive director of the National Lesbian Gay Law Association. Longtime gay rights advocate Dean Trantalis of Fort Lauderdale, Fla., and others on the conference call expressed concern that the gay rights movement had become too focused on marriage, and is now paying the price in other more critical areas. "Marriage was never our issue," Trantalis said. "It was thrust upon us by the other side, and they've done a very good job of beating us up over it."

Legal Challenges to Prop 8

If you want to understand the basics of the current legal challenge to Prop 8's passage, read on.

Article 18 of the California state Constitution provides that the Constitution can be changed either by "amendment" or by "revision". An amendment may be enacted by initiative with a majority vote, as Prop 8 was. A revision must first be passed by two-thirds of the Legislature before being submitted to the voters.

Why two different ways? The revision method is, under case law, reserved for a matter that "substantially alters the basic governmental framework set forth in our Constitution." Opponents of Prop 8 are arguing the Prop 8 did precisely that.

The court will decide.

The prima facie case can appear quite reasonable to a non-lawyer. But consider this: the court has repeatedly taken a VERY narrow view of the definition of a "revision". Amendment initiatives as dramatic as Prop 13 (limited property tax rates), Prop 140 (imposed legislative term limits), and the initiative that reinstated the death penalty in 1972 all failed to qualify as "revisions" in the eyes of the court. Especially noteworthy is the fact that the 1972 death penalty amendment directly limited the judiciary's power to declare fundamental rights.

There are also ample precedents in other states where the the court has rejected the type of challenge Prop 8 opponents are now presenting. The ACLU recently made this same “constitutional revision” claim in a nearly identical matter in Oregon. The claim was made under almost identical provisions of the Oregon State Constitution, against an almost identical voter constitutional amendment which read, “…only a marriage between one man and one woman shall be valid or legally recognized as a marriage.” The rejection by the Court of Appeals was unanimous. (Martinez v. Kulongoski (May 21, 2008) --- P.3d----, 220 Or.App. 142, 2008 WL2120516).

I am no lawyer, but I do know lawyers. None of them I have asked about this issue think the Prop 8 opponents have much of a chance of winning this legal challenge.

As the saying goes, "The race is not always to the swift nor the battle to the strong, but that's the way to bet."

Prop 8 Protests--The Gift That Keeps on Giving

I have a sincere question: How do the Prop 8 protesters think their actions are going to help their cause?

Unless the protests are nothing more than a tantrum outlet for the negative feelings Prop 8's victory gave them, they must see some point or purpose in them. I'm trying to understand what that point or purpose is.

Is it to send a message that they are deeply hurt, saddened and angry over the election results? Well, I think the rest of the world pretty much had that figured out already. No rocket science there.

Is to send a message that they are not about to stop their fight for same-sex marriage rights? Well, I think the rest of the world pretty much had that figured out already, too. Anyone with a brain, anyway.

Are the protesters trying to gather some more converts to their cause? If so, maybe they should consider how attractive they appear on television and in the newspaper. The scenes in the media are so reminiscent of the 60s...and tend to give the "movement" that same cachet: a bunch of people who march, chant, and scream because they can't figure out an effective way to accomplish their goal. Some photos show protesters who appear to be rabidly wide-eyed and foamy-mouthed, although I imagine few of them actually are. But rabid people make for interesting news photos that sell more newspapers.

Then, consider the bonus public relations points you get for appearing to attack a church. Do you really think the centrist votes you need to convert in the next electoral challenge are going to be sympathetic to that kind of behavior?

How about this blog post on the L.A Times website from Tim B. on November 5: "I live in West Hollywood and was ruffed up by this mob on the way home from work tonight. My car was engulfed, I was shoved, my car hit and the mob rocked my car trying to tip it. I support equal rights for everyone, voted no on prop 8, BUT this kind of behavior does not foster understanding." I wonder if Tim B. will vote with you next time.

The smarter, cooler heads who led the official No on 8 Campaign are right: “We achieve nothing if we isolate the people who did not stand with us in this fight. We only further divide our state if we attempt to blame people of faith, African American voters, rural communities and others for this loss."

Oh, and one more suggestion. Get a spellchecker for those protest signs.

No on 8 Leaders Speak

As reported in the Los Angeles Times and on the No on Prop 8 official website, four prominent leaders of the No on 8 campaign issued a statement which included the following passage:

“We achieve nothing if we isolate the people who did not stand with us in this fight. We only further divide our state if we attempt to blame people of faith, African American voters, rural communities and others for this loss."

I can only acknowledge that statement as absolutely true, and hope those flag waving, screaming protesters who attempted to defile a sacred edifice will get this message from their leaders. The protesters' actions, which bear a significant resemblance to a childish temper tantrum, are hurting their own cause.

Court Challenges to Proposition 8 Victory

My son drew my attention to the following statement, issued today by the general counsel for Protect Marriage.com. It is worth repeating here:

Statement By Andrew Pugno, General Counsel of ProtectMarriage.com
November 05, 2008
Contact: (916) 608-3065
By Andy Pugno

“The lawsuit filed today by the ACLU and Equality California seeking to invalidate the decision of California voters to enshrine traditional marriage in California’s constitution is frivolous and regrettable. These same groups filed an identical case with the California Supreme Court months ago, which was summarily dismissed. We will vigorously defend the People’s decision to enact Proposition 8.

This is the second time that California voters have acted to define marriage as between a man and a woman. It is time that the opponents of traditional marriage respect the voters’ decision.

The ACLU/Equality California lawsuit is completely lacking in merit. It is as if their campaign just spent $40 million on a losing campaign opposing something they now say is a legal nullity. Their position is absurd, an insult to California voters and an attack on the initiative process itself.

The right to amend California’s Constitution is not granted to the People, it is reserved by the People. The Supreme Court has repeatedly acknowledged the reserved power of the People to use the initiative process to amend the Constitution. For example, when the Rose Bird Court struck down the death penalty as a violation of fundamental state constitutional rights, the People disagreed, and in the exercise of their sovereign power reversed that interpretation of their Constitution through the initiative-amendment process. Even a liberal jurist who vehemently disagreed with the People’s decision on the death penalty, Justice Stanley Mosk, nevertheless acknowledged the People’s authority to decide the issue through the initiative-amendment process.

It should also be noted that the ACLU recently made this same “constitutional revision” claim in a nearly identical matter in Oregon and it was unanimously rejected. The claim was made under almost identical provisions of the Oregon State Constitution, against an almost identical voter constitutional amendment which read, “…only a marriage between one man and one woman shall be valid or legally recognized as a marriage.” The Court of Appeals of Oregon unanimously rejected the ACLU’s “revision” claim. (Martinez v. Kulongoski (May 21, 2008) --- P.3d----, 220 Or.App. 142, 2008 WL2120516).

The coalition that has worked so hard for the past year to enact Proposition 8 will vigorously defend the People’s decision against this unfortunate challenge by groups who, having lost in the court of public opinion, now turn to courts of law to pursue their agenda.”

A Victim's Lament

My wife and I have been initiated into the crime victim's club.

Someone stole the "Yes on Proposition 8" sign from our front lawn.

Apparently there is some organization to this "crime wave" in our city. Not only are signs disappearing from lawns, but someone spray painted "Prop H8te" on the big signs in front of the Union Bank building. Five people were arrested yesterday under suspicion of stealing Prop 8 signs and committing associated vandalism. Police caught them with the evidence in their vehicles--destroyed Prop 8 signs.

It seems likely to me that these people consider themselves heroes for their cause which, apparently, is the defeat of Proposition 8. Noble freedom fighters for justice, no doubt, bravely willing to risk jail for their beliefs. High-fiving each other after every theft.

I wonder if they know how many crimes they actually committed in their tantrum of personal expression?

Our sign was in the center of our lawn, well back from any walkway. They had to enter our property without our permission to take the sign, which is Trespassing. The fact that they took the sign means they entered our property with the intent to commit a crime, which is Criminal Trespass. Then there's the actual stealing of the sign (our personal property), which is Theft. Oh, and the violation of our constitutionally protected civil right to freedom of speech. That's a Federal offense, and a felony.

Freedom fighters? Heroes? I think not. If they had any guts they would let the whole world see them take the sign. Instead, they sneak in and steal, hiding their identities like the cowards they really are. They have chosen to wear the mask of the criminal.

I obviously don't care about the financial value of the sign, and people walk on my lawn every day, I suppose. But violate my constitutional right to freedom of speech and I care a whole lot about that.

I don't know if they'll ever be caught. But I do know I have lots more "Yes on Proposition 8" signs. Oh, and next time...I hope they smile for the new cameras.