Prop 8

Are Signatures on a Referendum Petition Private?

Joe Mathews — Mon, 14 Sep 2009 10:51:00 -0400

Yes, said U.S. District Judge Benjamin Settle last week in granting a preliminary injunction that keeps secret the names of voters who signed the petition demanding a refernedum on a Washington state law that grants virtually all the rights of married couples to domestic partners.

Settle's decision comes from his stated and understandable desire to protect those signers from the pressure tactics of gay rights groups, who have said they would target those who signed (just as advocates for and against same-sex marriage in California have sought to pressure donors to the campaigns for and against Prop 8). Gay rights groups are probably hurting themselves with this approach, and all sides in the dispute should be more respectful of those with whom they disagree. But this is a dangerous decison that does real damage to the first amendment and to the public's right to know.

Petitioning the government to overturn a law is not, in way shape or form, a private act. It's a legislative act, in fact. Such a decision could be used as a precedent to shield other legislative acts and attempts to influence the law from disclosure and scrutiny. Some contacts between the public and the government required privacy, especially when the public is required to give the government information (as in the case of taxes). But since the Declaration of Independence, signing one's name to a petition in this country has been a public act. Settle's decision is a terrible departure from our constitutional tradition. he should reverse himself before a higher court does it for him. .

First They Came For the Gay People...

Joe Mathews — Thu, 28 May 2009 19:01:00 -0400

Your blogger, whose favorite flavor is schadenfreude, has been amused as all sorts of people realize -- in the wake of the supreme court's decision upholding Prop 8 -- just how powerful and inflexible California's ballot initiative is, and how easy it would be for a majority to infringe on the rights or prerogatives of others.

But my favorite reaction so far comes from the atheist community, via The American Chronicle. Michael Doss, the California director of American Atheists, is quoted as saying of the decision: "Today, same-sex couples lost the right to marry via a citizen-driven ballot initiative. If one minority group can lose rights this way, there's very good reason to believe that any other, including atheists, could be next."

Well said. Do not fear God. Fear the initiative process.

The California Supreme Court Offers A Suggestion for Constitutional Convention

Joe Mathews — Tue, 26 May 2009 18:58:00 -0400

The California Supreme Court's decision today to uphold Prop 8 is more about the California constitution and the initiative process (the true winner in the case) than it is about same-sex marriage. In effect, by a 6-1 vote, the court makes plain that it would have loved to overturn Prop 8--but couldn't because of the constitution.

And in the following passage from today's decision, the court seems to offer a suggestion to advocates of a constitutional convention: that the state needs provisions limiting the ability of the people to change certain parts of the constitution by initiative. The political problem with this is, of course, that advocates of such a convention desperately want to avoid having issues like same-sex marriage brought into the debate over a convention.

Anyway, here's the relevant passage:

"The constitutions of a number of other states contain express provisions
precluding the use of the initiative power to amend portions or specified
provisions of those states' constitutions (see, e.g., Mass. Const., amend. art.
XLVIII, pt. II, § 2 ["No proposition inconsistent with any one of the following
rights of the individual, as at present declared in the declaration of rights, shall be
the subject of an initiative . . . petition: [listing a number of rights, including the
rights to just compensation, jury trial, and protection from unreasonable search,
and the freedoms of speech, assembly, and of the press]]; Miss. Const., art. 15,
§ 273, subd. (5) ["The initiative process shall not be used: [¶] (a) For the proposal, modification or repeal of any portion of the Bill of Rights of this Constitution"].) In contrast, the California Constitution contains no comparable limitation. In the absence of such an express restriction on the initiative power, and in light of past
California authorities, we conclude that the California Constitution cannot be
interpreted as restricting the scope of the people’s right to amend their
Constitution in the manner proposed by petitioners.

Prop 8 Decision: A Word and a Question

Joe Mathews — Tue, 26 May 2009 16:57:00 -0400

I've just completed a very fast reading of the California Supreme Court decision this morning that upholds the Prop 8 ban on same-sex marriage -- and also upholds the legality of the approximately 18,000 gay couples who got married in the state last year.

As readers of this blog know, I'm a strong supporter of same-sex marriage -- but I think the court did the right thing. The California constitution is different than the U.S. constitution. The people have strong powers to change the constitution through the ballot initiative. To overturn Prop 8 would have forced the justices to rewrite the state constitution and strip the people of those powers. I believe that California's initiative process should be less powerful and more flexible, but this wasn't the case to do something about it.

The decision makes plain that Prop 8's effect is confined to one word; marriage. The court writes that gay couples must continue to have all the rights and responsibilities of married couples. But their unions can't be called marriages, because of Prop 8.

Now, here's a question for same-sex marriage supporters, who quite rightly will now turn to drafting and qualifying an initiative for either the 2010 or 2012 ballot that would overturn Prop 8. What will be in your initiative? Specifically, same-sex marriage supporters would be wise -- politically and as a matter of policy -- to include strong language in their initiative protecting religious freedom. No church member or clergy member should be forced to change their faith in any way as a result of legalization of same-sex marriage. Including such a provision would not only be the right to do but also it would be smart politics. Prop 8's supporters fanned fears that legal same-sex marriage would infringe on how people practice their faith. An initiative to overturn Prop 8 should take that argument away.

Is It Better For Gay Marriage if Prop 8 Is Upheld?

Joe Mathews — Mon, 25 May 2009 05:46:00 -0400

Yes, according to Travis Ballie, writing at Daily Kos. He thinks it would be a stronger statement to have voters -- rather than judges -- overturn the Prop 8 ban on same-sex marriage. I tend to agree, since the goal is not simply legal same-sex marriage in California but marriage equality nationwide.

Prop 8 Decision Tuesday

Joe Mathews — Fri, 22 May 2009 15:28:00 -0400

The California Supreme Court just announced it will rule on legal challenges to Prop 8, the California initiative ban on same-sex marriage, on Tuesday.

Here's An Economic Stimulus Idea: Overturning Prop 8

Joe Mathews — Mon, 18 May 2009 21:11:00 -0400

Two new studies from the Williams Institute at the UCLA School of Law look at the economic impacts on Massachusetts five years after that state legalized same-sex marriage.

One study, which looked at data from the American Community Survey, found that same-sex marriages had a small but positive impact on the caliber of the workforce. "This study shows that in Massachusetts marriage equality resulted in an increase of younger, female, and more highly educated and skilled individuals in same-sex couples moving to the state."

The other study, based on a survey and the crunch of state-collected tax revenue data, estimates that same-sex marriages produced a net economic benefit to the state of $100 million.

The Subject I've Been Trying to Avoid

Joe Mathews — Fri, 15 May 2009 15:41:00 -0400

You may have noticed that your blogger has been ignoring the hottest direct democracy story in the country: the controversy over Miss California's remarks in opposition to same-sex marriage (and thus in favor of the Prop 8 ban) in her home state.

Your blogger thought of posting on this subject, but worried it might seem like a cheap stunt to drive traffic (like the bloggers who add "Britney Spears" to the topics lists on their posts). Or a desperate bid for attention. Or that some might think that the picture of a beauty pageant queen had no place on the web site of a serious think tank.

But sometimes, the direct democracy news demands what the direct democracy news demands. And so I've waded into the tabloid swamp, via this item at Fox & Hounds Daily.

Also, I feel I must offer one unrelated bit of political analysis to deepen public understanding of Miss Prejean's ballot initiative stance. While your blogger strongly disagrees with her on Prop 8, her position is quite understandable, geographically speaking. The media organizations covering this public controversy have overlooked the important fact that she is from the San Diego area, which has been the unofficial headquarters of the same-sex marriage opposition in the state. Churches there provided much of the institutional support for the Prop 8 campaign.

A Smarter Same Sex Marriage Strategy: Pressuring Your Friends

Joe Mathews — Tue, 14 Apr 2009 17:47:00 -0400

I just returned from a lunchtime press conference held by Cleve Jones, Rick Jacobs, union officials, and other leading supporters of overturning Prop 8 and legalizing same-sex marriage. The location of the press conference, however, seemed to puzzle some of the reporters in attendance: the sidewalk in front of a gay-friendly, union-friendly, new, Hyatt-affiliated hotel on the Sunset Strip.

But after listening to Jones and Jacobs, I think their strategy makes sense. Same-sex marriage advocates have gone after same-sex marriage opponents; the effect of those protests is in dispute, but some of those protests, as Jones acknowledged, have backfired. A more productive strategy -- one represented by this press conference -- is for same-sex marriage supporters to put pressure on their friends. The message: prominent people and businesses must speak out in support of marriage equality. One can't simply be gay friendly and remain silent in these times.

Thus, the press conference in front of the Andaz Hotel. The same-sex marriage supporters, who have been urging the Hyatt chain to sever ties with Doug Manchester, a major Prop 8 donor who operates the Manchester Grand Hyatt in San Diego, called on the Andaz to join them and speak out against the San Diego franchisee. Jacobs also made an appeal to Penny Pritzker, the top Obama fundraiser whose family owns the Hyatt chain, to speak out on the subject and isolate Manchester.

This approach -- asking business owners that believe in marriage equality to speak out and act upon their convictions -- is more likely to produce progress for same-sex marriage supporters than protesting at the homes and business of same-sex marriage opponents. The key advantage: it's easier to pressure people to do know what they already know is right than to shout at folks who don't agree with you. This is Coalition Building 101, and a sign that same-sex marriage supporters have learned lessons from Prop 8 and are on their way to repealing Prop 8 next year.

Exhaustion Makes Preacher More Gay Friendly

Joe Mathews — Mon, 13 Apr 2009 01:30:00 -0400

In Prop 8-land, people are buzzing about this: The Rev. Rick Warren, the evangelical Southern California pastor who gave the invocation at President Obama's inauguration, told Larry King last week that he didn't campaign for Prop 8, the California initiative ban on same-sex marriage. In fact, he did. In this Politico story, Warren's pr agents try to walk this one back by arguing that Warren was too tired from his Holy Week duties. Apparently, exhaustion makes one more favorable to same-sex marriage. Which suggests a strategy for the likely initiative battle to overturn Prop 8 in 2010: set off fog horns and shine bright lights in key precincts in the middle of the night.

On a more serious note, Warren's vacillation is as strong a sign as any which way the public is moving on this issue.