Prop 8, again

I watched the recording of the California Supreme Court's recent hearing on Prop 8, the state Constitutional amendment that outlawed same sex marriages. The legal issue this time is a question from the United States Ninth Circuit court asking if under California law the proponents of Prop 8 can defend the law in court since the governor and state attorney general said that Prop 8 was unconstitutional and refused to defend it. It was interesting to watch. The Prop 8 proponents argue that if they are unable to defend propositions the governor and attorney general can essentially nullify a law in federal court by refusing to defend it. I can see their point, and I think that the court will agree with them. But in my opinion the legal argument by Ted Olson, the anti-Prop 8 lawyer, was much better. The California Constitution specifically says that the people have legislative power through the initiative process to propose and pass laws, as happened with Prop 8, but there is no executive branch power to defend the law in court. That power is expressly given only to the governor and attorney general. Olson argued that giving that power to the proponents would violate the separation of powers in the Constitution. It will be interesting to see what the court decides. Ultimately, even if the court says that the proponents do have "standing" to defend the law under California law, that does not mean that the meet the federal standards to defend it in federal court. If they do not have standing, Prop 8 would be unconstitutional and marriage equality would return to California. That would be great, but I really want all Americans to have marriage equality. My best case scenario would be for this case to reach the US Supreme Court and have Prop 8 and all laws that forbid marriage equality declared unconstitutional. Then I might feel like a full citizen with all the rights that other Americans have.

a small step toward marriage equality?

By now everyone has heard about Prop 8 being declared unconstitutional by a federal district judge in San Francisco. That is great, but I have to wonder where this will end up. Will the Ninth Circuit Court, and later the Supreme Court, agree, or will one or the other overturn the decision? It all comes down to nine people in DC, their personal beliefs (and biases). I remember the huge disappointment in 1986 or '87 when the Supreme Court surprised the gay community and upheld rather than overturned Georgia's sodomy law. (I grew up and was living in Georgia at the time, so it hit me personally very hard.) And even if the law is ruled unconstitutional in the end, will it only affect California? Or will it be used to overturn anti-marriage equality laws and constitutional amendments in other states? I always get nervous thinking about this - having basic human rights of a minority up for a vote by the majority. I did donate money to the American Foundation for Equal Rights, the organization that brought the lawsuit. The trial also reminded me to always give people the chance to do the right thing. I did not like Ted Olson when he argued Bush versus Gore in the Supreme Court, or when he was Solicitor General in the Bush administration. But he did the right thing in this case. Even Republicans can do the right thing on occasion.

Leo is taking kenpo karate, and the Supreme Court

My husband David signed our son Leo up for a four lesson trial of kenpo karate earlier this month. Leo had expressed an interest in karate for a while, and he had attended two karate birthday parties at a local karate studio (is that the right term?). This type of karate came recommended to us by a close friend and by a therapist. So Leo had his four lessons, and after the third the teacher, Mr. Hobbs, met with David and me. He told us what David had already noticed, that Leo seemed to enjoy it and was able to focus and remember the moves - which is important with Leo's ADHD. The individual lesson format helps. So we signed him up for six months of weekly lessons, and he can attend as many group lessons as he wants, but it will likely be only one weekly. He got his gi, and is proud of it. It's black instead of white, but Mr. Hobbs explained that that is the traditional color in kenpo, since kenpo originates from a time of war in Japan. Mr. Hobbs spent time from the very first lesson going over when NOT to use karate. He also saw Leo slouching on the sofa in the studio while awaiting his lesson and asked "Is that how you sit on the sofa at home?" and told him how he should sit. David was there and didn't answer then but wanted to say "He doesn't sit on the sofa, he jumps on it or stands on it or runs across the room and takes a flying leap onto it."


The US Supreme Court handed down a surprising decision yesterday, and it wasn't the one ruling a law on handgun bans unconstitutional (guns seem to always be OK to Republicans). It was a decision about a Christian law student group at a California law school wanting student activity money without agreeing to the rules to get funding. The law school said that to be an officially recognized student group and get funding, all groups had to agree not to discriminate and accept all members who wanted to join. But the Christian law student group wanted the recognition and money but wanted to be able to exclude gays and lesbians. The law school said no, so the Christian law student group sued. The school won at trial and on appeal, but I really expected the Supreme Court to rule in favor of the student group. But the four liberal (or liberal for the US, which would be conservative in Canada and most of Europe) justices were joined by Anthony Kennedy, the swing judge, to rule that the school could make rules for student groups to get funding. Almost every decision on the court comes down to how Kennedy votes, including the handgun decision.


I wanted to welcome an new follower, Lightning Baltimore. I enjoyed your first post. I like to extend an invitation to introduce yourself and tell us about you, if you want.

Arkansas adoption law declared unconstitutional

Last week the adoption law in Arkansas that banned any unmarried person living with a partner from serving as an adoptive or foster parent was declared unconstitutional by a district judge. This didn't make the headlines either in the mainstream press or in the gay media, which was surprising to me. The suit was brought by the American Civil Liberties Union (of which I have been a proud member for many years) on behalf of a lesbian couple that couldn't adopt, a grandmother who couldn't adopt her own grandchildren when her child couldn't raise the children, and married heterosexual couples who would not have been able to have a relative or friend adopt their children if the couples were to die.

That's what the right wing bigots don't get - when you try to make a law discriminating against gays and lesbians you also drag in straight people like the grandmother and married couples. In my own family I have a cousin whose husband died while serving in the military. She lives on her military widow's pension, which she would lose if she remarries. So she's lived with a guy for the last 7 years or so. By this law she wouldn't be able to adopt her nieces or nephews. That's crazy.

This law was a response to an earlier law that banned only gays and lesbians from adopting that was declared unconstitutional by the Arkansas State Supreme Court a few years earlier. The judge rightly declared that the law was not "in the best interest of the child" as other laws require. The state of Arkansas is expected to appeal.

This is another example of the laws against gays and lesbians being declared unconstitutional. I hope that the two big challenges to marriage equality heading to the national Supreme Court continue this trend. Also perhaps the challenge to Don't Ask, Don't Tell will also be successful.


I also wanted to welcome a new follower, David. I don't know much about you, David, although you seem to like cats. If you want, you can introduce yourself and tell us about you. Don't feel any pressure though, it's up to you.

Supreme Court, gay rights and religion

Today the US Supreme Court heard arguments in a case about religious freedom and gay rights. A Christian law student group at the University of California Berkeley was denied official recognition as a campus organization because they would not admit gays and lesbians, based on the religious views of the organization.

The Christian law student group's argument was that the university can't dictate who they must admit to their group, because that infringes on their religious right to admit only that who follow their (narrow, right wing) beliefs on who is a Christian. I can kinda see that, but I think that the opposing argument is stronger.

The university argues that any group of people has the right to choose who to admit to their group. But to gain official recognition, and the funding that goes along with it, all groups have to agree not to discriminate based on sex, sexual orientation, race and a few other criteria. The religious law students refused to do that, but want the funding and official recognition.

Based on the press reports, the two female justices pointed out the obvious - if one group is allowed to discriminate based on sexual orientation, another group may want to discriminate based on sex or race, and asked if that should be allowed.

This court is quite conservative, and I think will come up with the wrong decision. They will probably require the university to recognize the Christian law group. There is a middle way though. The court could decide that the Christian law student group has the right to exist, but the university does not have to recognize them if they will not agree with the university's requirements for recognition.

This case is not directly about gay rights, but whether a group has to follow a university's requirements to treat sexual orientation discrimination in the same way that race or sex discrimination is treated.


This is totally unrelated, but I wanted to welcome a new follower, LetMeDieFirst. You have an interesting screen name and avatar. I don't see that you have a blog, so don't know anything about you. If you want you can post something introducing yourself and telling us about you, or not, whatever you want.