Our newest Christmas ornament, courtesy of my sister.
Santa Castro, save me !
Wednesday, December 24, 2008
Have a Gay Ol' Christmas
Our newest Christmas ornament, courtesy of my sister.
Santa Castro, save me !
Sunday, December 21, 2008
Understanding Jerry Brown
I'm not an attorney, nor am I an expert in constitutional law. Nevertheless, I'm going to take a stab at explaining California Attorney General Jerry Brown's Answer Brief in the Proposition 8 cases. The brief filed by Jerry Brown can be seen here, and was filed as the State of California's official response to the California Supreme Court's acceptance of multiple cases regarding the legality/constitutionality of Proposition 8.
The following is my understanding of the questions to be resolved in the Prop 8 cases:
1) Is Prop 8 a revision to the CA Constitution which should have gone through the Legislature or an amendment which was properly entered into via the initiative process? Depending on the answer, Prop 8 was either legally or illegally placed on the ballot.
2) Does Prop 8 violate separation of powers, specifically, has the court's power to judicially review legislation been unconstitutionally overridden by Prop 8?
3) If Prop 8 is constitutional, what is the status of the marriages that took place between June & November?
Summarizing 80 pages of legal arguments very briefly, J Brown notes:
A) In response to question 1, Prop 8 is not a revision to the CA Constitution, because Prop 8 was so narrowly focused on one issue.
B) In further response to question 1, Prop 8 is an amendment, therefore the election process was properly passed via the initiative process.
C) In response to question 2, Prop 8 does not violate the separation of powers, in that the court has previously allowed other amendments to override court decisions. One example of such an override was voter approved initiative amendment which re-authorized the death penalty in California, following the CA Supreme Court's tossing out of all death sentences as unconstitutional back in the 1970's.
D) In response to question 3, if Prop 8 is unconstitutional, marriages that took place prior to November should remain legal, because Prop 8 fails on the following points:
None of the above is really the important part of Jerry Brown's brief. Here's where it gets interesting.
Brown goes on to state that, as Attorney General, he finds that Prop 8 should be held invalid, but not for any of the reasons noted above. He finds that the CA Constitution has been interpreted to by the Supreme Court to hold marriage to be a fundamental right. Specifically, he addresses Article 1, Section 1 of the CA Constitution:
Brown makes a further argument that there are limits to the initiative process in that "...If the initiative process were to encompass the unlimited power to abrogate fundamental rights, article 1, section 1 would be stripped of all meaning." By this, if I'm understanding correctly, Brown is stating that a constitutional initiative amendment must pass muster in light of other provisions of the State constitution for that amendment to be considered valid.
Brown goes on to say: "The Court should give expression to the guarantees secured by article 1, section 1 by evaluation whether the proposed initiative-amendment sufficiently furthers the public health, safety or welfare. Mere majority support alone does not suffice." In other words: the state has to have a damned good reason to remove a right from a class of people (i.e. a "compelling interest"). More importantly, he's saying that a majority vote is not sufficient reason to remove a right.
Both quotes are from page 89 of the brief (which is page 105 of the linked file.)
Brown concludes with:
"The use of the initiative power to take a way a legal right deemed by this court to be fundamental and from a group defined by a suspect classification is a matter of grave concern. Existing precedents of this court do not support the invalidation of Proposition 8 either as a revision or as a violation of the separation of powers. However, Proposition 8 should be invalidated as violating the inalienable right of liberty found in article I, section 1 of our Constitution.
Alternatively, if the Court finds the initiative constitutional, it should be narrowly construed to uphold the marriages that took place prior to the enactment of the initiative." (from pages 91-92 of the brief, pages 107/108 in the link.)
In other words, Proposition 8 is, in Jerry Brown's opinion, a fatally flawed amendment that should be tossed out by the California Supreme Court. Failing that, the marriages that took place between June & November 2008 should remain legal.
If I'm following correctly, the logic above is built on Jerry Brown's belief that under the CA Constitution, marriage, like religion or speech, is an inalienable right. As such, it can't be limited without a compelling state interest.
It's that simple. It's not "creating" a right, it's clarifying the status of an existing right.
From the CA Constitution:
Under J. Brown's logic, Prop 8 (i.e. Section 7.5), also flat out contradicts the provisions of Secs. 3.2, 3.4 & 7(b). When these sections are considered in combination with Article 1, Section 1, it becomes obvious that Section 7.5 should be tossed.
What's really cool is that Jerry Brown is saying that, while the supporters of Prop 8 followed all the correct steps in placing Prop 8 on the ballot and that Prop 8 doesn't unconstitutionally restrict judicial review of laws, Prop 8 still sucks.
At least that's my humble opinion. The language is pretty straight forward: no denial of equal access/equal protection to any class of people within the state. Everything else flows from that. If the court agrees with Jerry Brown's logic, same sex marriages will once again be legal in California, starting right around the one year anniversary of the beginning of the first round of legal same sex marriages.
I leave it to the lawyers among us to pick apart my analysis.
The following is my understanding of the questions to be resolved in the Prop 8 cases:
1) Is Prop 8 a revision to the CA Constitution which should have gone through the Legislature or an amendment which was properly entered into via the initiative process? Depending on the answer, Prop 8 was either legally or illegally placed on the ballot.
2) Does Prop 8 violate separation of powers, specifically, has the court's power to judicially review legislation been unconstitutionally overridden by Prop 8?
3) If Prop 8 is constitutional, what is the status of the marriages that took place between June & November?
Summarizing 80 pages of legal arguments very briefly, J Brown notes:
A) In response to question 1, Prop 8 is not a revision to the CA Constitution, because Prop 8 was so narrowly focused on one issue.
B) In further response to question 1, Prop 8 is an amendment, therefore the election process was properly passed via the initiative process.
C) In response to question 2, Prop 8 does not violate the separation of powers, in that the court has previously allowed other amendments to override court decisions. One example of such an override was voter approved initiative amendment which re-authorized the death penalty in California, following the CA Supreme Court's tossing out of all death sentences as unconstitutional back in the 1970's.
D) In response to question 3, if Prop 8 is unconstitutional, marriages that took place prior to November should remain legal, because Prop 8 fails on the following points:
- Amendments are by precedent forward looking, with no effect on legal actions prior to the passage of the amendment--unless there is language making the amendment retroactive included in the amendment
- There was no clear retroactivity language included in Proposition 8
None of the above is really the important part of Jerry Brown's brief. Here's where it gets interesting.
Brown goes on to state that, as Attorney General, he finds that Prop 8 should be held invalid, but not for any of the reasons noted above. He finds that the CA Constitution has been interpreted to by the Supreme Court to hold marriage to be a fundamental right. Specifically, he addresses Article 1, Section 1 of the CA Constitution:
quote:Over the course of the latter portion of the Answer Brief, Jerry Brown defines marriage as a fundamental liberty right, one of the most basic rights enshrined in the California Constitution. If I'm understanding his argument correctly, Jerry Brown is making the point that while fundamental rights can be limited via judicial decision, legislation or constitutional amendment they can not be denied without a compelling state interest, especially in the case of a minority or suspect class. In legal parlance, a suspect class is one that must be treated carefully by the law, so that the law doesn't discriminate against that class of people. As part of the In re Marriage Cases decision, gays and lesbians were determined by the Supreme Court to be a suspect class, based on the historic animus and discrimination experienced by them.
ARTICLE 1 DECLARATION OF RIGHTS
SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
Brown makes a further argument that there are limits to the initiative process in that "...If the initiative process were to encompass the unlimited power to abrogate fundamental rights, article 1, section 1 would be stripped of all meaning." By this, if I'm understanding correctly, Brown is stating that a constitutional initiative amendment must pass muster in light of other provisions of the State constitution for that amendment to be considered valid.
Brown goes on to say: "The Court should give expression to the guarantees secured by article 1, section 1 by evaluation whether the proposed initiative-amendment sufficiently furthers the public health, safety or welfare. Mere majority support alone does not suffice." In other words: the state has to have a damned good reason to remove a right from a class of people (i.e. a "compelling interest"). More importantly, he's saying that a majority vote is not sufficient reason to remove a right.
Both quotes are from page 89 of the brief (which is page 105 of the linked file.)
Brown concludes with:
"The use of the initiative power to take a way a legal right deemed by this court to be fundamental and from a group defined by a suspect classification is a matter of grave concern. Existing precedents of this court do not support the invalidation of Proposition 8 either as a revision or as a violation of the separation of powers. However, Proposition 8 should be invalidated as violating the inalienable right of liberty found in article I, section 1 of our Constitution.
Alternatively, if the Court finds the initiative constitutional, it should be narrowly construed to uphold the marriages that took place prior to the enactment of the initiative." (from pages 91-92 of the brief, pages 107/108 in the link.)
In other words, Proposition 8 is, in Jerry Brown's opinion, a fatally flawed amendment that should be tossed out by the California Supreme Court. Failing that, the marriages that took place between June & November 2008 should remain legal.
If I'm following correctly, the logic above is built on Jerry Brown's belief that under the CA Constitution, marriage, like religion or speech, is an inalienable right. As such, it can't be limited without a compelling state interest.
It's that simple. It's not "creating" a right, it's clarifying the status of an existing right.
From the CA Constitution:
quote:That's how the relevant section of the CA Constitution read prior to the passage of Proposition 8. Remember, Jerry Brown is speaking to the fundamental right to marry as being enshrined in the CA Constitution. Section 7 is the section that was amended by Prop. 8, as follows:
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SECT. 7 (b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.
quote:There is no Section 7.1/2/3 or 4. Section 7(a) speaks primarily to how the school system is to be run in a non-discriminatory way. Read 7(b) again, and you'll see that 7.5 is in direct contradiction to it--because it separates marriage from the provisions of section 7(b). Setting aside Section 7.5 for the moment, Jerry Brown asks the court to consider the following:
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.
quote:California's Constitution Secs. 3.2 & 3.4 call for broadly interpreted equal protection/access to all legal institutions for all residents; which is in turn specifically called out as being equally applicable to all classes of people. Section 3.3 is relevant in that it's one of the sections of the Constitution that allows for private, consensual relationships between same-sex couples. These Sections, in combination with Section 7(b), direct that the State must show an "Interest" if either the addition or removal of equal protection/equal access is to be allowed. The State's "Interest" in adding equal access has been demonstrated by the Legislative and the Executive branches, by the passage of various pieces of DPR legislation over the last several years, which expanded most of the significant rights found in marriage to same-sex couples. Thus, all of the constitutional underpinnings for the In re Marriage Cases decision already existed prior to the passage of Prop 22. They weren't created out of whole cloth. The Court, as a result, held that Proposition 22, by separating Domestic Partnerships and Marriages in to two separate entities, violated Section 7 and failed sections 3.2 & 3.4.
SEC 3.
(2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other Authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the Interest protected by the limitation and the need for protecting that interest.
(3) Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule, or other authority to the extent that it protects that right to privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer.
(4) Nothing in this subdivision supersedes or modifies any provision of this Constitution, including the guarantees that a person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws, as provided in Section 7.
Under J. Brown's logic, Prop 8 (i.e. Section 7.5), also flat out contradicts the provisions of Secs. 3.2, 3.4 & 7(b). When these sections are considered in combination with Article 1, Section 1, it becomes obvious that Section 7.5 should be tossed.
What's really cool is that Jerry Brown is saying that, while the supporters of Prop 8 followed all the correct steps in placing Prop 8 on the ballot and that Prop 8 doesn't unconstitutionally restrict judicial review of laws, Prop 8 still sucks.
At least that's my humble opinion. The language is pretty straight forward: no denial of equal access/equal protection to any class of people within the state. Everything else flows from that. If the court agrees with Jerry Brown's logic, same sex marriages will once again be legal in California, starting right around the one year anniversary of the beginning of the first round of legal same sex marriages.
I leave it to the lawyers among us to pick apart my analysis.
Tuesday, December 16, 2008
Christmas came early this year
Christmas is eight days away, where the heck did the month go? I've only done a few bits of shopping, and I don't know when I'll be able to finish. I'm pretty much done, though, so I'm not too worried. I haven't sent a single Christmas card, even though I still have the unopened boxes of cards I bought last year. I love you all, but I'm damn tired right now.
I've got a few things on my wish list, but they're not likely to happen, seeing as they include adding 800 sf to the house, getting a new car, and taking a 17-day Mediterranean cruise. I'd love a GPS for the MINI, and another trip to Ireland, this time with a chance to just wander around. One of those might happen, the rest is on the "when I win the lotto" list.
It's going to be a laid-back Christmas. Funds aren't too tight, but we just spent a good sum on the wedding. So we're doing a couple of biggish presents each, but we're not going all out, not like we have in past years. So no three hour marathon present opening session. The tree isn't even up yet, which must happen this weekend. Hopefully it won't be raining, and I'll even be able to put up lights.
I'm finding that presents aren't too important this year, really. The family presents are sorted, but I've had more fun and taken more meaning from helping others. I took my budget for work-related presents and spent it on Toys for Tots via the MINI Cooper club I'm most active in; I've upped my contribution to the work related charity this year, too. My co-workers have adopted two families that need help to have a nice holiday. One of them is a military family, the other is just a young family struggling to get by. I'm feeling fortunate that I've got a good, steady job. Christmas came a couple of months early this year: getting married was eleventy-seven Christmases all wrapped up into one. With sugar plum fairies and eight lords a leaping.
I've got a few things on my wish list, but they're not likely to happen, seeing as they include adding 800 sf to the house, getting a new car, and taking a 17-day Mediterranean cruise. I'd love a GPS for the MINI, and another trip to Ireland, this time with a chance to just wander around. One of those might happen, the rest is on the "when I win the lotto" list.
It's going to be a laid-back Christmas. Funds aren't too tight, but we just spent a good sum on the wedding. So we're doing a couple of biggish presents each, but we're not going all out, not like we have in past years. So no three hour marathon present opening session. The tree isn't even up yet, which must happen this weekend. Hopefully it won't be raining, and I'll even be able to put up lights.
I'm finding that presents aren't too important this year, really. The family presents are sorted, but I've had more fun and taken more meaning from helping others. I took my budget for work-related presents and spent it on Toys for Tots via the MINI Cooper club I'm most active in; I've upped my contribution to the work related charity this year, too. My co-workers have adopted two families that need help to have a nice holiday. One of them is a military family, the other is just a young family struggling to get by. I'm feeling fortunate that I've got a good, steady job. Christmas came a couple of months early this year: getting married was eleventy-seven Christmases all wrapped up into one. With sugar plum fairies and eight lords a leaping.
Tuesday, December 9, 2008
A few of my favorite things
No, I'm not a Julie Andrews freak. I mean, I'd probably lose my mind if I met her, but I'm not a total freak. There have been a few things I've fallen for at first site. This pic includes the two I've fallen hardest for. MINIs & my husband (not necessarily in that order).
Taken on our wedding day. That's my sister's MINI. Her husband bought it for her for her birthday a couple of years ago. Nice husband, but her MINI isn't as nice as mine. Even if she feels the same way about hers that I do about mine.
MINIs have taken me to Tennessee:
Vegas:
Ireland:
Twice:
Even over to England for a curry:
But the best place a MINI ever took me:
When I reflect on it, was to my wedding:
It brought new light into my life:
It made me weepy:
It made me want to dance:
Stop and smell the flowers:
Most of all, the best MINI ride I ever took, made me want to stay with Steve until I'm old and gray:
Taken on our wedding day. That's my sister's MINI. Her husband bought it for her for her birthday a couple of years ago. Nice husband, but her MINI isn't as nice as mine. Even if she feels the same way about hers that I do about mine.
MINIs have taken me to Tennessee:
Vegas:
Ireland:
Twice:
Even over to England for a curry:
But the best place a MINI ever took me:
When I reflect on it, was to my wedding:
It brought new light into my life:
It made me weepy:
It made me want to dance:
Stop and smell the flowers:
Most of all, the best MINI ride I ever took, made me want to stay with Steve until I'm old and gray:
Saturday, December 6, 2008
Finding common ground
I've spent a lot of time listening to the gloom and doom predictions from the other "side" of the gay rights divide, which has pretty much given me a thick skin. It's also enabled me to pick moments to call people on their bullshit. Every time there has been an advance in the gay rights movement, the world was supposed to end. Thirty years ago, Anita Bryant said that homosexuals are coming after the children, they're recruiting in the schools and parks, because they can't reproduce.
This in the face of the simple fact that every last gay & lesbian person on earth is the product of some type of heterosexual intercourse, whether it's from loving parents or a petri dish. Denying that basic truth is the essence of bullshit.
Gays and lesbians are a part of the fabric of this country. We are teachers and firefighters, accountants and lighting technicians. The country didn't end and the sky didn't fall when Proposition 6 failed to pass all these years ago, however much it may have chagrined poor John Briggs. We're thirty years on, and we need to learn from the past. The reason the sky didn't fall was because the rights of all Californians were protected. We, as a state, decided that enough was enough. That "...all men are created equal" meant just that: we couldn't and shouldn't prevent people from exercising their rights, nor should we take away their jobs for living the truth of their lives.
I say this because I'm not wholly optimistic about the chances of Prop 8 being thrown out by the California Supreme Court.
The surest way to radicalize a group is to dangle a right in front of them, only to snatch it away with an attitude of "maybe, if you're good, we won't take any more." That's where I think the opponents of same sex marriage have made a mistake. Increasingly, the campaign to take marriage rights away from gay people is being seen as misguided--if only because of the reaction by gays and lesbians, who are asking themselves "What's next?" The propositions that passed in Florida and Arizona answer that question in a way that ought to frighten us all. One step to the right (or across a state line) and all those hard-won battles are off the table: no marriage rights, no domestic partnership rights, no civil unions and, in some states, no employment rights.
Which is why we need to engage the middle, that mass of people in the center who may not really care about our issues. Because, fundamentally, their issues are our issues: the freedom to create a family, to hold a job, to vote, to be secure in our homes and our cities, to worship as we choose. In return, we ask that our government step in when necessary to promote and protect those freedoms and otherwise get out the way. In January 1941, less than a month after Pearl Harbor was bombed, Franklin Roosevelt defined the Four Freedoms that are essential for our society to thrive: freedom of speech and expression; freedom of worship; freedom from want and freedom from fear. That's all we ask as citizens, whether we're gay or straight. All of us need to wake up and remember those simple facts.
In that January speech, as he began defining the Four Freedoms, our President had these remarkably apt and prescient words to say:
"...For there is nothing mysterious about the foundations of a healthy and strong democracy.
The basic things expected by our people of their political and economic systems are simple. They are:
Equality of opportunity for youth and for others.
Jobs for those that can work.
Security for those who need it.
The ending of special privilege for the few.
The preservation of civil liberties for all."
Think about these words, and let the people around you know that FDR was was right: taking away basic rights diminishes all of our freedoms. Engage the left, the middle, the right. Talk to your neighbors, your co-workers, your friends. Take the Bill of Rights out of your back pocket and read it. Share what it means to you, discuss how Proposition 8 flies in the face of the equity and fairness inherent in our Constitution. One by one, we can create a radical middle that believes in the inherent equality of all, that works to ensure that no one's rights are taken away on the whim of a bare majority or of the privileged few.
This in the face of the simple fact that every last gay & lesbian person on earth is the product of some type of heterosexual intercourse, whether it's from loving parents or a petri dish. Denying that basic truth is the essence of bullshit.
Gays and lesbians are a part of the fabric of this country. We are teachers and firefighters, accountants and lighting technicians. The country didn't end and the sky didn't fall when Proposition 6 failed to pass all these years ago, however much it may have chagrined poor John Briggs. We're thirty years on, and we need to learn from the past. The reason the sky didn't fall was because the rights of all Californians were protected. We, as a state, decided that enough was enough. That "...all men are created equal" meant just that: we couldn't and shouldn't prevent people from exercising their rights, nor should we take away their jobs for living the truth of their lives.
I say this because I'm not wholly optimistic about the chances of Prop 8 being thrown out by the California Supreme Court.
The surest way to radicalize a group is to dangle a right in front of them, only to snatch it away with an attitude of "maybe, if you're good, we won't take any more." That's where I think the opponents of same sex marriage have made a mistake. Increasingly, the campaign to take marriage rights away from gay people is being seen as misguided--if only because of the reaction by gays and lesbians, who are asking themselves "What's next?" The propositions that passed in Florida and Arizona answer that question in a way that ought to frighten us all. One step to the right (or across a state line) and all those hard-won battles are off the table: no marriage rights, no domestic partnership rights, no civil unions and, in some states, no employment rights.
Which is why we need to engage the middle, that mass of people in the center who may not really care about our issues. Because, fundamentally, their issues are our issues: the freedom to create a family, to hold a job, to vote, to be secure in our homes and our cities, to worship as we choose. In return, we ask that our government step in when necessary to promote and protect those freedoms and otherwise get out the way. In January 1941, less than a month after Pearl Harbor was bombed, Franklin Roosevelt defined the Four Freedoms that are essential for our society to thrive: freedom of speech and expression; freedom of worship; freedom from want and freedom from fear. That's all we ask as citizens, whether we're gay or straight. All of us need to wake up and remember those simple facts.
In that January speech, as he began defining the Four Freedoms, our President had these remarkably apt and prescient words to say:
"...For there is nothing mysterious about the foundations of a healthy and strong democracy.
The basic things expected by our people of their political and economic systems are simple. They are:
Equality of opportunity for youth and for others.
Jobs for those that can work.
Security for those who need it.
The ending of special privilege for the few.
The preservation of civil liberties for all."
Think about these words, and let the people around you know that FDR was was right: taking away basic rights diminishes all of our freedoms. Engage the left, the middle, the right. Talk to your neighbors, your co-workers, your friends. Take the Bill of Rights out of your back pocket and read it. Share what it means to you, discuss how Proposition 8 flies in the face of the equity and fairness inherent in our Constitution. One by one, we can create a radical middle that believes in the inherent equality of all, that works to ensure that no one's rights are taken away on the whim of a bare majority or of the privileged few.
Thursday, December 4, 2008
Welcome to the world
Keely Margaret, 12/03/08.She's Molly's younger sister.
Congrats, Ray & Tracy. I think she's a keeper.
Wednesday, December 3, 2008
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