NYT: Courts Should Not Wait to Protect Fundamental Rights

Can you imagine the out cry if the rights of Christians, Jews, immigrants from  specific countries, blacks and other minorities were suddenly put up for a public vote or a Supreme Court justice said that in protecting the rights of such groups the Court should take a "go slow" approach?  Yet this is precisely what is done to LGBT Americans over and over again and even one of the Supreme Courts :liberal justices" suggested that the Court might be wise to go slow on extending gay marriage rights.  It's, of course, easy for someone not subjected to legalized bigotry and discrimination to take such a view.   What's shocking, however, is that the liberal justice is Ruth Bader Ginsberg who is Jewish.  One would think that Ginsberg of all people would grasp the wrongheadedness of allowing the majority to decide what rights a minority will be allowed to have.  The New York Times blasts this "go slow" approach in a main editorial  Here are excerpts:

With two same-sex marriage cases before the Supreme Court, numerous commentators have latched on to remarks by Justice Ruth Bader Ginsburg critical of the court’s 1973 Roe v. Wade decision that legalized abortion nationwide. It is not the judgment that was wrong, but “it moved too far, too fast,” she said at Columbia Law School last year, a view she has expressed in various speeches and law review articles. As one of the court’s moderate liberals and a champion of women’s rights, she is now being routinely cited to argue for a timid resolution on the issue of same-sex marriage that would strike down California’s ban on such marriages, but would leave prohibitions standing in about 40 other states.

How Justice Ginsburg will vote on same-sex marriage is unknown. But her comments misread the legal and political landscape at the time of the Roe decision and have been used to bolster the inaccurate notion that the court’s ruling on abortion rights somehow short-circuited a political process that was moving in the states to end criminalization of abortion.  

The real story, as explained by Linda Greenhouse, a former New York Times reporter who now teaches at Yale Law School, and Reva Siegel, a professor there, is that political conflict over abortion was escalating before the Roe decision, and that state progress on decriminalization had reached a standstill in the face of opposition from the Roman Catholic Church.

Had the Supreme Court waited for the states to move, women in a large portion of the country would still be denied the fundamental right to make their own childbearing decisions. 

The claim that the court invited a backlash by getting too far ahead of public opinion does not hold. At the time of the ruling, a Gallup poll showed a substantial majority of Americans favored letting the abortion decision be made “solely by a woman and her physician,” with more Republicans than Democrats in favor.

There is bound to be conflict and opposition when minorities pursue their rights, whether legislatively, in the voting booth or in the courts. But fear of an angry reaction from some groups cannot be the reason to deny people basic rights. As for Roe v. Wade, Ms. Greenhouse and Ms. Siegel persuasively conclude that the political polarization around abortion owes more to political realignment and the vehemence and perseverance of abortion opponents than general public anger at the court’s ruling, which was grounded in a constitutional right to privacy that flowed naturally from a line of previous decisions.  .  .  .  . The so-called backlash was a political creation that was cultivated and nourished. 

This may seem like ancient history. But there is a danger now that overblown fears of a backlash based on a false reading of politics before and after Roe v. Wade could lead the Supreme Court to shy from doing as it should — enforcing equal protection by declaring same-sex marriage a constitutionally protected right in every state.

I for one am tired of having my rights subject to the approval of a bigoted  minority of Christofascists who through lies and untruths dupe a majority into enshrining Christofascist beliefs into the civil laws.  If my rights are to be subjected to such votes, lets apply the same rule to every minority and let the shrieks and screaming begin.  Otherwise, the Times is right, the Court needs to strike down all state bans on gay marriage.

Gay Marriage Foes Want Prop 8 Trial Videos Kept from Public

In a story that came out last week - which dove tails nicely with the last post that demonstrates the toxicity of conservatism in general and Christianist behavior in particular - the proponents of Proposition 8 want Judge Walker to surrender video tapes made during the District Court trial. in Perry v. Schwarzenegger. Why? Because the tapes, if ever released, will show the less than pretty face of the anti-gay bigots and likely underscore the anti-gay animus that is the real motivation behind Proposition 8. Indeed, the entire rationale for Prop. 8 in my view has nothing to do with "protecting marriage" and everything to do with keeping LGBT citizens oppressed and marginalized as punishment for our failure to embrace the religious views of the Christofascists of the Mormon Church, Catholic Church, Southern Baptist Convention and similar gay-hating denominations. "Protecting marriage" is merely the smoke screen for what really motivates the Prop 8 supporters: hate, religious based bigotry, and a contempt for the religious freedom of others. In my view, the tapes need to be made public so that everyone can see the palpable hate and intolerance that defines the anti-marriage equality forces. Here are highlights from The Advocate:
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Proponents of Proposition 8 want retired judge Vaughn Walker to surrender videotapes of the federal trial in which he invalidated the anti–marriage equality California ballot initiative.
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Prop. 8 supporters are asking the ninth circuit court of appeals to make Walker give up the tapes of the Perry v. Schwarzenegger trial. The dispute arose after Walker gave a speech at the University of Arizona in February and showed a snippet of the 2010 trial, which was not televised.
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"The [pro-Prop. 8] lawyers say that violated a U.S. Supreme Court order and assurances from Walker.
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As always, when the lips of far right "godly Christians" and their spokesman are moving, it's a safe bet that they are lying.

NOM Whines About SPLC Designations

While not itself as yet a registered anti-gay hate group, the folks at the National Organization for Marriage ("NOM") are acting like they have piss in their Cheerios over the SPLC designation of some of NOM's favorite gay hating allies as hate groups. NOM tries to brush off the designations as a "distraction" but in truth, they are a clear signal to NOM that if it persists in disseminating deliberate lies and untruths about LGBT citizens, it too could gain the designation. For the Christianists, nothing is more bothersome than the expectation that they comply with the Commandment against lying and bearing false witness. Indeed, based on Christianist behavior, one would think this particular Commandment did not exist. Maggie Gallagher/Brian Brown even goes so far as to say they're proud of NOM's message - a message of intolerance and the infusion of religion into the civil laws which allegedly are not supposed to establish a particular religious dogma as the official religious belief for the nation. As regular readers know, I place the self-enriching Brian Brown and Ms. Gallagher's level of integrity below that of the most tawdry whore. If they truly believed in their cause, they would not be paying themselves big salaries and shacking down the ignorant for money. Here's some of NOM's bleating over the SPLC designations:
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The Southern Poverty Law Center (SLPC) today included NOM among “18 Anti-Gay Groups and Their Propaganda.” Brian Brown, President of the National Organization for Marriage, reacts: “This is an absurd distraction emanating from a once-great organization’s real mission---with all the actual hate groups out there, how can Southern Poverty Law Center stoop so low?” said Brown.
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“This report is not an attack on NOM but on the majority of Americans who believe that to make a marriage you need a husband and wife," said Brown. "It is also further proof of what NOM has been saying: today’s gay marriage movement is no longer about tolerance, live or let live—it’s about driving out dissenting voices from the public square.
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Our battle is not with an orientation but a political movement that seeks to use the law to embed a new moral idea: there is no difference between same-sex and opposite sex couples and you’re a hater, bigot and quasi-racist if you disagree. . . . For gay marriage advocates (the majority of whom are not gay) we say: we think you are wrong, and we will fight for our right to vote for marriage in the public square,” added Brown.

Costa Rican court: Legislators, Not Voters, Can Decide on Gay Marriage

While still lagging far behind other parts of Latin America such as Argentina and Mexico City in terms of gay equality under the civil laws, Costa Rica's Supreme Court has grasp a concept still lost by the majority of courts in the USA: the rights of a minority are not to be put up to a vote where the prejudices and bigotry of the majority may block or strip minorities of civil rights. This development arose out of an effort to place a referendum on the national ballot that would bar same sex marriage. The Costa Rica Supreme Court struck down the effort and said it was unconstitutional. Are you folks in Maine and elsewhere listening? The Advocate has coverage on the court decision as does the U.S. Catholic which not surprisingly notes that the Roman Catholic Church has its panties in a knot over the issue. First these highlights from The Advocate:
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The top court in Costa Rica on Tuesday ruled against a proposed referendum that would have asked voters to decide if the country should recognize same-sex civil unions, the Associated Press reports.
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In a 5-2 vote, the constitutional court said that a referendum planned for December would put a minority group—gay people—at a disadvantage. It also ruled that civil unions are a legislative issue, not an electoral one.
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These additional details come from US Catholic:
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The majority (of the court) considers that the rights of minorities cannot be subject to a referendum process where the majority decide," the judges said. "The court believes that persons in a same-sex marriage belong to a disadvantaged group and are the object of discrimination, which requires the help of the public powers to recognize their constitutional rights."
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Judges also noted that a negative vote by the electorate would violate international treaties, as Costa Rica would be seen as acting counter to basic human rights. Under Costa Rican law, international treaties supersede the country's constitution.
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Costa Rica is following a trend in Latin America to move toward the recognition of same-sex marriages. Such marriages have been legal in Argentina since July, and, much to the dismay of church officials, the Mexican Supreme Court issued a ruling in favor of the constitutionality of same-sex marriage in Mexico City.
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The Catholic Church in Costa Rica has responded to the decision by saying that it does not resolve the issue going forward and that the church will continue to stand in opposition of gay unions because they don't coincide with the word of God.

U.S. Supreme Court in 1967 - The Will of the Majority is Not Sacrosanct

One of the arguments that the whining Christianists such as Maggie Gallagher are using to condemn Judge Walker's ruling striking down proposition 8 is that it overturns the will of the majority. Taken literally and to its logical conclusion, this argument would allow a majority of voters to strip away the rights of any minority group it chose to target. In making this argument - as I have noted before is all too typical - the anti-gay forces are ignoring an inconvenient piece of history. In this instance it is the decision of the U. S. Supreme Court in Reitman v. Mulkey, 387 U.S. 369 (1967), which likewise arose from a California constitutional amendment that would have allowed property owners to refuse to rent or sell property to blacks. Here's the historical background from the case:
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The California Legislature, during the period 1959-1963, enacted several statutes regulating racial discrimination in housing. In 1964, pursuant to an initiative and referendum, Art. I, § 26, was added to the state constitution. It provided in part that neither the State nor any agency thereof "shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses."
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The California Supreme Court held that Art. I, § 26, was designed to overturn state laws that bore on the right of private persons to discriminate, that it invalidly involved the State in racial discrimination in the housing market, and that it changed the situation from one in which discriminatory practices were restricted to one where they are "encouraged," within the meaning of this Court's decisions. The court concluded that Art. I, § 26, unconstitutionally involves the State in racial discrimination, and is therefore invalid under the Equal Protection Clause of the Fourteenth Amendment.

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Confronted with this set of facts - which certainly can be compared to the goals of Proposition 8 in terms of encouraging discrimination against gays and lesbians - the U.S. Supreme Court held in part as follows:
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Second, it [the California Supreme Court] held the intent of § 26 was to authorize private racial discriminations in the housing market, to repeal the Unruh and Rumford Acts, and to create a constitutional right to discriminate on racial grounds in the sale and leasing of real property. Hence, the court dealt with § 26 as though it expressly authorized and constitutionalized the private right to discriminate. Third, the court assessed the ultimate impact of § 26 in the California environment, and concluded that the section would encourage and significantly involve the State in private racial discrimination contrary to the Fourteenth Amendment.
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The right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State's basic charter, immune from legislative, executive, or judicial regulation at any level of the state government. Those practicing racial discriminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from censure or interference of any kind from official sources.
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Here, the California court, armed as it was with the knowledge of the facts and circumstances concerning the passage and potential impact of § 26, and familiar with the milieu in which that provision would operate, has determined that the provision would involve the State in private racial discriminations to an unconstitutional degree. We accept this holding of the California court.
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the section [Sec. 26] will significantly encourage and involve the State in private discriminations. We have been presented with no persuasive considerations indicating that these judgments should be overturned.
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Reitman when combined with the case law and facts cited by Judge Walker makes a strong case that the will of the majority does NOT trump the federal constitution. For the U. S. Supreme Court to reverse Judge Walker's ruling in Perry v. Schwarzenegger would also require the Court to get around the clear ruling that discrimination cannot be made legal via an initiative derived amendment to a state constitution. Stated another way, the majority cannot strip away federal constitutional rights via state constitution amendments.

Justice Scalia Would Vote for Slavery and Segregation?

It's one thing to be a conservative - it's something wholly different to be a racist, sexist and anti-gay bigot who seeks to inject religion into the civil laws. Yet Supreme Court Justice Antonin Scalia clearly falls into the latter category based on his recent comments. I am truly wondering whether or not he is suffering from Alzheimer's or some similar malady that he would publicly utter such bigoted views. Perhaps he feels emboldened by today's utterly lunatic GOP. According to Scalia, the U.S. Constitution provides no basis for evolution as knowledge and society progress. Instead, the Constitution - or so he says - is locked in the mindset/level of knowledge of the drafters of the Constitution. I wonder how Scalia would like it if his Italian forebears had been treated with such legal bigotry based on their immigrant status and Catholic faith? Scalia clearly sees some citizens as having more value/rights than others and sees himself as an arbiter of who falls into which category. The man is a menace. Here are some highlights from comments made by Scalia during an appearance at the University of Arizona College of Law via the East Valley Tribune:

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One of the most conservative justices on the U.S. Supreme Court said Monday his more liberal colleagues are trying to manufacture new constitutional rights that were never intended by the drafters. “The fight is about the Supreme Court inventing new rights nobody ever thought existed,” Justice Antonin Scalia said in an appearance at the University of Arizona College of Law.

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“Right to abortion?” he asked. “Come on. Nobody thought it violated anything in the Constitution for 200 years. It was criminal.” The same, said Scalia, is true of homosexual sodomy. Yet the nation’s high court has struck down state laws banning both. “They may be bad ideas,” Scalia said. “But don’t tell me it’s unconstitutional.”

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Scalia said those who do not share his “originalist” philosophy are now deciding what the 14th Amendment of the Constitution means, the one that guarantees “equal protection of the laws” to all citizens. “Does it include same-sex marriage? A requirement for equal pay for equal work?” he mused. Scalia said those who believe in an “evolutionary” approach “close your eyes and decide what you think is a good idea.” Scalia said the problem with that approach is that it is designed to produce a result that some might like better.

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He said there is a remedy for those who want different or broader rights: Go to the Legislature. He said those bodies are free to decide whether abortion or homosexual activities should be legal.

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In sum, according to Scalia, the majority gets to decide what rights, if any, minority groups will be allowed to have. Using this approach, there might still be segregation in the South, women denied the right to vote, child labor and any number of horrors that the federal Courts have helped to push onto the trash heap of history. The further irony, of course, is that the framers were actually radicals/liberals in their day and age and favored intellect over superstition. Indeed, under the Constitution as originally signed, the framers did not trust the populace to directly elect Senators (the state legislatures selected each state's U.S. Senators) or the President - hence the Electoral College.

Why Court Action is Needed to Protect Gay Minority

Looking back over America's history it has often been the Courts who have been the first to uphold the legal equality of minority groups. Obviously, Brown v. Board of Education decide in 1954 is a prominent example of that phenomenon as is Loving v. Virginia in 1968, or even Lawrence v. Texas in 2003. The sad truth is that the majority of citizens have historically demonstrated a very poor track record of treating members of minorities as full, equal citizens. Eventually, the majority has followed the reasoning of the Courts, but often many years after the fact. The quest for gay rights and marriage is but another incarnation of this process which is well stated in a recent letter to the editor by Dane Youngblom of Duluth, Minnesota, that I came across via one of my google alert engines. Here are some highlights:

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A majority of folks are born straight. Most of us also realize there is a minority of folks born gay. It saddened me to read the Dec. 3 letter, “Don’t let the courts decide gay marriage issue,” which seemed to be an attempt to rally the straight majority to hurry up and prohibit the right of the gay minority to marry. The idea of the letter seemed to be to act before the courts have a chance to rule on the constitutionality of denying rights to this group of citizens.

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The writer seemed afraid the courts could rule that the issue is one of civil rights and as such cannot and should not be decided based on its popularity with the majority. The writer was probably correct in seeing that our courts do have a tendency to protect the minority from the majority in cases of oppression. The courts made this clear by outlawing segregation and racial, sexual and age discrimination, which were all favored by the voting majority at the time.

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Someday, we will be embarrassed by efforts we’ve made to classify any people as second class. Until then, we will have to rely on our courts to rule on the rights our founders wrote into the constitution, that the majority would not trample on the rights of the minority. We are not a democracy where majority rules, but rather a representative republic where we choose responsible, knowledgeable leaders to protect us from ignorant impulses.

Gay Marriage Backers Seek to Remove Marriage Ban from California Ballot

In an interesting story in the San Francisco Chronicle, gay rights supporters are seeking to remove the gay marriage ban initiative from the November ballot arguing that the ban's consequences are such that a mere initiative is not in compliance with the existing requirements fro amending the California constitution. The basic argument seems to have some merit. It seems unconscionable that a simple majority vote can be used to wipe away the rights on any minority group that may be unpopular from time to time. It sounds like a therory that Hitler would have loved. If this initiative goes forward EVERY minority group in California is at risk. I would also add that from my reading of legal briefs filed in many of the major gay rights cases, the pro-gay attorneys generally out class the wingnut attorneys every time. I'd even go so far as to say that in Lawrence v. Texas, the amicus briefs filed by the gay haters were not only of very poor quality, but they probably went some distance in convincing the majority of the justices that the anti-gay element were down right nut cases. Some of the briefs were so bad that I'd have been embarrassed to sign my name to them. Religious fanaticism does not equate with legal competence as an attorney - it seems to usually trend in exactly the opposite direction. Here are some story highlights"

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SAN FRANCISCO -- Gay-rights advocates asked the California Supreme Court on Friday to remove a proposed state constitutional ban on same-sex marriage from the November ballot, saying it would destroy fundamental rights that cannot be legally altered by a voter initiative.

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In papers filed four days after the legalized same-sex weddings began around the state, advocacy groups argued that the measure would change the state's Constitution so profoundly that it would amount to a revision. Under the law, the Constitution cannot be revised by initiative alone - a two-thirds legislative approval is also needed before the measure goes to the voters. "If enacted, (the November initiative) would eviscerate the principle of equal citizenship for gay and lesbian people and strip the courts of their authority to enforce basic constitutional guarantees," said Stephen Bomse, lawyer for the groups. He said the measure would "destabilize our Constitution and our basic government plan ... by establishing that any group may be deprived of equal protection and fundamental rights through a simple majority vote."

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Backers of the measure quickly denounced the suit. "Equality California and its allies are desperate to evade democracy," said attorney Glen Lavy of the Alliance Defense Fund, which represented the Proposition 22 Legal Defense and Education Fund. Prop. 22 was the 2000 ballot measure, approved by 61 percent of the voters, that declared same-sex marriages illegal, reaffirming a statute passed by the Legislature in 1977.