Kicking A Lion

…hear us roar

Posts Tagged ‘court

Iowa’s gay-marriage ban goes before high court

The state Supreme Court will hear arguments next month about whether the Defense of Marriage Act – briefly struck down last year – is unconstitutional.
By P.J. Huffstutter
Reporting from Fort Wayne, Ind. — The national fight over same-sex marriage is coming to a peak in Iowa, where the state’s highest court will hear arguments early next month over whether the state’s ban on gay unions is unconstitutional.

The debate over the future of Iowa’s Defense of Marriage Act, a decade-old law that defines marriage as being between a man and a woman, comes after a controversial ruling by a lower court judge last year.

Iowa District Court for Polk County Judge Robert Hanson ruled in August 2007 that the act violated the state constitutional rights of equal protection and due process. The ruling stood for less than 24 hours, before a Polk County attorney filed an appeal to the Iowa Supreme Court.

But in the nearly nine business hours that same-sex marriage was legal in the Hawkeye State, dozens of couples applied for licenses. Only one couple — a pair of Iowa State University undergraduates — was able to move fast enough to obtain a license and rush through a ceremony before the stay was enacted.

Now, both national advocates and opponents of same-sex marriage say they will closely monitor the Dec. 9 hearing in Des Moines. Both sides say they wonder whether the recent passage of Proposition 8 in California, which banned gay marriage, will influence the outcome in Iowa, and whether the issue of same-sex unions will return to the forefront as state legislatures return to session early next year.

More than half of the country’s states have a law that defines marriage as a union between one man and one woman, according to research by the National Conference of State Legislatures.

And after the Connecticut Supreme Court invalidated that state’s ban on same-sex marriages last month, there are now two states — including Massachusetts — where marriage licenses can be legally issued to gay couples.

California used to be in that category: In May, the state Supreme Court overturned the state’s gay marriage ban. But after California voters passed Proposition 8 this month, same-sex marriage was banned once again and the fate of thousands of same-sex unions was thrown into doubt.

Last week, California’s highest court agreed to review legal challenges to the proposition.

Given that two state Supreme Courts are likely to weigh in on the subject next year, and that many state legislatures were in recess during California’s fight over the matter, “I think it’s highly likely that lawmakers across the country will be looking to get something on the ballot in 2009,” said Christine Nelson, a policy analyst who focuses on same-sex marriage and family law for NCSL.

In Iowa, officials with the Polk County attorney’s office declined to comment on the impending Supreme Court debate.

Attorney Camilla Taylor, lead counsel for the prosecution, said the Iowa case is not about issues of faith.

“All we’re talking about is government-issued marriage licenses,” said Taylor, who works for Lambda Legal. The national gay rights organization filed the lawsuit in 2005 on behalf of six same-sex Iowa couples; it was later amended to include three children whose parents are plaintiffs.

“There comes a point when you can’t tell people to hold off on getting married any longer,” Taylor said. “We felt the time was right, and that Iowans would give us a fair hearing.”

“Iowa marriage law is settled, simple and overwhelmingly supported by the people of Iowa,” countered Bryan English, a spokesman for the Iowa Family Policy Center, which opposes same-sex marriage. “We’re just hopeful the Supreme Court will uphold the law.”

Until a final ruling is issued, Sean Fritz and Tim McQuillan won’t know how long their marriage will remain legally recognized in the state of Iowa.

On the morning of Aug. 31, 2007, the two college students filled out the paperwork for a marriage license in Polk County, paid $5 to waive the normal three-day waiting period, and found a judge to sign the waiver form.

A pastor at the First Unitarian Church of Des Moines agreed to hold a quickly organized wedding on his front lawn, where it was witnessed by family and more than a dozen reporters.

Less than an hour after the couple received their marriage license, Hanson placed a hold on his ruling, pending the appeal.

That sort of rushed nuptial didn’t appeal to either Jen BarbouRoske, 38, or her partner of more than 18 years, Dawn BarbouRoske. The couple — plaintiffs in the case going before the Iowa Supreme Court — has long wanted to get married in their hometown of Iowa City, for themselves and their two daughters.

” ‘Marriage’ describes the relationship Dawn and I have,” said Jen, a nursing supervisor. Besides, she added, “it seems like a silly thing to have to explain to your kids, ‘Oh, these are the rights we don’t have.’ ”

Huffstutter is a Times staff writer.

Written by kickingalion

November 27, 2008 at 4:29 am

A Decent Proposal for Equality: A Must Read

If We’re Going to Make It a Battle, Let’s Do It Right

Two weeks ago, 2,000 protesters marched on the Los Angeles headquarters of CNN, shutting down the street. They banged on the windows (til one of them ordered them not to), they sat in the street, they were determined to make their collective voice heard. Frustrated, an L.A.P.D. officer asked by megaphone, “Who’s in charge here?” and someone shouted, “We all are!”

Nobody can look back at the last two weeks and say that something hasn’t fundamentally changed within the gay community. The scope, speed and ferocity of the protests that followed in the aftermath of the passage of Proposition 8 are unprecedented.

The question on everybody’s mind is “What now?”

The far right and religious conservatives look at the crowds marching in the streets and call it “terrorism”, “fascism” and “anarchy”; mostly disingenuously, but not always so. They tell those who will listen to them that marriage equality is the first step to knocking down the churches and that it will force children to discuss sexuality at even the earliest ages. The words “witch hunt” and “blacklist” are being thrown about with casual ease.

Their argument is that people should be free to believe in and support a political cause without consequence, willfully ignorant of the fact that they’ve been denying that same luxury to equal rights advocated for years. They don’t like that the tables have been turned. They point out isolated incidents of limited violence made against Yes on 8 supporters, while ignoring that No on 8 supporters have been attacked as well.

Within the gay community, there are real fissures: Some new, some old ones brought back to life. Lori Jean of the Los Angeles Gay & Lesbian Center shouts that the only group to blame for the passage of Prop 8 is the Mormon Church. This is as simplistic as George Bush’s characterization of the war on terrorism being a conflict against “evil-doers”. Others lay the blame at the feet of the No on 8 campaign, which myopically put all of its eggs into television advertising and phone banking while actively scoffing at the idea that face time with voters would make a difference.

Like most things in life, there’s plenty of blame to spread around for the defeat in California. It’s true that the Mormon Church mounted an impressive fundraising campaign, but only the naïve would think that there wouldn’t be a ferocious battle for same-sex marriage in one of the most influential and largest states in the nation.

Maybe we needed this to happen. For Californians to have been granted the right to marry and then have it snatched away again less than six months later made a subtle discrimination blatant, not just in one state, but across the country. Similar measures in Florida, Arizona and Arkansas that passed on Election Day have made this a national movement and while Prop. 8 remains the focus, most everyone sees this as a battle to eliminate gender and sexuality discrimination from American civic life once and for all.

The California Supreme Court has agreed to rule on the legality of Proposition 8, but even if the judges rule in our favor, it will be on a process-based technicality and anti-same-sex marriage activists will try again. We must face the fact that if we are to win, we can’t rely on court battle after court battle. We must be willing to change the minds of at least some of the people who now oppose us. The difference between challenging someone’s beliefs and disparaging them is that only one gives you a shot at changing someone’s mind.

There’s also the other 33 states that outlaw gay marriage. If California were to win back its rights and leave the other states to fend on their own, they would be the worst sort of family.

This is a big and daunting fight, but it is the civil rights battle of our time. There are other important issues that the gay community needs to address: poverty, its own institutionalized racism and misogyny, drug abuse and HIV-related issues, but marriage equality isn’t just a totem. By demanding that LGBT people be treated equal citizens, it will be easier for more people to live their life without fear. This will make it easier to reach out to minority communities and the poor. It will widen our community, introducing more diversity of opinion and it will raise allow gays and lesbians to hold their head up high.

There are three questions that must to drive this revolution. By discovering the answers, we will be able to chart a course ahead.

The first is, “Who are we?”

On the surface, this question is obvious, but its simplicity is deceiving. Who makes up the gay community? Saying that it’s just the people who have same-sex attraction is inaccurate—we should not count the Larry Craig’s and Ted Haggard’s of the world among us. The gay community ghettoized itself in cities as a way to protect itself from those who hate us. We’ve outgrown the usefulness of the ghetto. It’s the final closet the gay community must escape from.

Many gays and lesbians already have and live far away from the bars and clubs of Chelsea, SoBe and WeHo, but they often feel that they have little relation to urban gays, who can be intolerant of anyone, even other gay people, if they don’t subscribe to the same political and social orthodoxy as they do. The gay community needs to become a more egalitarian place, not for any intrinsic good, but because we don’t have the luxury of being choosy about our allies.

We must decide that the only requirement to get your gay card is a commitment to ensuring equal rights for LGBT people. This means the composition of the gay/queer community will change and that the traditional gay community will have to accept people who will not always agree with them, but this should not be a impediment to a community that prides itself on diversity.

The second question we must ask ourselves is “What do we want?”

The gay community ought to write a Declaration of Equality and it ought to do it openly and transparently. We must decide what “equality” means to us. Is it civil unions or marriage? Should we include removing Don’t Ask-Don’t Tell and employment non-discrimination? What in essence, are we demanding? We must make clear that our interests are in civil rights and that we have no designs on redefining religious institutions. We must make clear what actions we will take against those who oppose us, whether it be through speech or through dollars. If we are to boycott, we must boycott equitably. Does a grocery store clerk who donates to a measure that denies us equality warrant a boycott of the entire chain? What if it’s the CEO?

By crystallizing our goals we will make a stronger case. Legislators, business people and mothers and fathers will know exactly what it is the gay community seeks and what the consequences will be for those who seek to defeat us. We will be defining ourselves instead of letting others define us by unifying our community around a common set of principles.

The final question we must ask is, “How do we get there?”

If we’ve succeeded in answering the first two questions, we’ll have gone a long way to answering the third. We need to actively seek out and enlist people to join our cause, not just in the places we know, but also in places that we’ve written off.  The Internet holds great promise for helping that along. These questions cannot be answered by a select few, however. This needs to be a movement of Gay, Straight, Black, White, Latino, Asian, Republican, Democrat and independent. It must be a movement that gives a voice to anyone willing to speak up and demand equal rights for all Americans. This can’t be a movement ruled by vanity or ego, but by good ideas and a commitment to justice.

There’s a sense of inevitability about the gay community achieving equality. We know we’re on the right side of history, but being morally right is not enough. Waiting for public sentiment and understanding to change on its own is not enough. We must hasten the inevitable—and we must do it the right way, with persistence, love for our fellow neighbor and with open arms to new allies and to new ideas.

“Who’s in charge?”

We all are.

Courtesy of

Written by kickingalion

November 24, 2008 at 6:26 pm

The Courts & California’s Gay Marriage Ban

The legal challenge to California’s Proposition 8 has six lawsuits going for it, a host of influential friends of the court and the governor’s opinion that the ban on same-sex marriage is unconstitutional. Whether the challenge has a chance is another matter.

In a recent meeting with the Los Angeles Times’ editorial board, Gov. Arnold Schwarzenegger expressed confidence that the ban would be overturned, because the California Supreme Court this year rejected an earlier ban, Proposition 22, as unconstitutional. The governor is being politically sensible but legally naive about this; the arguments against Proposition 8 hang on different precedents, issues and history.

The definition of marriage in the two initiatives is identical: “Only marriage between a man and a woman is valid or recognized in California.” But Proposition 8 embeds that definition in the state Constitution, and it would defy reason for the court to hold that part of the Constitution is unconstitutional. In challenging the measure, the lawsuits argue that it is not in fact a constitutional amendment, which requires only a simple majority of the popular vote for passage, but rather a constitutional revision, a fundamental change in the Constitution that entails a far more complicated approval process.

The state Supreme Court has never been all that clear on what it considers revision, but it has set the bar high, finding only twice that supposed amendments actually revised the Constitution. Measures that insert sizable passages on multiple issues seem to fall into the “revision” category; in a 1948 case, the court struck down an amendment that would have added 21,000 words covering various topics to the 55,000-word Constitution.

Proposition 8 lies at the opposite end of the spectrum, a mere 14 words that strip one group of people (homosexual couples) of one right (legally recognized marriage). The California court rejected similar challenges to the death penalty and to a proposition that affected property taxes, both of which, it ruled, were properly considered amendments, not revisions. And this year, the Oregon Court of Appeals rejected a lawsuit on same-sex marriage much like the current lawsuits — Oregon’s Constitution has similar provisions on revision and equal protection. As a result, the legal challenge to Proposition 8 is generally seen as a long shot.

Yet that doesn’t mean the lawsuits are without merit. The California court has indicated that the quality of the change matters, not just its length or breadth. Gay-rights supporters argue that by stripping a protected group of the right to marry, Proposition 8 nullifies the equal-protection provisions of the U.S. and California constitutions. The Oregon court disagreed, but there is a potentially important difference between the two states: The Oregon Supreme Court has never ruled that marriage is a fundamental right under its state Constitution. The California Supreme Court has.

There are other legal precedents to consider. In 1996, the U.S. Supreme Court ruled against a constitutional amendment in Colorado that would have forbidden all laws protecting civil-rights for homosexuals. The ban violated the equal-protection provisions of the 14th Amendment, the court wrote, by singling out one group to be denied the rights enjoyed by all others.

But there also are differences between the Colorado and California measures. In Colorado, gays and lesbians were denied legal protection against discrimination in housing, employment and other basics of life. The court cited the breadth and basic nature of these rights in its ruling, saying there could be no legitimate state interest in the measure, simply animosity toward one group; in contrast, same-sex marriage is both newer and narrower, although, according to the California high court, an equally basic right.

Although we, too, will welcome the day that Proposition 8 is consigned to history and the right to same-sex marriage is restored to Californians, we are sorry to see that the court agreed to take the cases directly rather than letting this issue percolate up through the lower courts. We see no reason for the haste, despite the intensity of emotion roused by the measure’s passage. In fact, that very heatedness is a reason for the court to move slowly, allowing it to rule under cooler circumstances.

Similarly, painful though it is to see Proposition 8 take effect, we agree with the court’s decision to allow it to stand as law until the court rules. This is a hateful measure, passed after a campaign of misleading scare tactics, but it did pass. Suspending further same-sex marriages while the litigation proceeds will delay the exercise of this fundamental right, but we are a democratic nation and one bound by the rule of law; until voters reconsider or the courts decide otherwise, there is no option but to stop issuing marriage licenses to same-sex couples.

Many voters will claim that the courts should have no jurisdiction. Just as they did after the California court’s May ruling that legalized same-sex marriage, these people will complain about “activist judges” potentially subverting the will of the people. Maybe schools need to strengthen their civics lessons so that future voters will understand that supreme courts specifically are charged with ruling on constitutional questions — and it is a sacred and historic role of the courts to protect minority rights as enshrined in state and federal constitutions. Indeed, if courts merely existed to ratify the will of majorities, they would add little to our society.

The California Supreme Court could rule either way on whether Proposition 8 amounts to a constitutional revision, but the issue demands its attention. The court already has found that same-sex marriage is a fundamental right; now it has the opportunity to fulfill its constitutional obligations to guard against the tyranny of the majority and to ensure that elections do not become vehicles of repression.

Written by kickingalion

November 24, 2008 at 3:50 pm