For at least one judge in California, it is no longer enough that a ballot initiative fulfill the legal requirements for such measures. The backers of an initiative had also better have motives that are pure as the driven snow, as the San Francisco Chronicle reports:
A federal judge has ordered sponsors of California’s Proposition 8 to release campaign strategy documents that opponents believe could show that backers of the same-sex marriage ban were motivated by prejudice against gays.
Plaintiffs in a federal suit seeking to overturn Prop. 8 – two same-sex couples, a gay-rights organization and the city of San Francisco – contend that the measure’s real purpose was to strip a historically persecuted minority group of rights held by the majority.
If the courts find that the ballot measure was motivated by discrimination, they could strike it down without having to decide whether gays and lesbians have a constitutional right to marry.
“The intent or purpose of Prop. 8 is central to this litigation,” Chief U.S. District Judge Vaughn Walker declared Thursday in requiring backers of the November 2008 measure to give the opposing side their internal campaign communications.
The question before the court should not be, “what was in the hearts of the people who wrote and campaigned for this proposition?” It should be, “is the text as the voters passed it legal?” The latter question has already been decided. Any further attempts to delve into the mindsets of the supporters (or opponents, for that matter) needs to consider the injunction, “Let those who are without sin cast the first stone.”
(Via Stand Firm.)
October 5, 2009 at 10:18 am
“what was in the hearts of the people who wrote and campaigned for this proposition?”
Sorry, David, that is exactly the question before the court, just as the Supreme Court always has to decide what Congress *intended* to do when it passed a law.
If the case were, for example, someone on the anti-gay side was trying to use Proposition 8 to argue that Californians not only voted to outlaw marriage, but also civil unions, again the intent of the writers of the amendment would be taken into account as would their statements about the intended extent of the amendment. It works both ways.
That’s the standard used and it has always been the standard used by courts in this country. You didn’t complain, for example, when supporters of the anti-gay marriage amendment in Michigan argued that it covered not only marriage, but domestic partnership benefits, civil unions, and *any other form of legal contract between two members of the same sex*, in spite of their advertisements to the contrary before it was passed.
So, you can disagree with the standard if you like, but I find it interesting (though not surprising) that you only complain about that standard now. 😉
October 5, 2009 at 12:03 pm
I didn’t know about the Michigan situation.
But as for this one, I think (actually, know) there’s a difference between the matter of congressional intent and that involved in referenda. In the former, there’s a concrete, public record that includes the input of anyone in Congress who contributed to the creation of a piece of legislation. In the case of a referenda, where do you draw the line as to who’s input makes a difference, much less how to determine it? Is it just the writers of the initiative? Campaign managers? Campaign donors? Advertising agencies? Local advocacy committees? How about voters?
How about if evidence were submitted showing that the organizers of the anti-Prop 8 campaign didn’t actually care about gay marriage, but were only trying to do everything they could to undermine all forms of monogamous, traditional Western marriage? (Please don’t make me quote people who have said such things, they’re out there and we all know it.) Would that invalidate their opposition?
Trying to determine meaning is not at all the same as determining “intent.” Those bringing this suit are alleging a discriminatory mindset. The problem is that the proposition, by its very nature, discriminates (as does any law that requires that some people forgo a particular benefit, saying, the prohibition on people under 62 getting Social Security retirement benefits). The question is not whether Prop 8 discriminates, but whether it does so in a constitutional fashion. There’s a legitimate argument to be made about that either way, to be sure, but it doesn’t require delving into the hearts and minds of the initiators to determine.
October 5, 2009 at 12:13 pm
I guess you’ve never heard of “legislative intent”? This move is hardly unprecedented. In fact, when the SCOTUS overruled Romer on equal protection grounds that also delved into the intent of the constitutional amendment and whether it was motivated by animus. Given that sexual orientation is becoming a quasi-suspect classification in the federal courts (and clearly a suspect classification in CA courts) they need to at minimum apply a rational basis review for this amendment and determine whether it is rationally related to a government interest. That precludes motivation based on animus.
October 5, 2009 at 12:33 pm
As I mentioned above, legislative intent, and intent in the case of referenda, are two different things, with inherently different ways of determining intent. I’m certainly familiar with Romer, and what I find interesting is that there is no evidence of animus cited in Justice Kennedy decision; rather, it is simply assumed:
“[I]ts sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.
“A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462 (1988), and Amendment 2 does not.
“The primary rationale the State offers for Amendment 2 is respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. “[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . .” Civil Rights Cases, 109 U.S., at 24.”
The appropriateness of the “bare desire to harm” quote is founded in Kennedy’s inability to accept any of Colorado’s arguments for the amendment. He assumes that if the arguments presented are the best they can do, the real reason for the amendment must have been a “bare desire to harm” gays. But was animus proven? Was any evidence of it ever received by the Supreme Court, or ordered by a lower court to be presented? No. And the fact that Kennedy could see “no rational purpose” in the amendment doesn’t mean there wasn’t one; in this instance, it means that he chose to call all of the reasons offered for it irrational.
October 5, 2009 at 1:18 pm
“where do you draw the line as to who’s input makes a difference, much less how to determine it? Is it just the writers of the initiative? Campaign managers? Campaign donors? Advertising agencies? Local advocacy committees? How about voters?”
In Michigan, the MI Supreme Court looked at advertising by the groups supporting the initiative, quotes in newspapers by the writers of the initiative, etc.
If you think that requires reading people’s minds to figure out what the writers of these initiatives actually mean when we have their own advertising and their own quotes in newspapers as evidence, then I’m not sure you’d find any evidence satisfying.
For me, I assume that when the people who actually wrote the referendum in the first places say, in print, (and even pay for the postage to say it) “This won’t do X,” or “This will do X” that pretty much sums up their intent.
Call it mind-reading if you wish, but I think you’re really grasping at straws here.
October 6, 2009 at 10:02 am
The difference seems to be what kind of things the court is looking at. Looking at legislative intent means reviewing the debate the legislature had before taking their vote. It’s public speeches and considered reflections. On the other hand, what the court in California seems to want to examine is any kind of off hand comment or reaction. Even though Jesse Jackson did say it, I’m not sure he would like his dismissive comment calling New York City “Hymietown” to be the measure of his intentions toward New York and its people.
In unguarded moments all of us from time to time give voice to our ID — but that doesn’t mean that’s an accurate assessment of what I intend or plan to do.
What I find more troubling is the idea the court could simply strike the amendment down with out examining the merits “If the courts find that the ballot measure was motivated by discrimination.” To discriminate is to make a clear distinction, and all laws do that. The very intent of every law is to make a clear distinction between what’s permitted and what’s not. Sexual harassment codes (if they’re well drafted) make clear distinctions between permissible and impermissible speech and conduct. Those codes are motivated by discrimination because the only reason they exist to discriminate.
There is, of course, good and bad discrimination, and we must make clear distinctions between them — discriminate between them, if you will. It’s okay to require a jet pilot have good eyesight. But it’s not okay to require a jet pilot have blond hair. The former distinction has something to do with the skills required to fly a plane, the latter is irrelevant.
The question the court should be looking at is whether the discrimination against homosexual marriage is relevant or appropriate discrimination. That would require the court to look at the role of marriage in society. It would need to look at the cross-cultural and historic place marriage has had in building a stable social order.
I expect, however, they will look at none of this. I expect they’ll take the tack of so many on the progressive wing and say “I disagree with them, so they must be bad people animated only by animus and must be excluded from meaningful participation in democratic society.”
October 6, 2009 at 12:56 pm
[…] AS THE DRIVEN SNOW? “For at least one judge in California, it is no longer enough that a ballot initiative […]
October 6, 2009 at 1:23 pm
“I disagree with them, so they must be bad people animated only by animus and must be excluded from meaningful participation in democratic society.”
And that’s worse than you folks on the conservative side who apparently want to completely disregard the way the law actually works, as we’ve seen here in this comment thread, in order to further your own particular agenda?
In a lawsuit, it isn’t that hard to subpoena documents that are even only marginally relevant to the case. In this particular instance they’re looking to get “campaign strategy documents” which certainly seem relevant to the plaintiff’s case. That’s the way lawsuits work.
The issue here isn’t the law, since that’s clear and this is the way lawsuits work … each side tries to get as much evidence as possible in order to vigorously make their case. Instead the issue here is that this is an anti-gay group being sued by gay folks, so no one should be surprised at the grasping for straws to find something to complain about we’re seeing here. And given the drive by so many in the radical right to keep LGBT people from having any meaningful participation in democratic society, I guess I should be hardly surprised that some would want to also limit their ability to bring lawsuits against anti-gay groups.
October 6, 2009 at 1:35 pm
Alan, there have been shenanigans on both sides of the issue.
In Wisconsin, the group leading the charge against the amendment, Fair Wisconsin, resorted to outright deceptive robocalls, telling people that to protect marriage between one man and one woman, they needed to vote NO on the amendment (voting NO would allow for other forms of marriage). Here are recordings of the calls: http://blogs.wispolitics.com/2006election/2006/11/pro-amendment-forces-call-fair.html
October 6, 2009 at 1:43 pm
Yes, and people were lied to regarding that amendment, the one in Michigan, the one in California, and elsewhere. In the Michigan example, I’ve thoroughly documented those lies on my blog based on the supporters’ own words.
But that has nothing to do with the issue here. If the defenders of Prop 8 wanted to get documents from the LGBT groups that voted worked to defeat Prop 8, through established legal avenues, that would be fine too. In fact, the defenders of Prop 8 have sued to get the anti-Prop 8 donor list, while simultaneously attempting to assert that their own donor list should remain secret.
So, *I’m* not the one asking for special rights for the so-called defenders of marriage. That would be the other folks commenting here. So if you’re suggesting that everyone should be held to the same standard, I agree. Now you just have to convince everyone else commenting here of that. Good luck. 😉