A fascinating development

[occultatio]

Judge to Prop. 8 backers: Turn over your papers

"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.

...

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."

...

"Andrew Pugno, a lawyer for the Prop. 8 sponsors, said Friday it was unprecedented to allow "the losing side of a campaign to pry into the most intimate strategy discussions of the winning side."

"This will make any citizen group think twice before attempting a ballot initiative," Pugno said."

At first, I was overjoyed: I never even thought of that as a possible route to overturning the damn thing! The more I consider the implications and possible precedent this could set, however, the more worried I become. On the one hand, Prop 8 was motivated by bigotry, everybody involved damn well knows that, and the federal goverment at least has made it very clear how it feels about bigotry-motivated (or interpreted) laws.

On the other hand... this was a citizen group, and the very last thing we want is for citizens to be held accountable for their thoughts and motivations. Major free speech red flag, there.

On the other other hand, a citizen's motivation is called into question vis a vis criminal trials, yes? Intent being the primary distinction between murder and manslaughter, and critical to assigning the term "hate crime?" I'm not sure quite how that would apply here, unless Prop 8 is being discussed as, literally, a "criminal act."

On the other^3 hand, and unrelatedly to everything else, it would actually be awesome if political campaigns were forced to share what passes for their "strategy," in a general sense. It's disgusting how much politics today is indistinguishable from marketing, and one of the effects of that is the victor is generally the party with the better "strategy," regardless of how the population actually feels about the issues at stake. Forcing strategy documents to be made public after the fact could possibly do a lot to level the playing field.

Thoughts? How stupid and/or naive am I being?

Comments

[novalis.livejournal.com]

Even if the campaign staff were motivated by bigotry, it wouldn't follow that 50% + 1 of the voters necessarily were.

[lowellboyslash.livejournal.com]

It's interesting--I wish I knew more about the legality of the situation, which is so hard to tell from the article. I think it's telling that the (gay-hating) defendants are claiming that the Prop. can't be overturned on a constitutional basis "because there is no constitutional right to same-sex marriage", whereas the (gay-activist) plaintiffs are claiming the Prop. is constitutionally invalid because it "disfavors a group in a way that's unconstitutional" (my emphasis).

That sure makes it sound like the defendants are trying to wiggle out of a legitimate constitutional conundrum--and trying to make it sound like it sets a bad precedent.

What I want to know is how this case compares not to other civil rights cases, but to other cases of campaign investigation. Is this judge asking for anything more than any campaign would be asked for? And don't campaigns have to make their papers a matter of public record anyway?

[dr_whom]

It's totally not clear to me why finding that the amendment was motivated by bigotry would invalidate it. I assume it has something to do with the distinction between an "amendment" and a "revision"? (The former can be passed by ballot initiative in California and the latter can't.) But I don't see why the motivation, rather than the content, of a proposal can make the difference between whether it's an amendment or a revision; and the article doesn't really explain why the judge thinks it should matter.

Read Covering by Kenji Yoshino

[eredien]

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."

Another problem with this approach:
I need to know the answer to the question the court wants to sidestep. Do I or do I not have a constitutional right to marry in CA?

There are two ways this qustion can be answered: through the court or through the legislative process. I *want* the court to decide, or I want the legislature to decide. That's what you ask a court or legislature to *do,* after all. If one can't do it the other one should.

If the court wants to "strike [Prop 8] down without having to decide whether gays and lesbians have a constitutional right to marry," they're giving a clear signal to me that they're not going to actually answer the question themselves. But, they're also giving a clear signal that they want to make the legislative way to answer that question even more torturous that it already was. That is a problem.

This is all done in the name of eradicating homophobic laws, which is something I support, and is something that falls under the courts' purview, so it makes it tricky. The best way to pass down unhomophobic laws is to actualy make unhomophobic laws. The court already tried to do that and was hamstrung by the legislative process (passage of the Prop 8 ballot measure); now they are trying to step in to hamstring the legislative process--but they won't want to issue another clear ruling themselves.

Where does that leave us, who want the answer to the question?

I don't think that this cycle of accusations of homophobic bigotry on one side and activist judiciaries and identity politics on the other side is going to change until the law starts changing what it is protecting, from "this protected class of people but not their actions" to "the cultural and socially informed actions that people take in their daily lives." Please read "Covering" by Kenji Yoshino for some important arguments on how the law could better change to actually encompass more diverse behavior and less bigotry for all without being accused of an infinitely hair-splitting group favoritisim or charges of bias.

The more I consider the implications and possible precedent this could set, however, the more worried I become. On the one hand, Prop 8 was motivated by bigotry, everybody involved damn well knows that, and the federal goverment at least has made it very clear how it feels about bigotry-motivated (or interpreted) laws.

That is not really true, not even a little bit. If the federal gov't was clear how it felt about bigotry-interpreted or motivated laws, we wouldn't have DOMA or DADT (don't ask don't tell). It hasn't even been very clear on the question of what constitutes bigotry against defined "protected classes," such as people of various religions or ethnicities. Queer people aren't one of those defined protected classes (because queerness asserts itself through behavior and action rather than being something intrinsic like skin color), so the law is even murkier. Again I refer you to Yoshino.

On the other hand... this was a citizen group, and the very last thing we want is for citizens to be held accountable for their thoughts and motivations. Major free speech red flag, there.

I think maybe you misspoke, here--did you mean "accountablity?" Or were you trying to differentiate between personal accountability and the state calling people to account? Because I think a certain amount of accountability is necessary. While the ideal is for each person to take full accountability for their own thoughts and actions, I certainly would like outside actors to hold some people accountable for their actions if the citizen themselves cannot do it (in cases of crimes, for example, though thinking people may differ on how that citizen ought to be held accountable). Accountability for their own actions and thoughts is among the first things I'd like individuals to have; it's among the last things I'd like the government to hold me accountable for.

One clarification...

[eredien]

The more I consider the implications and possible precedent this could set, however, the more worried I become. On the one hand, Prop 8 was motivated by bigotry, everybody involved damn well knows that, and the federal goverment at least has made it very clear how it feels about bigotry-motivated (or interpreted) laws.

That is not really true, not even a little bit.

I realized upon another re-read that it was not entirely clear what I was calling out there.

What I should have said is: It is not really even a little bit true that the federal government has made it very clear how it feels about bigotry-motivated (or interpreted) laws. If the federal gov't was clear how it felt about bigotry-interpreted or motivated laws, we wouldn't have DOMA or DADT (don't ask don't tell). It hasn't even been very clear on the question of what constitutes bigotry against defined "protected classes," such as people of various religions or ethnicities. Queer people aren't one of those defined protected classes (because queerness asserts itself through behavior and action rather than being something intrinsic like skin color), so the law is even murkier. Again I refer you to Yoshino.

It is very clear that Prop 8 was motivated by bigotry, as are the ongoing campaigns in other states against marriage, domestic partnerships, you name it (I think the high profile of the Prop 8 fight in CA sometimes overshadows the fact that these battles are still going on elsewhere in the USA, and over matters like gaining the right for domestic partnerships, rather than the larger right of marriage).

It is less clear that everyone involved--I am speaking here mostly of individual voters, not clearly bigoted state or out-of-state organizations or political actors--damn well knows that, but that's partly the fault of the piss-poor or nonexistent outreach to people of color and religious communities done by some (though not all) CA gay-rights groups *coughcough HRC cough*.

One more clarification...

[eredien]

Queer people aren't one of those defined protected classes (because queerness asserts itself through behavior and action rather than being something intrinsic like skin color)...

In that sentence, I was talking about the current state of US law definitions of homosexuality as I understood them, wherein it seems like homosexuality is currently legally defined mostly as a set of actions and behaviors--whereas possessing a skin color, for instance, is not a behavior or action.

I did not mean to imply that that was my personal definiton or belief that homosexuality is either an action/behavior/choice or is somehow inborn or intrinsic.

Re: One more clarification...

[dr_whom]

I dunno.... Religion is a protected class, and that's definitely defined mostly as a set of actions and behaviors (in the sense that homosexuality is), rather than something intrinsic like skin color.

Re: One more clarification...

[eredien]

I don't entirely understand how religion can be defined as a protected class and homosexuality can't, but again I totally refer you to the Yoshino book I mentioned above, which lays out a better explanation than I can seeing as how the author is a law scholar and I am not.

Briefly while I am eating breakfast, I'll try and summarize what he says: "What distinguised religious minorities and people with disabilties is not their susceptibility to covering demands, but the protection the law ostensibly gives them against such demands. In laws protecting both groups, we see an assimilation model of civil rights formally ceding to an accomodation model. ... unfortunately, far from extending the accommodation principle, courts have limited it in the contexts of religion and disability."

He talks about a case in which since a medical condition was found to be changable, it was decided that the person with the condition was not disabled, so they were not entitled to accomodation.

He also talks about the historical interpretation both the courts and the American people have had in general of religious practice, in part because there are documents like the Constitution's "free exercise of relgion" clause to bolster up that argument. Justice Sandra O'Connor: 'because the first amendment does not distinguish between religious belief and religous conduct, conduct motivated by sincere religious belief, like the belief itself, must at least be presumptively protected by the Free Exercise clause."

So it looks like in the case of religion, there's already a lot of history and documents backing up this one thing (religon) as a set of actions and behaviors that is a protected class, but the court isn't extending that to other things, and in the case of disability, it seems like the courts are going for assimilation rather than accomodation in many cases--even though the ADA itself requires reasonable accommodation--to avoid fractured identity politics, where everyone is a protected class and has to prove that a condition is immutable before a group can be a real protected class.

Re: One clarification...

[occultatio.livejournal.com]

So, just for what it's worth, I mainly haven't responded because your comments have given me *so* much new to think about that I haven't even begun to assimilate it coherently yet. It is interesting, though, and I'm sorry I can't really get into a discussion about it with you!