occultatio (![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png)
occultatio) wrote2009-10-05 05:04 pm
occultatio) wrote2009-10-05 05:04 pm
A fascinating development
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?
"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?
One more clarification...
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...
Re: One more clarification...
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.