Prop 8 update

Yesterday, the California Supreme Court agreed to take up the cases challenging the validity of Proposition 8. The court announced it will not stay the proposition pending its decision, meaning that state officials cannot issue same-sex marriage licenses while this case is litigated. All briefs are due by January 31, 2009 and oral arguments will begin some time in March, meaning that the ruling will probably come in June of next year.

The court will address the following three questions:

1. Is Prop 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
2. Does Prop 8 violate the separation-of-powers doctrine under the California Constitution?
   
3. If Prop 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Prop 8?

There are 7 Supreme Court justices on the California Supreme Court. The order to grant this hearing was signed by 6 of the justices. The one justice who voted to deny these petitions (and thus move to amend the Constitution without further delay) was Justice Kennard. This is significant, because Justice Kennard was a member of the 4-3 majority that ruled in favor of same-sex marriage earlier this year.

This issue is obviously very complicated and I know very little about California history. However, here is what I do know:

California's constitution makes an important distinction between amendments and revisions. Amendments require a 2/3 vote in both houses of the California legislature OR 50%+1 of a popular vote. On the other hand, a revision requires a 2/3 vote in both houses of the California legislature AND a 2/3 vote of the California electorate. The California Supreme Court's definition of a revision is:

"A substantial alteration of the entire constitution, or the underlying principles upon which the Constitution rests, rather than to a less extensive change in one or more of its provisions" (from the case: Amador Valley Joint Union High School District v. State Board of Equalization, 22 Cal.3d 208, regarding Prop. 13 in 1978, and Livermore v. Waite, 102 Cal. 113, regarding a legislatively-induced amendment to move the state capitol to San Jose in 1894).

Opponents of Prop. 8 will likely argue something such as: Prop. 8 substantially alters the entire California constitution because it singles out a class of people for discrimination. Proponents of Prop. 8 will point to other significant ballot propositions that were deemed amendments, including:

• Property tax limitations (Prop. 13 in 1978). Under Proposition 13, similar properties can have substantially different assessed values based solely on the dates they were purchased. The proposition was ruled an amendment, even though opponents argued violation of the Equal Protection Clause.
• Lifetime term limits (Prop. 140 in 1990). Under proposition 140, lifetime limits were placed on state lawmakers (6 years for the assembly, 8 years for the senate). The California Supreme Court ruled 6-1 that lifetime term limits were not a revision, even though it fundamentally altered the character of the Legislature (see Legislature v. Eu, 54 Cal.3d 492).
• Increased monitoring of sex offenders and child molesters (Prop. 83 in 2006). Under Proposition 83, certain fundamental rights were stripped from sex offenders. They were prohibited from living in certain areas (near schools) and were required to be electronically monitored (via GPS tracking) for life. The amendment was never challenged in court.

The second question addresses whether Prop. 8 violates the separation-of-powers doctrine of the California constitution by restricting judges' authority to protect the rights of same-sex couples. This really gets at the heart of ballot propositions, and points to a central argument made in favor of Prop. 8: that 4 liberal justices in San Francisco overturned the will of 61% of the electorate (those who voted in favor of Proposition 22 in 2000). On the one hand, the rules state that ballot propositions are legal, and that their effect should limit the government's influence. The initiative process was included in the original constitution as a way to protect the public from corporate interests (mostly railroads) who dominated California politics in the 1800s. On the other hand, the very purpose of a judicial branch is to temper public opinion, whether it's a popular majority that supports prejudicial policies, or their representatives whose legislation may discriminate against minority groups.

Finally, the court will determine if amending the constitution will nullify the 18,000 same-sex weddings performed between when the court's marriage ruling took effect in mid-June and Nov. 4. Attorney General Jerry Brown, who will defend Prop. 8 as the state's chief lawyer, contends those marriages are legal, but sponsors of the initiative disagree.

Democracy is messy. And notwithstanding the sensationalized media coverage of the post-election response to Prop. 8, the public is acting quite civilly. I applaud the parties on both sides who are right (in my mind) to legislate and litigate this issue. Our institutions are well-equipped to get this right.

A Change for Space?

I gave a presentation to a science policy group here in which I discussed the current US space exploration policy using this paper by a couple of Rice University professors as a starting point.

Basically the authors argue that the continued US preeminence in space exploration is contingent upon resolving four issues:

1. Cumbersome US export policies for satellites and other space-related equipment.
2. Declining numbers of new US scientists and engineers.
3. A flawed and incoherent plan by NASA that neglects the importance of basic science.
4. A lack of real perspective on international cooperation.

The discussion was lively especially with respect to the second and fourth issues. Several of the attendees were non-US nationals studying for science PhDs here. A big question that came up was whether or not declining US-native scientists is a problem. The argument goes that if space exploration in the 21st century is a journey, not a race, why should we care about the nationalities of those involved? Shouldn't we rather care solely about the progress of science? Does nationalism have a place in our international world plan?

I don't have good answers to these questions. But I thought out next president might. Barack Obama released a campaign statement stating that his goal is to maintain US preeminence in space. I'm sure the statement there that "Human exploration beyond low-earth orbit should be a long-term goal and investment for all space faring countries, with America in the lead," was meant to inspire US nationals, but do we really need to be the lead? When the position states that "The United States needs to fully involve international partners in future exploration plans," shouldn't it really say that the US needs to be fully involved with international partners, a subtle difference but one that treats our international collaborators as actual partners.

Perhaps I'm naive. Perhaps I like to think I avoid competition generally. Perhaps there are national security issues which ought to be considered. Perhaps the desire to maintain US preeminence in space will keep us from complacency. But I'm not sure. It feels equally as likely that the desire to out-do other nations will impede our progress and cause us to miss out on valuable opportunities for collaboration. I know scientific discovery is very much built on profit and competition (patents). But it seems equally built on open dialog and acceptence of valid theory and practices regardless of the source.

So I guess my real question is: When science meets the state, who wins?

Mormons and Prop 8

California voters supported Proposition 8 by a 52-48 margin last week. While it is unclear exactly how much the influence of the Mormon church had on the outcome, the Church was actively involved in a grassroots campaign in favor of the proposition for 5 months. A blog-quaintance of mine, Anna (whom I've never met) recently questioned the semantics of the label marriage and said the whole Prop 8 movement "makes no sense." I agree with her. And here is why.

In the United States, marriage is a civil union, not a religious one. This is true almost everywhere in the world (except for the few countries where the religion is also the government). You can, if you’d like, get married in your church, but it won't be recognized by the State. Conversely, civil marriages (in the Mormon faith) are not recognized by God once we die, so it really doesn’t matter who we marry – male, female, same-sex partner – because in the end the only marriages that will be recognized will be those sealings between couples who kept all of their commitments and were faithful to the Church (otherwise, even your heterosexual temple marriage is null and void).

Certain benefits have been afforded to (civilly) married couples: tax breaks, immunity from incriminating testimony in court, visitation rights at hospitals, access to Social Security and other pension benefits upon death of spouse, property rights, custody rights, and more. In California, all of these benefits are available to same-sex couples in domestic partnerships. In other states, various benefits are afforded, while some are not. Until these benefits are equally available to all who are in committed relationships, denying somebody the opportunity to get married amounts to a denial of whatever benefits they are not afforded under domestic partnership laws.

As far as the Church is concerned, the debate strikes me as odd. The Church has repeatedly stated that they favor granting same-sex couples all of the rights and benefits of married couples. From their most recent statement:

Even more, the Church does not object to rights for same-sex couples regarding hospitalization and medical care, fair housing and employment rights, or probate rights, so long as these do not infringe on the integrity of the traditional family or the constitutional rights of churches.

So if it’s not about the benefits, why all the fuss? The argument put forth by the Church during this campaign (and alluded to in the statement above) is that the Church has a constitutional right to express its beliefs through its practices and they don’t want to be forced to perform gay marriages in the temple. They fear that legalizing civil marriages between gay couples will lead to lawsuits forcing the church to change its stance on gay marriage. The Church points to the Supreme Court of California who ruled earlier this year that homosexuals are a “suspect class” under the Equal Protection clause of Article I section 3(a)(4) of the California Constitution (a classification not yet afforded to gays under the Equal Protection clause of the U.S. Constitution's 14th amendment). This means that any policy that discriminates against homosexuals must have a compelling state interest or will not be allowed. The Church is afraid that this classification will prohibit them from preventing gay marriage. This reasoning is flawed for two reasons:

1) These protections apply only to places of public accommodation. The temple is not a place of public accommodation. We don’t rent it out to anybody, we don’t hold concerts there, the public is never invited to visit, and members are not even free to enter without permission. As a private space, the Church can control what happens inside, like who marries whom. We already do this. Not everybody who desires to get married in our temples (members included) is allowed to.

2) To make absolutely clear that the gay marriage controversy was limited to the granting of civil licenses only, the Supreme Court explicitly carved out a religious exemption in the above-cited case (on page 117):

Finally, affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. (the Court then cites Article I, section 4 of the California Constitution that declares the free exercise of religion right).

Does the Church not believe the Court? Possibly. It's more likely, in my opinion, that few of the Church leaders who spearheaded the 'Yes on 8' campaign ever read the Court's opinion. Legally, the Church has gained nothing from this proposition; they were already exempted from sanctifying these relationships before Prop 8. The actions of the church have prompted negative ads, on-site protests, and ill will towards the organization. Furthermore, the experience has disenfranchised a lot of members in California.