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.This is ridiculous, and I have to wonder if this is a way of ensuring this will go to SCOTUS – which it will anyway. Are we now going to be able to demand all communications by all ballot measure proponents? What matters is what a law says – especially in relation to other laws, chiefly the federal Constitution. It doesn't matter if the backers thought this would turn the moon plaid. The only time the intent of the writers should be considered is in determining how to apply the amendment - not whether or not it should be there.
[More after the jump.]
"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.
Nonsense. Just like it doesn't matter if the motivation of backers of Harvey Milk Day really just want to make life better for Sean Penn, to the detriment of other actors. What matters is whether or not a law or resolution for Harvey Milk Day is adopted or not. The California Marriage Amedment was duly adopted. It treats men and women, regardless of sexual orientation, the same.
These people are really desperate, and their willing to trample all over the law, even a state constitution, to get what they want.
The initiative, approved by 52 percent of the voters, overturned the state Supreme Court's May 2008 ruling that gave gays and lesbians the right to marry in California.Wrong - it mandated that the state license as marriage any same sex pairing that requests it – regardless of the sexual orientation of the participants – except to people who are already married to others or are close relatives, of course.
Although "voters cannot be asked to explain their votes," Walker said, a ballot measure's authors and strategists can be scrutinized to see what their motives were.Why? This is thought-police territory.
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."Well yeah, isn't that likely part of their motivation in all of this? To discourage us from standing up for ourselves when they have managed to browbeat legislators and judges to their activist agenda that serves very few people?"This will make any citizen group think twice before attempting a ballot initiative," Pugno said.
"What matters is what a law says – especially in relation to other laws, chiefly the federal Constitution. It doesn't matter if the backers thought this would turn the moon plaid. The only time the intent of the writers should be considered is in determining how to apply the amendment - not whether or not it should be there. "
ReplyDeleteActually, this is completely wrong. The Lemon test for example, which is used to assess Establishment Clause violations, takes into account the purpose of a law or government action in determining whether or not it should be struck down. More to the point, the Supreme Court has been looking at discriminatory intent when considering Equal Protection Clause cases for decades. To quote Justice Powell: "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause."
I suggest you actually read up a bit on constitutional law before you spout out baldly false assertions like this.
To start with Playful's point, I have to add that I think its a witch hunt -- and more. No two ways about it, Ax. I think that the NO on 8 campaign is flabbergasted at how successful the Yes campaign was on less money and a deficit in the polling going into the fight. I think this is more of a fishing expedition to try to gain intelligence on their strategy then anything else.
ReplyDeleteYou can't reasonably assert with the protection of the fifth amendments that the desperate need for evidence to find a violation really mean there is free license or even cause to go looking for it. Playful is right, that is simply a problematic way of dealing with the popular referendums. Who's next, the populous that voted for it in the first place?
Your case conjecture is also problematic,
Lemon v Kurtzman looks at the application of the law, not the intent. The Lemon test is described as:
1. The government's action must have a secular legislative purpose;
2. The government's action must not have the primary effect of either advancing or inhibiting religion;
3. The government's action must not result in an "excessive government entanglement" with religion.
That is a pretty good near-quote of Justic Bergman. This test, in all three of its measures, is based on outcome and not intent.
Perhaps you had a case in mind you wanted us to see where the Lemon test invited the scouring of private strategic documents behind the creation of a statute? Where it invited a witch hunt for religious influence? The fact that Bergmen requires an "excessive" entanglement means that finding someone with religious prejudice behind a law is not enough. It is expected that such entanglement excessive enough that the entanglement is seen on the face of it, as it was with the case the ruling came from.
In Arlington Heights v. Metropolitan Housing Corp., Justice Powell did not evoke the requirement of proof as a reason to go on a witch hunt to lower the bar for the use of the Equal Protection clause. It was just the opposite, to specifically limit the use of equal protection clause to go after any circumstance with an outcome that people would consider as unequal. Asking for proof of intent was raising the bar, not lowering it. It was crippling the EQ clause as a witch hunt tool, not enforcing it.
Perhaps we could all read up a bit on constitutional law before spouting bad false assertions, however the point here is that if Playful was wrong as you say, you wouldn't know it from the cases you pointed to.
But in a case of law where some people including court Justices (I believe you would count yourself in this group) find the expectation of equal gender representation in each marriage is evidence of prejudice towards gays, I wonder at just how over-sensitive a trigger could be in the hands of a judge.
I do not trust that a judge who already feels that way on this issue could look at any discussion on the subject without having that trigger go off. It had already gone off, which is just another way of saying that the judges who disagree with Prop 8 are already prejudiced in that aspect of the law.
Ax - One problem with this approach is that it drives the law toward declaring reasonable opposition to any measure a matter of hate.
ReplyDeleteTo invalidate a law one only has to pretend that the opposition are a bunch of bigots.
Please read this article by Steven D. Smith --Warren Distinguished Professor of Law at the University of San Diego and the author of Law’s Quandary (Harvard University Press, 2004).
http://www.firstthings.com/article/2007/01/conciliating-hatred--2#
This approach is contrary to the democratic deliberation and conciliation at the heart of civic engagement and ensuring domestic tranquility.
"Lemon v Kurtzman looks at the application of the law, not the intent. [...] This test, in all three of its measures, is based on outcome and not intent."
ReplyDeleteI invite you to read the first prong of the test again.
"Perhaps you had a case in mind you wanted us to see where the Lemon test invited the scouring of private strategic documents behind the creation of a statute?"
Why yes. Look up Kitzmiller v. Dover Area School District, specifically the testimony of Barbara Forrest. For example, see how the "Wedge document" (which is very clearly a private, strategic document) was pivotal in that case.
"The fact that Bergmen requires an "excessive" entanglement means that finding someone with religious prejudice behind a law is not enough."
Actually, no. A violation of any one of the three prongs of the Lemon test is sufficient to deem a governmental action unconstitutional.
Furthermore, I never mentioned witch hunts. My point was simply that intent can and often does matter in deciding whether or not something is unconstitutional, and that Playful Walrus's assertion was therefore false. If you accept that the Arlington Heights case is a relevant precedent, that you effectively concede that my point is indeed correct.
"To invalidate a law one only has to pretend that the opposition are a bunch of bigots."
Not just pretend. They'd have to prove it, and show how that discriminatory intent is manifested in the law in question.
Me: >> "Perhaps you had a case in mind you wanted us to see where the Lemon test invited the scouring of private strategic documents behind the creation of a statute?"
ReplyDeleteAx: > "Why yes. Look up Kitzmiller v. Dover Area School District, specifically the testimony of Barbara Forrest. For example, see how the "Wedge document" (which is very clearly a private, strategic document) was pivotal in that case."
Two very questionable conjectures there. First, you contend that the wedge document was pivotal, and second that it was a private strategic document that the court used at all in its decision.
It may have been a private strategy document at one time, but for sake of relevance to Playful's statement above, at the time of the trial it was a public document. Forrest had already published a conspiracy theory using that as well as other documents made public before that date.
Its relevance to the case (or anything of any importance) is even dubious. In fact, it seems Forrest had no reason to believe the school board members in question had even read the document. Also the findings of the court mentioned that the purpose was obvious...
For the reasons that follow, we conclude that the religious nature of ID would be readily apparent to an objective observer, adult or child. [(Kitzmiller v Dover Area School District, et. al.; page 24)]
Apparent even without any elite detective minds teasing out evidence of vast religious conspiracies.
Ax: > A violation of any one of the three prongs of the Lemon test is sufficient to deem a governmental action unconstitutional.
Actually, that isn't true. Violations of the first statement alone have not shown to be enough. The law in practice has relied on how the first two stack up and are measured by the third. In fact, many see the Endorsement Test (which was also referenced in the decision) is often used as the minimum practical formulation of the Lemon Test. And it is simply a more direct version of the third. The first point has two real problems in being a real test of law....
1) It doesn't, for instance, remove laws about murder because a number of religious documents claim murder is bad. It does not give the court license to sanitize any and all laws of any and all religious purposes. In the case you mentioned, they could find no scientific purpose (the standard of secularist instruction used by both sides) behind ID instruction, not that they found a document that was evidence of religious purpose:
After a searching review of the record and applicable caselaw, we find that while ID arguments may be true, a proposition on which the Court takes no position, ID is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (1) ID violates the centuries-old ground rules of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980's; and (3) ID's negative attacks on evolution have been refuted by the scientific community. [(Kitzmiller v Dover Area School District, et. al.; page 64)]
2) All it can suggest is that a law must have a purpose (which is determined as expected outcome) which is recognizable outside of any religions doctrine. Anything contrary to this shows up more readily to the courts eyes as entanglement, and is always outlined as such. It was this parallel which provided the real thrust (if you ask me) of the failure of the Lemon and Endorecement Tests.
We have concluded that it is not [science], and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents.[(Kitzmiller v Dover Area School District, et. al.; Conclusion)]
Furthermore, I never mentioned witch hunts.
ReplyDeleteI never said you were that open and honest in disclosure of what was going on, either.
My point was simply that intent can and often does matter in deciding whether or not something is unconstitutional
And my point is simply that your justification for that statement is based on flawed a understanding.
If you accept that the Arlington Heights case is a relevant precedent, that you effectively concede that my point is indeed correct.
Actually, I don't accept that Kitzmiller v Dover is relevant precedent. And I also argue that even if one thinks it is precedent, it clearly shows an outcome based decision process to determine intent. Not a witch hunt of seeking intent to over-rule the actual process of the law.
Or in other words, it does not justify a witch hunt based search through private documents to justify an assumption of guilt that needs to be exhaustively proven to be innocent. Such is my opinion (and I be the opinion of Playful) in the case he brought up.
They'd have to prove it, and show how that discriminatory intent is manifested in the law in question. -- emphasis mine.
Which is, believe it or not, what I read Playful as saying also. It also agrees (as I read it) with what I just wrote.
By the way Fitz, excellent article!
ReplyDeleteI think it does the double duty of finding the nail, and throwing the head of the hammer, as to completely nailing the issue we are discussing here.
There probably would be no better disservice rendered then if we were to ignore that article only to argue amongst ourselves.
Do you want to post it to the front page? Also, I didn't find it in our resources. But if it is there I apologize...