Phil Reese

What will President Obama do about that pesky federal Prop 8 suit?

Filed By Phil Reese | November 19, 2009 6:30 PM | comments

Filed in: Politics
Tags: California, Department of Justice, DOJ, president obama, Prop. 8, White House

While the federal Proposition 8 lawsuit continues its battle in federal court, leaders in the LGBT community are casting a suspicious eye on the White House, asking whether or not our 'fierce advocate' up there is going to come to our aide when thousands of same-sex couples in California most need him.

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The argument that the Department of Justice used to defend their defense of DOMA in federal court was that they have a duty to defend federal law. Well, this may or may not be true--certainly, there is a lot of credible evidence supporting that this would be correct protocol for any non-dictator President. However, Prop 8 is state law, not federal law--if the Department of Justice chose to file a brief in the case, they would be free to take whichever side they chose, and certainly take side against the law: as Bush's DOJ did on many occasions.

President Obama will, in all likeliness, not actually weigh in on this minefield, however.

EqCA is pushing a petition to pressure the President to file a brief against the discriminatory law, using the disappointing outcome of Question One in Maine as an enticement to get people to sign. Both propositions should be offensive to all Americans, but I'm not sure I feel comfortable with this bait and switch: talking about Maine to get folks to sign a petition for California? I'm all for repealing Prop 8, but I fail to see where Maine folks are directly benefiting from these measures, and I'm uncomfortable that it seems all these efforts seem to be milking disappointment over Question One's loss for Equality California's efforts. If this is about California, then please tell us about California.

Geoff Kors, executive director of Equality California even took his message to the Huffington Post, once again opening with lots of platitudes about the devastated families in Maine to lead folks down the page to support a bunch of California-only measures. Certainly, however, after the Maine-heavy introduction, the focus of this piece is much more tastefully on California than the petition webpage had been.

Kors' message that the President ought to file a brief in support of the suit against Proposition 8, however, is a viable assertion. Kors makes some incredibly valid points about how government entities have often stepped in and did the right thing when voters get caught up in a frenzy and try to pass less than fair laws:

"For instance, the courts stepped in when California voters tried to repeal protections against housing discrimination based on race and tried to strip the children of undocumented workers of health care and education. The courts stepped in when Colorado voters tried to repeal protections from discrimination based on sexual orientation and prevent the legislature from enacting laws in the future to protect gay people.

Why? Because the majority does not have the right under the United States Constitution to overturn laws providing equality to a protected minority group and deny the legislative and judicial branches their right -- and obligation -- to enact such laws. Period. End of story."

The Administration is free to buck the status quo, here, and actually make a bold stand for equality by openly condemning Proposition 8 in court. This could be dangerous for a reelection, certainly, as the President would definitely need to carry California in the future to maintain the White House. However, I hope the President takes the risk and takes a stand. So many LGBT people are counting on him to follow through and be a different, gutsy politician, as he promised us he would be.

I also think that taking such a stand would force vocal critics like the boys at Americablog to go find someone else to pick on, like maybe the "blue dog" democrats.


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I doubt he intervenes. He doesn't have the courage. :(

Oh, Bil, always nay-saying...


...but you're probably right. :-)

Crab @ Israel | November 20, 2009 9:03 AM

I like the Proposition 8, because I cannot imagine a child growing in family of two men or women. I think, that this child would also become a sexual minority.

Oh that's right! Like straight people never raise gay kids!


What did Prop 8 have to do with that? I doesn't outlaw gay adoption. That's still totally legal in California. I hope you don't have the ability to vote, because I do think at minimum one ought to have a brain first before they can register. Just as a minimum threshold to shoot for.

PS, I know that the independent studies you do completely in your own pea brain probably disagree, but REAL research (you know, by researchers. with brains) shows that gays and lesbians raise gay and lesbian kids at the exact same rate as straight parents.

Hey Crab, generally when debating something, you stick to arguments that are germane to the question at hand. Gay adoption is a very different issue than gay marriage. They're certainly tied together, but as Phil said, gay adoption is already legal in California. We're talking about marriage now.

I believe your point is moot anyway. The government's role is to protect our rights, not coddle us into only doing what's "safe." Certainly children raised by same-sex couples will have a more difficult path, but that's a function of our current culture, not anything inherent to same-sex parenting.

Also, I find Phil's response to be just as immature as the claptrap we see from the neocons.

"I like the Proposition 8, because I cannot imagine a child growing in family of two men or women."

http://en.wikipedia.org/wiki/Argument_from_Ignorance

There are children with gay parents all over the country. They exist whether you can imagine them or not. The question is: Will we give these parents the same status as straight ones? And by extension give their children the same validation? (This has nothing to do with adoption--gay couples can have children without adopting. It's not just straight people that go to fertility clinics.) Kind of funny how anti-equality advocates keep shouting "Think of the children!" while never actually thinking about the children.

The federal suit challanges Prop 8 on federal constitutional equal protection grounds; it would seem to me that since California already has a civil union statute that provides state rights and benefits that are "marriage in all but the name", the suit necessarily has to say that denying full equivalancy including name violates the federal equal protection clause.

That's a tall order given the current SCOTUS makeup, much less for the Obama Justice Department to be expected to join in.

However, it would seem a bit more likely that the Supreme Court might buy an equal protection argument that states, by whatever name, have to afford the same rights to same-sex couples as to opposite sex ones. Somewhat like the decision in Vermont, etc.

I know many folks in our commnity find that a demonic halfway measure, but what would be wrong in at least urging the Justice Department to consider taking that position?

The federal suit challanges Prop 8 on federal constitutional equal protection grounds; it would seem to me that since California already has a civil union statute that provides state rights and benefits that are "marriage in all but the name", the suit necessarily has to say that denying full equivalancy including name violates the federal equal protection clause.

That's a tall order given the current SCOTUS makeup, much less for the Obama Justice Department to be expected to join in.

However, it would seem a bit more likely that the Supreme Court might buy an equal protection argument that states, by whatever name, have to afford the same rights to same-sex couples as to opposite sex ones. Somewhat like the decision in Vermont, etc.

I know many folks in our commnity find that a demonic halfway measure, but what would be wrong in at least urging the Justice Department to consider taking that position?

Privately, I think Obama would love a challenge to Proposition 8 like this. I mean, Obama has said that he is opposed to amending constitutions in the manner that Proposition 8 does (even if he did a split screen "anti-gay marriage/anti-Prop8)so it's conceivable that he could.

Politically, as Bil says, he doesn't have the courage.

"President Obama will, in all likeliness, not actually weigh in on this minefield, however."

Why is this issue a "minefield"? Obama ran a campaign and won on our issues of equality. Our issues are not politically risky. Stop feeding that false argument. Don't we have enough exagerated propaganda from our opponents? News flash- civilization as we know it will continue long after full LGBT equality. It's a non-issue.

If you need an issue and 'minefield'- it's navigating thru the lies and distortions of the opposition, not our equality.

What Geoff Kors says here is factually incorrect:

"For instance, the courts stepped in when California voters tried to repeal protections against housing discrimination based on race and tried to strip the children of undocumented workers of health care and education. The courts stepped in when Colorado voters tried to repeal protections from discrimination based on sexual orientation and prevent the legislature from enacting laws in the future to protect gay people.

Why? Because the majority does not have the right under the United States Constitution to overturn laws providing equality to a protected minority group and deny the legislative and judicial branches their right -- and obligation -- to enact such laws. Period. End of story."

Well, no, that's not the end of the story.

The first ballot initiative that he mentioned - Prop 187 to take rights away from undocumented workers' children - was overturned because the health care portion of it violated federal immigration law, creating a federalism question, and the education part of it violated the kids' Constitutional right to K-12 education. There is no Constitutional right to same-sex marriage, currently. Prop 187 wasn't overturned because the majority doesn't have the right to take away minorities' rights.

The second ballot initiative that he mentioned - Prop 14 back in 1964 to explicitly grant a constitutional right to discriminate based on race, specifically in housing - was overturned because it violated equal protection in California's Constitution. Federal court only upheld the California Supreme Court's right to do that. If we wanted to follow that path, then we already lost because the California Supreme Court is not with us.

The last one he mentions - Colorado's Amendment 2 which banned local governments from passing gay anti-discrimination law - was indeed overturned by the Supreme Court in our first Supreme Court win, Romer v. Evans. But it wasn't because people don't have a right to vote on other people's rights. On the contrary, the right discussed in Amendment 2, that of anti-discrimination laws, still are neither a reality nor a "right" in most of America. Instead, the Court decided that Amendment 2 took away certain First Amendment rights from gay and lesbian people, namely the right to seek anti-discrimination legislation at the local level. It impeded gay and lesbian participation in the political process, and that participation was already deemed a Constitutional right. Same-sex marriage isn't.

Anyway, all that's to say that this case is an uphill battle. I don't really know of any Supreme Court case that ruled that a majority can't vote to take away a minority's rights if said rights aren't already established as federally-protected rights. At some point, it seems, they're going to have to get the Supreme Court to agree that there's a Constitutional right to same-sex marriage, and that just isn't going to happen with its current make-up.

T2inDC - Obama specifically campaigned on his opposition to same-sex marriage as well. Yeah, he was against Prop 8, but his overall stance on same-sex marriage was opposition, so much that his words on the topic were used in ads to help pass Prop 8. For him, this is still risky. And considering that a majority of Americans still don't support us in this arena, I think there is a risk. One he should take, but probably won't.