Legislating Bigotry - Voting against Proposition 8

November 4th will be a date to be remembered in many respects. The United States will elect its first African-American President or its first female Vice-President. But it will also be remembered as the election where the people of California were given the chance to support the right of same-sex couples to marry or to support a constitutional amendment that would overturn the Supreme Court of California's decision in In re Marriage Cases, 183 P.3d 384 (2008) granting same-sex marriages under the state constitution.

The original proposed language of Proposition 8 read:

LIMIT ON MARRIAGE. CONSTITUTIONAL AMENDMENT. Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: The measure would have no fiscal effect on state or local governments. This is because there would be no change to the manner in which marriages are currently recognized by the state

The language was changed by the Attorney-General of California to read as follows:

ELIMINATES RIGHT OF SAME-SEX COUPLES TO MARRY. INITIATIVE CONSTITUTIONAL AMENDMENT. Changes the California Constitution to eliminate the right of same-sex couples to marry in California. Provides that only marriage between a man and a woman is valid or recognized in California. Fiscal Impact: Over next few years, potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact on state and local governments.

The altered language accurately reflects the import and weight of what Californians are about to engage in. It is not just about defining the legal definition of marriage (which the original language suggests), but it is about destroying a right, a total deprivation.

What is frightening about this mechanism is the possibility of a majority possibly depriving a minority of a constitutional right through a mere vote. If successful, this may prompt litigation (at some point) to test whether such a constitutional amendment to the state constitution may violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. At this stage, it is not entirely clear that the U.S. Supreme Court would find such an amendment to violate the Equal Protection under the U.S. Constitution.

In an earlier decision, Romer v. Evans, 517 U.S. 620 (1996), the U.S. Supreme Court struck down a Colorado state constitutional amendment, endorsed by the state's voters that effectively stripped homosexuals of legal protections against discrimination on the basis of their sexual orientation. The amendment read:

Neither the state of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of, or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

The Court viewed the amendment as (not surprisingly) violating the equal protection rights of a class of individuals: homosexuals. The amendment was not even sufficient to be considered rationally related to a legitimate government purpose - the lowest standard of scrutiny that the Court applies. Whether the Court, as presently constituted, would rule the same way as it did in Romer is not all that certain given that the deprivation was far reaching in Romer. The question is, whether the Court would see depriving same-sex couples the right to marry goes that far.

What I think is important for California voters and particularly minority voters (Latino-Latina Americans, African-Americans and Asian-Americans) to strongly consider is the sheer bigotry that underlines Proposition 8. Many racial minorities have had experiences being targeted at some point for discrimination and being excluded (as have White Americans). Here is their chance to not perpetrate the same bigotry on another minority. We are all members of a majority or minority depending on how we define such concepts (i.e. race, nationality, religion, gender etc.) The majority of these racial minorities form part of a heterosexual majority and have the opportunity to respect the recognized right to marry by another minority. In California, Asian-Americans are particularly aware of discriminatory policies that have been aimed against them in United States history. African-Americans were once prohibited in certain states from marrying White Americans. In the case of the latter, these discriminatory norms were ushered out by judicial decisions much the same way that the California Supreme Court did earlier this year. Now imagine that the voting population decided to overturn those decisions by a majoritarian vote. We would not hesitate to denounce such a notion were such deprivations based on race.

So when does it become time to recognize the rights of same-sex couples? California voters have the opportunity to do what is right or they can shame themselves.

Living in the Age of That One

This isn't a year to be a standard politician or political party leader. Particularly when we're living, as we do, in the era of That One - a.k.a. Democratic United States Senator Barack Obama (D-Ill) and Democratic Party candidate for President. Beginning with his 2004 Keynote Address before the Democratic National Convention in Boston, Senator Obama established himself as an orator-extraordinaire rivalling even Bill Clinton. Although Obama's debating skills had previously left something to be desired, it seems like he has mastered that one as evidenced by his recent jousts with Senator McCain. His ability to connect has brought so many voters, new and old, Democrat, Republican and independent to his side. The longer lines at the early voting stations and the excitement to be able to vote for him illustrates, in part, this trend.

Contrast that with elections recently held in Canada where voter turnout was lower than normal. During the English-language Canadian party leaders' debate, the moderator Steve Paikin had to admonish the leaders from talking over each other lest viewers get frustrated and switch the channel to watch the (presumably more entertaining) Biden-Palin debate being telecast that same evening instead of theirs. Imagine a U.S. Vice Presidential debate catching more Canadian interest than the debate amongst a group, one of whom would become the next Prime Minister of Canada. Well at least this year, perhaps not so difficult.

The reality is, and this goes back, in part, to living in the Age of Obama - the leaders of political parties across the world, including in Canada and Britain, as well as the head of the Republican Party in the United States, don't excite the public in quite the same way. Perhaps they don't aspire to be, but they are not transformational figures who enliven the public to take interest in who is leading their government. Senator McCain's campaign was kick started by the selection of Governor Palin as his Vice Presidential running mate. But recent polls suggest that while the GOP base is still high on the candy that she represents, many others in the public, including Republicans, are feeling a little ill from all the sugar.

Maybe there is only enough space for one Obama at a time, but I have to believe that rather than merely trying to rip Obama apart by calling him un-American, (and there are fair areas related to policy to disagree with him on whether you are on the left or right), this is a call to individual politicians to rise to the occasion and do their best to get out their inner orator.

Obama's appeal though doesn't just rest as a splendid orator and/or hope-monger, it's also as an intellectual. Someone who makes being a thinker look good again. Of course this isn't difficult given what the lack of a keen mind has done to the United States under the Bush Presidency, or as exemplified by Governor Palin. I don't mean to say that they are not nice people one-on-one (they may be), but I think we have come to realize (even though it should have been obvious already) that we need smart people running the government, any government, and not people who aspire to the lowest common denominator who think becoming/voting for a president is akin to electing some one to lead a Joe Six-Pack beer-guzzling fraternity.

Being an intellectual, I should stress doesn't mean, strictly speaking, holding several graduate degrees. It's about having an intellectual curiosity and analytical mind to process information. One of my closest friends chose not to pursue studies beyond essentially a community college level, yet he has a curiosity and interest in what is happening in the world. He is an intelligent person who is interested in learning but chooses to do it outside the realm of academia. What is important is that thirst to learn, as a life long endeavor.

What I hope is that in the age of "That One", that some of his dust will fall onto other politicians and would-be politicians about the necessity to be smart, policy-oriented individuals who can also communicate in an engaging manner. The bar has been set high.

Knowing your Role

It seems as though the Republican National Committee (RNC) has opted for style over substance. In a recent Politico report, the RNC has spent $150,000.00 on Republican Vice Presidential candidate, Governor Sarah Palin and her family's wardrobe - http://www.politico.com/news/stories/1008/14805.html

Where's the lack of substance that good money might have paid for? Well, it seems that Governor Palin seems to (still?) misunderstand the role of the Vice President with respect to the United States Senate. According to the Governor, Vice Presidents are "in charge of the U.S. Senate so if they want to they can really get in there with the senators and make a lot of good policy changes that will make life better...."

Here's what Article I of the Constitution says about the matter: "The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided."

No where in the Constitution is it suggested that the Vice President shall have a role in forging "good policy", "bad policy" or any policy. If she wanted to have a direct part in forming policy, she should have finagled the U.S. Senate seat presently held by the embattled Senator Ted Stevens of the state of Alaska.

How could the RNC spend their money better? Well for starters, they ought to consider perhaps spending money and hire a constitutional law scholar to tutor, if not intensively home school the Governor on the constitutional law that governs the United States and sets out the limits of the Vice Presidency; the position she aspires to be hired for by the American voters.

The Colin Factor

Former United States Secretary of State, General Colin Powell (Ret.) endorsed Senator Obama's campaign to become President of the United States on Meet the Press yesterday. The significance/irrelevance of the endorsement will be debated (and it has already begun) over the next two-three days - both in terms of the substance and the reasons that Powell provided and what it will mean vis-a-vis influencing voters, particularly individuals in the military and/or fellow Republicans.

There was one component of General Powell's endorsement that has however stayed in my mind, as it certainly has for many others. Powell drew attention to the persistent allegations that have been levelled against Obama, specifically, that he is a Muslim. While Powell repeated (as others have) that the correct response was obviously that Obama was a Christian, the larger point was - so what if Obama were a Muslim?

Powell was identifying the inherent bigotry that identifying Obama as a Muslim was intended to engender. In support of his argument about the loyalty of Muslim Americans, Powell has noted a photo essay which depicted a mother resting her face atop her son's grave stone at Arlington National Cemetery with a crescent moon inscribed on the stone indicating the soldier's faith. He emphasized that the soldier was an American citizen and born in New Jersey. Powell's point was that Muslims are part of the nation's military and were in it to defend their country just as others have. And perhaps more fundamentally, that they too were good American citizens - loyal and patriotic.

This is something that neither campaign has seemed to be willing to express, or if they have, they fail to do so in any prolific or sustained manner. Obama's campaign seems unable or hesistant to engage in this, perhaps for fear that he will be branded a Muslim/Arab sympathizer (as though again reaching out to and/or defending Arab and/or Muslim Americans was a bad thing). Senator McCain defended Obama against those who would accuse him of being an Arab by addressing the fact that Obama is a "decent family man", and "a citizen".

Powell, through his statements on this issue will hopefully encourage others, preferably in both parties to be more empathetic in defence of a visible minority than what we have witnessed so far.

Fierce Urgency of Equivalency

In the past couple of weeks, the public has seen some ugly footage emanating from the McCain campaign. I don't mean from the campaign itself (although some, if not many of the things that do come from the talking heads of the campaign warrant serious rebuke), but from those attending.

Now Senator McCain may not share the views of (some of) the hysterical people that populate his audiences. Certainly he should not be found guilty of mere association, least of all by mere virtue of their mere attendance. He can't control what people at his political events think. But it can't be but a little disheartening that his rallies seem to be the gathering grounds for the hysterical and the unhinged. No, and let me be emphatic here, not all of McCain's supporters fit this description, but it's hard to believe that it is not more than just a few.

To McCain's credit, when faced with those comments directly, for example, the lady who didn't trust Obama because she believed he was an Arab, he set the record straight. Obama was a decent family man and a citizen - although it's unclear whether McCain believes that Arabs are also decent family folks and in the case of Arab-Americans - decent family people and decent American citizens (James Zogby, an Arab-American had some thoughts on the matter http://www.huffingtonpost.com/james-zogby/john-mccain-i-am-an-arab_b_133884.html).

At the most recent Presidential debate, Senator McCain took his Democratic rival to task for not having denounced some of rhetoric emerging from the crowds in the latter's campaign. I am curious, which out of step fringe-esque remarks is Arizona senator referring to? Would it be the "Boos"? In recent days, Obama would often tell his audiences, no we don't need that, we just need to vote.

McCain has tried to minimize the impact of these unsavoury crowd remarks at his rallies, by using the metaphors of minimization - fringe elements, or to quote Charles Krauthammer "a couple of agitated yahoos".
http://www.washingtonpost.com/wp-dyn/content/article/2008/10/16/AR2008101603182.html?hpid=opinionsbox1

The problem is, we are not just speaking about a few deranged individuals or a couple of agitated yahoos, who yell out some stray incendiary comments. Perhaps Senator McCain or Mr. Krauthammer haven't had an opportunity to see the footage, but others have documented some of the daintier remarks directed at Senator Obama (or people who have supported him) from individuals attending McCain and/or Palin rallies. See for example:

1. http://www.youtube.com/watch?v=zRqcfqiXCX0&eurl=http://crooksandliars.com/david-neiwert/mccainpalin-supporters-let-their-rac

2. http://www.youtube.com/watch?v=KjxzmaXAg9E&eurl=http://bloggerinterrupted.com/2008/10/video-the-mccain-palin-mob-in-strongsville-ohio

3. http://www.youtube.com/watch?v=itEucdhf4Us&feature=related

The fierce urgency of equivalency suggests that we should equate the hate and hysteria exhibited by the comments of these "supporters" with the "boos" that come from Obama rallies for McCain. It takes a coronary- producing dollop of immense nonsense to even imagine that the "things said at Obama rallies" come within the same galaxy.

We should also recall that these types of angry and vitriolic remarks are not reserved only for Obama, but have been directed at conservative writers such as Christopher Buckley and Kathleen Parker, the former for endorsing Obama (http://www.thedailybeast.com/blogs-and-stories/2008-10-14/sorry-dad-i-was-fired/) and the latter for eventually questioning the choice of Governor Sarah Palin as the GOP Vice-Presidential pick (http://www.washingtonpost.com/wp-dyn/content/article/2008/09/26/AR2008092603268.html). Ms. Parker was even "rudely" (an understatement to say the least) told in one e-mail that she should have been aborted by her mother for daring to criticize Senator McCain's choice of Governor Palin. (http://www.washingtonpost.com/wp-dyn/content/article/2008/09/30/AR2008093002315.html).

McCain has the unenviable position of running in an election where Republicans are roundly unpopular, largely due to the policies of the Bush Administration, which he has supported so greatly. He also has the undesirable position of being the practical choice for the xenophobic elements of American society that see Obama as evil incarnate, even if he doesn't himself share those views and has been explicit in saying so.