Tag Archives: California

In California, anything is possible…maybe even “Fat History Month.”

Sometimes, laws don’t make sense. They’re the result of an agenda forced on the majority by a loud and influential minority. The law doesn’t reflect good public policy, just a successful lobbying effort.

California‘s recent dictate to schools to teach the benefits of gays and lesbians to history is one such law. If people thought the Utah legislature’s micromanagement of civics lessons was a little myopic and, well, unnecessary, then this is even more so.

The state has become the first in the nation to require textbooks and history classes to cover the contributions of gay, lesbian and transgendered Americans.

A good friend of mine, known to the world by her nom de plume Salt H2O, put it sarcastically well:

As a former four eyes who was bullied for her glasses I would like to push for ‘eyesight impaired’ history. I don’t want a whole month. I’d just like it to be pointed out in text books the great people of this nation who wore corrective lenses.

Another group that should be up in arms over SB 48 are the obese. Fat kids get teased at an earlier age than homosexuals, and there are exponentially more fat people than homosexuals in our country.  We need Fat History Month to appreciate the metabolically challenged that contributed to this great country so that our fat children will not get bullied because they have a hankering for a Twinkie.

via My Soapbox: Fat History Month.

Maybe she has a point. Certainly President William Howard Taft might get a page or two in the fat metabolically challenged history book. Weighing in at well over 300 pounds when he left office, there is no doubt that he would qualify to “fit” the requirements.

But wait, you say. He’s already well reported in history. He served as President of the United States, an Ohio Supreme Court justice, a US Circuit Court judge, as Governor of the Philippines, and Secretary of War under Theodore Roosevelt, not to mention Chief Justice of the U.S. Supreme Court and the only former President to administer the oath of office to another President. He was a very accomplished man.

And he was, at 5’11” and 290 pounds when he took office, very much in the obese category.

Why must history be revised and taught according to the gender, sexuality, race, or, for that matter, weight categorization? Why not just teach the history that matters, the history that affects us, and leave it at that? Leave out the classifications that label people, and let them be what they are: humans being humans, for better or for worse.

It should not matter if that human was white, black, gay or straight, skinny or fat, male or female. If that person has affected history, teach it.

And, in the meantime, spend more time in schools focusing on the skills that actually matter and that are being forgetting in the culture wars and agendas pushed by minority groups. I’m talking math, reading, writing, and science. It won’t really matter what people think about sexual orientation if they get to college and can’t write, or read, a complete sentence…if they can get in, at all.

Enhanced by Zemanta
Advertisements

DOMA on its way to review?

District Judge Jeffrey S. White

Is a case in California setting up DOMA for overturn?

A federal judge in California has ruled that a federal appeals judge has no power to order the U.S. government to provide health benefits to the same-sex spouse of a court employee, but went on to invite a constitutional challenge to the law that mandates a denial of such benefits — the federal Defense of Marriage Act.   The judge also indicated that the challenge probably would succeed.

In other words, the appellant, a court employee seeking benefits for her partner, has the wrong procedural posture. She gets until April 15 to file an amended complaint for review of the constitutional grounds of the action preventing the benefits.

With Lambda Legal arguing the case on her behalf and praising the judges dicta that she has a “clear right to relief,” I have no doubt that the case will be amended and refiled.

Stay tuned and remember: if you can’t win at the voting booth, you might be able to win in court, instead.

Rainbow flag flapping in the wind with blue sk...

Image via Wikipedia

 

(h/t SCOTUSblog)

 

 

Prop 8 Advocates in Court Today: “Let us stand in for elected officials.”

Election results by county.

Image via Wikipedia

With California elected officials opting out of defending Proposition 8, the advocates for the successful ballot measure went to court today to argue that they should be allowed to defend it in their place.

Their brief, found here, argues that the voter initiative process depends on a legal defense in court. Lyle Denniston at SCOTUSblog summarized the arguments:

The proponents contended that the very integrity of the voter initiative process in California — a prized part of the state’s lawmaking process — depends upon having someone available to mount a defense of a measure against constitutional attack if state officials don’t do so.  Citing a string of California state court rulings, the brief asserted that their interest in protecting Proposition 8 is already clearly established.

But what injury will they face if the measure is not defended?

The Proposition 8 brief sought to anticipate that question of legal injury by contending that, with state officials on the sidelines, the measure’s backers have become “agents of the people” of the state, acting “to preserve the People’s intiaitive power….”

If no one else can take the place of state officials to defend a ballot measure from constitutional attack, the new filing contended, the state’s elected officials will have succeeded in nullifying the measure even though they have no such veto power under the state constitution or state laws.

In short, by choosing not to defend the law–passed by Californians in the Proposition 8 ballot measure–elected officials are de facto overturning the will of the people with a veto they do not hold.

Meanwhile, same-sex marriage advocates have asked the court to lift the stay imposed on the decision striking down Proposition 8 so that they can begin to marry.

 

Stay tuned.

(h/t SCOTUSblog)

Pension Reform: what’s your plan?

If New York, California, New Jersey, and Illinois were the answer a Jeopardy question, the  category might be “States that are in Trouble because of Pensions.”

On the other end of the spectrum, there’s Utah, where other states, including Montana, are starting to look for answers to the pension problems in their budgets.

Pensions, or, simply put, an “arrangement to provide people with an income when they are no longer earning a regular income from employment,” have become a major problem for states since the financial crisis. Most states funded pension plans for their employees through investment funds that were hit hard when the stock market did its nose dive in 2008. Going from fully funded in 2007 to just 70%, Utah’s pension funds were no exception. According to the Wall Street Journal, “Utah suddenly faced a long-term $6.5 billion funding gap, and the state would have had to nearly double its annual contributions out of the current budget to make up the shortfall.”

That’s a lot of money.  But it’s not nearly as bad as some other states. Take, for example, California:

During the last decade, California state government payments for retirement benefits have grown at an alarming and unsustainable rate, exceeding $5 billion a year, more than state support for the entire UC system. These huge and growing slices of the budget pie are needed to pay for average state retirement packages now valued at more than $1.2 million. The taxpayers who pay for those retirement benefits have an average of $60,000 saved for their own retirement.

Local governments are facing pension bills that are starving vital services. Faced with mounting long-term budget deficits, Mayor Antonio Villaraigosa recently told labor leaders, “The days of unsustainable pensions are over.” In 2002, Los Angeles taxpayers contributed just under $100 million to the Los Angeles City Employees’ Retirement System, and it was fully funded. Today, that taxpayer contribution is more than $400 million, and the system is underfunded by more than $2.3 billion.

Sen. Dan Liljenquist

Size is relative, though, and Utah, lead by Sen. Dan Liljenquist, took the bull by the horns. In the WSJ:

Mr. Liljenquist requested an analysis to determine the real and unvarnished financial condition of the pension fund. The state was assuming a 7.75% annual return on investment, and actuaries found that if that return fell to only 6% the system would be technically insolvent. The Utah constitution limits total state debt to 1.5% of the value of all property in the state, and the unfunded pension liability was one and a half times over that limit.

Utah’s constitution bars pension changes for current workers—short of an imminent financial crisis in the fund—so the legislature created a defined contribution plan for all new hires starting this year. The state contributes 10% of each worker’s salary (12% for public safety workers and firefighters), a generous amount by private company standards. If they wish, new workers can choose a defined benefit plan, but the state contribution to such a plan is no longer open-ended but is legally capped at 10%.

Benefits to this plan? Workers own their retirement plan, and if they leave government work, they take the plan with them. Politicians can’t raid the fund, and the move will eventually cut pension liabilities in half, which means that when economic crises loom, tax payers aren’t left holding the tab in the form of higher taxes to pay for a pension shortfall.

The Great Recession isn’t over, yet, and there are signs that it won’t be over soon. But in Utah, they’re planning and budgeting carefully, and it’s making a difference.

(h/t the WSJ and the LA Times)

Democracy and Judiciary: at odds over Proposition 8

US Federal Supreme Court
Image by riacale via Flickr

One of the interesting points about American government is the balance in the federal constitution between democratic and non-democratic institutions.  It is, as was intended, a series of checks and balances on the power of too much democracy.  The Congress, the most democratic of the countries institutions at the federal level, is limited by the power of the judiciary, which has the ability to declare laws made by the Congress unconstitutional.  And, of course, there’s the Presidency.  But that’s not the subject of our discussion.  Today we are talking about the balancing between the powers of democracy and the powers the limit democracy.

The Congress is there to represent the will of the people, one step removed from actual rule.  State legislatures, and assemblies, are the equivalent. In some states, the people are able to express their will even more directly in the form of a referendum on the ballot.  A friend of mine in Oregon tells me that the referendum process there is so out of control that the ballot, which is mailed out to every voter, is so full of different voter initiatives that it takes several hours to vote, if the voter actually reads all the material provided to educate them on the referendum. In Utah, right now there is a fight going on between the state legislature and one initiative group that is trying to push through an ethics reform package.   It can get very heated.  But that’s democracy.  Laws are proposed–either in the legislature or in the referendum process–and they are fought over and decided upon in a venue where majority rule of the people, either by representative or by public vote, establishes the law.

In order to prevent oppression of the minority, the constitution establishes a court system that is poised to prevent the majority from unjustly imposing its will upon the minority, what Alexis de Tocqueville called the “tyranny of the majority.”  The crafters of the constitution recognized that in transferring power from a king to the people there was the very real risk that the country would trade one tyrant for another, that of the masses.  In addition to filling the Constitution with various anti-majoritarian clauses to prevent the abuse of the minority by the majority, the founders established an independent judiciary whose job it was to check the power of the people.  When the masses were oppressive, it was the job of the judiciary to invalidate the law, to protect the minority against the unjust actions of the legislature or the people.

And this brings us up to Proposition 8 and Judge Walker’s ruling that the law is unjust to gays and lesbians who want to marry in the state of California, ruling that it violated several parts of the constitution.  He then decided that marriages should begin as soon as Wednesday August 18 at 5 PM.  Supporters of Proposition 8 appealed, and this afternoon a stay was granted until the 9th Circuit could rule on the appeal.

Strangely, this stay, while temporarily preventing gay marriages from beginning in California, was seen by some as a rule in their favor:

Loyola Law School professor Richard Hasen said Monday’s order was strategically advantageous for supporters of same-sex marriage, no matter how disappointed many couples may be. If

the panel had refused to place a hold on Walker’s ruling, the supporters of Proposition 8 were prepared to seek a stay from the Supreme Court. The court is believed to be divided on the question of gay marriage, with Justice Anthony Kennedy considered a swing vote. A vote on a hold might have pushed the justices into taking an early position on the question.

“I think there are strategic reasons why even the most ardent supporter of gay marriage could opt for a stay,” said Hasen, an expert on federal court stays. “The concern is that rushing things to the Supreme Court could lead to an adverse result [for supporters of gay marriage.] If this case takes another year to get to the U.S. Supreme Court, there could be more states that adopt same-sex marriage and more judicial opinions that reach that conclusion.”

Hasen said the hold “takes the heat” off Kennedy and takes the case “off the front burner for a while.”

In other words, the longer gay marriage can move through the courts, the longer it can avoid a potentially devastating ruling by the US Supreme Court.  As more states permit the marriage of gays and lesbians and as more courts overturn challenges to gay marriage, as recently happened in Massachusetts, the belief is that it will become more likely that the US Supreme Court will uphold Walker’s opinion.

But there are naysayers.  Edwin Meese, U.S. attorney general from February 1985 to August 1988,  believes that not only was Judge Walker’s opinion wrong, but it was very wrong and overturns the will of the people with out justification.  he says “Walker’s ruling is indefensible as a matter of law wholly apart from its result.”  The first place he attacks Walker’s opinion is in ignoring binding Supreme Court precedent.

Regardless of whether one agrees with the result, structurally sound opinions always confront binding legal precedent. Walker’s is a clear exception because the U.S. Supreme Court has spoken on whether a state’s refusal to authorize same-sex marriage violates the equal protection and due process clauses of the 14th Amendment. In 1972, Baker v. Nelson, a case over whether Minnesota violated the Constitution by issuing marriage licenses only to opposite-sex couples, was unanimously thrown out on the merits, for lack of a substantial federal question. The Supreme Court’s action establishes a binding precedent in favor of Proposition 8. But Judge Walker’s ruling doesn’t mention Baker, much less attempt to distinguish it or accept its findings.

Indeed, this is a path that is often cited as taken by judges who are seeking to obtain a certain policy.  They see the justice in what they are trying to obtain as a result, and to that end, their opinions cite persuasive evidence to an end.

But Meese takes issue with Judge Walker’s evidence, as well:

Walker’s opinion pretends that the voluminous evidence introduced on the side of Proposition 8 does not exist. It neither acknowledges nor attempts to distinguish the writings of renowned scholars presented at trial in support of Proposition 8, including that of anthropologist Claude Levi-Strauss, history professor Robina Quale and social scientist Kingsley Davis. It ignores the writings of legal giant William Blackstone and philosophers John Locke and Bertrand Russell. It even refused to address the fact that Congress, in the 1996 Defense of Marriage Act, defined marriage as the “legal union between one man and one woman as husband and wife.”

Despite ample evidence introduced into the record that only a union of a man and woman can produce offspring (as if that needs proof), Walker’s opinion denied the relevance of that biological fact. That difference has been the main reason civilization recognized the uniqueness of marriage as between a man and woman, and why courts have repeatedly relied on that common-sense truth.

Despite voluminous evidence and common sense pointing to the contrary, the judge also declared that opposite sexes were never part of the “historical core of the institution of marriage”; “evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different than opposite-sex couples”; traditional marriage is an “artifact”; and, also without reference to the monumental evidence to the contrary, that it is beyond “any doubt that parents’ genders are irrelevant to children’s developmental outcomes.”

And this returns us to the balance between democracy and the judiciary.  Even the judiciary, when acting outside of the law, can be tyrannical in imposing a law on the people that is either unjust, undemocratic, or not their right to impose.  Judge Walker, by Meese’s estimation, has claimed that Proposition 8 imposed a private morality on a small group of people–essentially claiming that the majority is tyrannizing the minority.  Meese does not agree.  Whether or not we want to allow gay marriage is up for debate, but it is not an issue for one man, he says:

Having ignored everything courts typically rely on in making sound judgments, Walker concluded that Proposition 8 was enacted “without reason” and demonstrates “a private moral view that same-sex couples are inferior to opposite-sex couples [and are] . . . not as good as opposite-sex couples.” Nothing in Proposition 8 supports such conclusions, particularly since California law grants same-sex couples all the benefits and protections that apply in traditional marriage.

People can differ on whether, as a matter of policy, states should allow same-sex marriage. The robust debate on that topic should not be short-circuited by judicial fiat.

Yet, according to the federal district court, Americans such as President Obama, Vice President Biden, Secretary of State Hillary Clinton, the majority of members of Congress and the 7 million Californians who voted for Proposition 8 are all bigots who have “no rational reason” to oppose gay marriage.