Civil Rights

That is a question that the California State Supreme Court will now grapple with as the court decided last week to rule on whether sponsors of ballot initiatives have special authority under state law to defend the measures in court when state officials refuse to do so.

Last month, the 9th Circuit Court of Appeals asked the California Supreme Court to weigh in on the decision of standing.

People will have to forgive me for weighing in on Egypt and the essentially bloodless revolution.  I have two points and both of them link well to local issues.

The people of Egypt brought down a long and at times brutal tyranny armed only with their voices.  They achieved their objective in 18 days primarily because they could not be mollified by promises of incremental change and partly because the military refused to turn on the people of Egypt as militaries have in places like China’s Tiananmen Square.

“An individual has not started living fully until they can rise above the narrow confines of individualistic concerns to the broader concerns of humanity….Every person must decide, at some point, whether they will walk in the light of creative altruism or in the darkness of destructive selfishness.”  – Dr. Martin Luther King Jr.

As Americans, we gather today across the nation to honor the power of peaceful resistance and the courage of civil discourse.  Although our hearts are still heavy from the tragedy unleashed in Tucson on January 8, reflection and calm have begun to replace the chaos that engulfed us just a week ago.

The story, however, begins nearly 16 years ago. On April 19, 1995, I was a four year student at Cal Poly.  I was sitting in my philosophy case, and someone walked in and said that there had been a bombing in Oklahoma City.  We surmised it must be Islamic terrorists.  I remember early reports of seeing known Islamic extremists around the site.

It is a great irony of democracy that some of the most contentious issues will be decided in part by electoral races that few were following closely.  Yet that is precisely what may happen with the closely-contested and just-concluded California Attorney General’s race, where Kamala Harris edged out the Republican District Attorney from Los Angeles, Steve Cooley.

Mr. Cooley, unlike the current occupant Jerry Brown and unlike his opponent Ms. Harris, vowed to defend the ballot measure, Propostion 8, that was passed by the voters in 2008.  Kamala Harris prevailed and has vowed to continue the now-Governor-elect Brown’s policies.

As I approach 40 in the next few years, I am reminded of something I learned during my teen and early twenty years, how out of touch older adults are to popular culture.  In another lifetime, I used to have a period column during my days in undergraduate school, devoted to such topics.

I always swore that I would never make the same mistakes and I always admired the adults that could still relate to younger people.  I bring this up in light of watching Bristol Palin’s rather awkward pitch for abstinence alongside Mike Sorrentino, who is himself a bit of an icon on MTV’s reality show, “Jersey Shore.”

Yesterday marked the ninth anniversary of the attacks on 9/11.  Like most people in this country, I have very vivid memories of 9/11.  I rushed off to the old 24 Hour Fitness over on Second Street to meet up with my personal trainer.  When I got there I was shocked to learn that Cecilia (we would not be married until the next summer) was on the phone calling for me.  As she was trying frantically to explain that we had been attacked, I caught the TV screen and there was something not right going on.

It took a second and things became more clear, the Twin Towers were on fire, it looked like a bomb or something hit them.  As I was on the treadmill warming up, watching the TV, I could hear the news broadcaster say something about the AP, a very reputable source, saying that one of the towers had collapsed.  As I was warming up I watched with fear and horror the second tower collapse.  It looked like someone had demolished it.

The State Supreme Court ruled on Wednesday that Governor Arnold Schwarzenegger and Attorney General Jerry Brown have the right not to seek appeal of a federal judge’s ruling that struck down the voter-approved measure.

The decision by the Governor and Attorney General not to argue in support of Proposition 8 has raised legal questions as to whether anyone has standing to appeal the decision from this summer by Federal Judge Vaughn Walker, which struck down the ban on gay marriage as a violation of both due process and equal protection under the law.

The long and arduous debate over strict-constructionism and original intent has always seemed to me to be displaced.  The idea that we can somehow infer the intent of the drafters of the constitution runs into problems when the question turns to which framer do we follow.  For it seems there were quite a few, and many had contradictory ideas.  Indeed, how can we follow the framers when the framers themselves were quickly polarized on the issue of the intended role of the federal government?

Likewise the issue of strict-constructionism runs into logical problems, in that any reading of the constitution necessarily involves interpretation.  There is no plain meaning and application of a document that was intentionally written to be vague and flexible.

I have defended Jerry Brown’s decision not to defend Proposition 8 despite his role as Attorney General.  Basically, the Attorney General has the duty to defend California’s laws from legal challenge unless they are specifically unconstitutional under federal law.  We can quibble whether the case of Prop. 8 is sufficient, but he did what he did.

However, there is now the increasing belief that Jerry Brown’s actions may have unintended consequences that could put the entire legal challenge to Proposition 8 at risk.

The roller coaster ride for same-sex couples and their advocates continued Monday, as the 9th U.S. Circuit Court of Appeals stayed Judge Vaughn Walker’s decision while the case is on appeal.  Lawyers for the plaintiffs in this case, two gay couples who challenged the ban, said that they would not appeal the stay.

Instead they seemed satisfied that that the court had agreed to fast-track the case by scheduling oral arguments for December 6, 2010.

Initially, proponents of same-sex marriage rejoiced on Thursday as Judge Vaughn Walker announced that he would lift his stay on August 18 and declined to issue a permanent stay from the ruling from last week that overturned Proposition 8’s ban on same-sex marriages.  However, those feelings were relatively short-lived as reality sunk in.

Judge Walker offered a cautious approach which will allow defendants and supports of the ban to appeal to the 9th Circuit to stay the ruling.  If that fails, they could go to the US Supreme Court to obtain a permanent stay of the ruling while the case is pending appeal.

Last week Chief U.S. District Judge Vaughn Walker invalidated Proposition 8, the measure that banned gays from marrying.  Today at noon he will determine whether or not to impose on a stay on his decision, or to allow his decision to go into effect. This would  once again allow same-sex couples to marry, as they had from the summer of 2008 until Proposition 8 was passed and went into effect.

The decision by Judge Walker, which has provoked very strong reaction on both sides of the political divide, struck down the proposition as a violation of federal constitutional guarantees of equal protection and due process.

In the past weeks there were two major court decisions, not handed down by the US Supreme Court, both of which struck down laws, one law enacted by the Arizona State Legislature and one by the California voters through the initiative system.  Both were met by cries of overthrowing the will of the people, judicial activism, unelected judges, and more.

The cry from the right on the issue of Proposition 8 could be heard loudly and immediately.  The words often rarely varied.  “This decision, whatever its final resolution, serves as an undeniable reminder of the power of Federal judges. A single unelected judge nullified the will of the voters of California as expressed through the electoral process,” wrote Albert Mohler.

U.S. Federal Court Judge Vaughn R. Walker, in a 136-page ruling, said “Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

In so doing, he struck down one of the most followed and controversial California ballot measures in recent years.  The ruling is significant in that it struck down the proposition as a violation of federal constitutional guarantees of equal protection and due process.

We have not discussed Arizona’s SB 1070 much on these pages. However, as the law appears to be bleeding into local issues, it is worth noting that it seems likely that US District Judge Susan Bolton’s order preventing enforcement of key provisions until the court rules on the law’s constitutionality is likely to stand.  At least that is what several legal scholars are predicting and their reasoning seems sound.

On the one hand there is a danger in making the assumption that a court will throw out a law just because it violates the constitution. As UC Davis Law Professor Kevin Johnson points out in an Op-Ed in the Washington Post, co-written by a University of Arizona Law Professor, they cite a  1975 case which allows the Border Patrols the power to stop vehicles near the U.S.-Mexico border and question the occupants about their citizenship and immigration status. The high court ruled that the “likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.”

On December 9, Rich Rifkin wrote an op-ed in the Davis Enterprise that generated a good deal of controversy.  While the subject matter is not necessarily the purview of Davis it does overlap with issues that impact Davis and Yolo County.  Today we have a court ruling constraining the use of Tasers particularly against those with mental disorders.

At the outset, having gotten to know Mr. Rifkin through interchange both on the Vanguard and in the community, I do believe his intentions here are intended to help, rather than intended to be malicious as some of the letters to the Enterprise in response have implied.

The Sacramento Bee reports on a ruling out of San Diego County where the 9th US Circuit Court of Appeals has issued a comprehensive ruling that limits the use of Tasers by police against low-level offenders who seem to pose little threat and may have mental illness.

The specific case involves an emotionally disturbed individual who was shot with a Taser.  He was described as unarmed, yards away, and neither fleeing nor advancing on the officer.