Thursday, December 18, 2008

San Francisco panel discussion.

Last Friday, I attended a panel discussion sponsored by the San Francisco Bar Association. The following were some of the points raised in our discussion and some of the thoughts on how to move forward from this point. In brief, the November 4th Election has paradoxically helped to reignite passion within the LGBT community, not only in California but, in the nation.

The Intersection: Race, Religion, The Law & Same Sex Marriage

December 12, 2008

Roundtable Discussion Outcome & Action Items –

The final 30 minutes of the roundtable discussion were spent brainstorming solutions on how we as community leaders can assist the community with moving forward on the issues of race, religion, civil rights and same-sex marriage.

Below is the list of action items recommended by the panelists:

* Going forward, the LGBT Community should create one voice to speak out on this issue
* Develop a common “theme” to use when speaking out on this message (example from the audience: “LGBT need to be empowered to come out, be visible and encourage straight people to tell their story”)
* Develop and publish opinion editorial (op-ed) pieces that speak about these issues.
* Approach mainstream media (CNN, C-Span, etc.) to talk about these issues, just as the religious right advocates are doing. Be sure to highlight the positives that can come from these discussions and present the topics in a non-threatening manner. Start now.
* LGBT community needs to become present in other communities. Go to association meetings, church, etc., in other minority communities.
* Identify ways for LGBT community and straight communities to educate others on the fact that sexual orientation is “not” a choice
* BASF should reach out to other bar organizations to encourage them to put on programs/hold discussion forums similar to this one.
* Create ad hoc religious coalitions as it appears that people may be interested in collaborating with other religions on certain issues.
* The legal community needs to community clearly that same sex marriage is not a zero-sum game, that is, help people to understand that if gays gain the right to marry, that does not mean another group will lose a right that they have – specifically that religious institutions will not lose any rights with respect to what marriages they will perform.
* Coalition building between organizations that might have opposing positions (between boards, etc.) to find a middle ground and/or educate each group.
* Engage ICONS, public figures who are opinion makers and who are in a role to affect policy.
* Be sure to address these issues from a grass roots perspective, while at the same time utilizing the media.
* BASF should consider additional forums like this one, but next time in front of the public or media.


Wayward Hawaiian said...

Check out Romer v. Evans in Wikipedia:

Note the same breadth issue here. The people that propose these things learn from their mistakes. Still, there is hope in decision. Note that we have new Bush appointees on the court.

On November 3, 1992, Colorado voters, with a vote of 53.4 percent, enacted "Amendment 2", which 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 amendment was drafted and promoted by the organization Colorado for Family Values, and it would have effectively prevented any laws banning discrimination against gays, and thereby nullified gay rights laws that already existed in Aspen, Denver, and Boulder.

An immediate legal challenge was launched by gay rights groups. On January 15, 1993 the groups were granted a temporary injunction from District Court Judge Jeffrey Bayless preventing Amendment 2 becoming part of the state constitution, on the grounds of its possible unconstitutionality and possible irreparable harm that would be caused by its implementation. The court scheduled a trial to decide the case.

Before the trial could begin, the state appealed to the Colorado Supreme Court. On July 19, 1993, that court upheld the original injunction, on the grounds that Amendment 2 violated the equal protection clause of the Fourteenth Amendment to the United States Constitution, insofar as Amendment 2 denied gays equal rights to normal political processes. Chief Justice Luis Rovera wrote:

Were Amendment 2 in force [...] the sole political avenue by which this class could seek such protection [against discrimination] would be through the constitutional amendment process.
The state Supreme Court demanded that the legislation face "strict scrutiny" and prove that it advanced a "compelling state interest", and returned the case to the District Court for trial. Judge Bayless found that the amendment failed the test, and ruled it unconstitutional on December 14, 1993.

Colorado appealed to the State Supreme Court, which affirmed the District Court's decision on October 11, 1994, and appealed to the U.S. Supreme Court.

[edit] The U.S. Supreme Court ruling
The case was argued on October 10, 1995. On May 20, 1996, the court ruled 6-3 that Colorado's Amendment 2 was unconstitutional, though on different reasoning than the Colorado courts. Justice Anthony Kennedy wrote the majority opinion, and was joined by John Paul Stevens, Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Rejecting the state's argument that Amendment 2 merely blocked gay people from receiving "special rights", Kennedy wrote:

To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.
Kennedy argued that protection offered by antidiscrimination laws was not a "special right" because they protected fundamental rights already enjoyed by all other citizens. Though antidiscrimination laws "enumerated" certain groups which they protected, this merely served to put others on notice (i.e., the enumeration was merely declaratory).

Instead of applying "strict scrutiny" to Amendment 2 (as Colorado Supreme Court had required) Kennedy wrote that it did not even meet the much lower requirement of having a rational relationship to a legitimate government purpose:

Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.
Kennedy did not go into depth in rejecting the claims put forward in support of the law (protecting the rights of landlords to evict gay tenants if they found homosexuality morally offensive, etc.) because he held that the law was so unique as to "confound this normal process of judicial review" and "defies...conventional inquiry." This conclusion was supported by his assertion that "It is not within our constitutional tradition to enact laws of this sort." Finding that "laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected," the Court implied that the passage of Amendment 2 was born of a "bare...desire to harm" homosexuals.

Anonymous said...

I only have a problem with the first two.

THe unified voice, and unified theme, means that just like the majority outside the community stifles us, the majority inside teh community will stifle others.

We can't have a unified voice and theme because we aren't all the same.. We need to stop pushing for sameness and really learn to appreciate difference.

I am not "Just like straight folks" and I don't want to be, I am different and that is how it is suppose to be.

Birdie said...

The "theme" example from the audience nailed it. Stories will win the day, because they will put a face on the issue. Knowing how my decision affects someone will have me reconsidering my opinion. Suddenly it's about people and not just policy.

I would encourage people who are GLBT to tell their stories to acquaintances, letting them know the impact of this discrimination. Those who are concerned with Scripture will have a new lens through which to filter their understanding. It absolutely makes a difference.

Straight allies need to know and share the stories of the impact of legislation and doctrine. I tell my friends about Jake in Chicago when discussing marriage equality and about Kevin and Ron when talking about adoption rights. Know your terminology and use it to defuse a potentially volatile topic and have reasoned discussion. This time of public awareness is the momentum we need.

K said...

Agreed on all points!

It seemed in the previous election the message was getting clouded up because it was inconsistent. We need to become just as disciplined as the other side!

While I know our movement is characterized on wanting to be allowed to be different from the "norm" maybe there is something we could learn from our opponents. ;-)

I also agree that we need to learn to talk about this in a "non threatening manner." I can't tell you how many times I have to explain to people that not ALL LGBT civil rights activists are defacing churches and are anti-religion. (They just get the most media attention because the media likes a fight.)

Frankly, the home invasion add by the courage campaign, while funny, - cost us votes. Politics is not about making yourself feel better because you get to rip your adversary rhetorically - its about convincing people to vote in your favor.

Also, have you see Truth Wins Out? I have a story about them on my blog - -

Keep up the good work, and we will prevail!