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GAY PEOPLE'S CHRONICLE March 13, 2009

www.GayPeoplesChronicle.com

Bill to repeal 'don't ask, don't tell' is introduced

Top Democrats say it isn't a priority

by Eric Resnick

Washington, D.C.-A California congresswoman introduced her bill on March 2 to repeal the military ban on openly gay and lesbian personnel.

Rep. Ellen Tauscher's legislation is the third time the bill has been before Congress.

Known as the Military Readiness Enhancement Act of 2009, it is essentially the same as earlier versions first introduced in 2005 by Massachusetts Rep. Marty Meehan.

Tauscher picked up sponsorship of the .neasure last year when Meehan left Congress.

The current bill has 128 co-sponsors including Ohioans Dennis Kucinich of Cleveland, Betty Sutton of Akron, and Mary Jo Kilroy of Columbus.

Sponsors also include openly gay and

Prop. 8

Continued from page 1

principles and inalienable rights spelled out in the document's Declaration of Rights.

Interveners argued that it is an amendment, and that the citizens of California have the inalienable right to amend their constitution, which they have done nearly 500 times.

In earlier written briefs, the attorney general undermined the petitioners' case, which Brown supports, by agreeing with the interveners that Proposition 8 is an amendment.

Minter explained that Proposition 8 is a revision because it establishes that a majority can strip fundamental rights from a minority group it might not like.

A revision substantially changes the basic nature of government, according to Minter, while an amendment is a smaller change that has to be consistent with the current constitutional structure.

All sides agree there is little case law defining the two terms.

No more marriage, civil unions for all

Justice Kathryn Werdegar, one of the four majority justices in the 2008 marriage case, asked Minter if a solution would be to start calling all civil marriages, same-sex and opposite-sex, "civil unions" and reserving the term "marriage" for religious institutions.

That plan has been floated widely, including by noted conservative Pepperdine law professor Douglas Kmiec. During the hearing, Starr was chided about that by Justice Ming Chin, a dissenter to the 2008 marriage decision.

Minter responded to Werdegar that such a plan "would not run afoul of the limits and principles" the court proffered in the marriage decision.

A simple vote can end minority rights

Raymond Marshall, representing the Asian Pacific American Legal Center, a friend of the court, spoke next for the petitioners. He began by telling the justices that "Proposition 8 is not just about the rights of gays and lesbians to marry. It creates a radical new rule that majorities can deprive minorities of fundamental rights."

Marshall said the case is not a political argument over amending the state constitution, because nothing is more fundamental than equal protection under the law, which runs through all other fundamental rights, including the right to vote and the right to marry.

Justice Kennard wanted to know if there was a way to carve out a limited exception by

lesbian Reps. Barney Frank of Massachusetts, Tammy Baldwin of Wisconsin, and Jared Polis of Colorado.

The Military Personnel Subcommittee of the House Armed Services Committee held the first hearing on "don't ask don't tell" last August.

Polls show overwhelming support for repealing the policy, some as high as three quarters of Americans. President Barack Obama promised to repeal the law during his campaign.

Yet, the bill's future remains uncertain. Pundits it is risky for Obama to chamsay pion it, as it will likely strengthen his political opponents and social conservatives as well as strain his relationship with the military.

Still, it may be possible to fold the language into the Pentagon's 2010 authoriza-

changing the name of the right.

Kennard then gave the first signal that she is not comfortable overturning what the voters did, by lecturing Marshall on the right of the people to amend the constitution.

Michael Maroko, one of the attorneys who argued the marriage case last year, was up next. He represented married couple Robin Tyler and Diane Olson.

Maroko told the justices that equal protection was an "evolving concept," and that most rights existed before marriage was considered a fundamental right.

"Is civil union for all a viable solution?" asked Chin. "Should the state get out of the marriage business?”

"If the state is in the marriage business, it should do it equally," answered Maroko. "If it is not going to be there equally, then get out of the marriage business. That is our position."

"As you pointed out in the Lockyer decision [last year's marriage ruling], nomeclature matters," argued Maroko, making the point that "taking away the right [of marriage] is a revision to the constitution."

'Un-marry' 18,000 couples

Kennard asked why the 18,000 marriages already performed should remain valid.

"There's a presumption that all legislation is prospective," Maroko answered before turning to voter intent.

"The language on the ballot did not say that the 18,000 marriages would be invalidated. There was no intent to un-marry the couples."

Therese Stewart, the next attorney to argue, added to that by telling the justices that in Massachusetts, a defeated proposal to make same-sex marriages unconstitutional contained language specifically saying that existing samesex marriages would become civil unions.

California had no such language, repeated Stewart, who represented the state's cities and counties.

Krueger, the assistant attorney general, appeared uncertain at times about what he was arguing, and could not answer some of the questions put to him. His time presenting was among the most contentious.

What is an 'inalienable' right?

Krueger argued that in Lockyer, the court articulated a new inalienable right, same-sex marriage.

"So the voters can disagree?" asked Werdegar. "Yes," replied Krueger.

"So, you're arguing that the people of California can amend their constitution, but only in limited ways?" asked Justice Carol Corrigan, a dissenter in Lockyer, who also wrote a separate

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tion, which will be considered next month.

In a March 3 breakfast meeting with progressive bloggers, House Speaker Nancy Pelosi said Tauscher's bill would come up "when we have the votes," but gave no timeline as to when that might be.

Senate Armed Services Committee chair Carl Levin of Michigan told National Public Radio on February 24, "I'm gonna be working with colleagues to see how much support there is for it, and where along the process we can take that issue up. I just don't think we can give that a high priority, given the situation that we face."

Another barrier is House Armed Services Committee chair Ike Skelton of Missouri, who favors the ban.

There are ways to move bills around an opposing committee chair, but it requires the insistence of the House speaker and

opinion saying that the court could only overrule the voters with a compelling constitutional

reason.

"Yes," answered Krueger again.

"How do we define the limited ways?" asked Corrigan.

"Whether or not it is an inalienable right," Krueger said.

Chief Justice Ronald George, who wrote the Lockyer decision, tried to get Krueger to clarify by asking him to define an inalienable right. Krueger stumbled.

"What is that special right that cannot be removed without it being a revision?" George asked.

"The right to liberty," Krueger answered.

Justice Marvin Baxter, who dissented in Lockyer saying with Chin that the decision violated the separation of powers, tried to get Krueger to clarify his point by using the example of the right to life in death penalty cases. Krueger, again, could not answer.

Is voting to amend 'inalienable'?

"Is the right to amend the constitution an inalienable right of the people?" asked George.

"Yes," said Krueger, explaining that the court needs to "harmonize" the different provisions of the constitution.

Three justices, during Krueger's presentation, called the attorney general's position "novel," partly because of his break with the petitioners on the "revision" argument.

Krueger said the people have the right to amend the constitution, but not by initiative until 1911, but that they do not have "unbridled power" to take away rights from segments of society, or to take away liberty without a "compelling reason."

"Do they have the right to change the Constitution unless the Supreme Court doesn't like it?" asked Corrigan.

"There is a way to strike amendments," Krueger said.

"By calling them a revision," Corrigan interrupted, "but since you are not calling this a revision, which amendments are okay and which ones are not?" Krueger answered that the court has no compelling reason to strike the right to marry, and Proposition 8 should be invalidated for that reason.

The people can vote free speech away

Starr, up next, told the court that calling Proposition 8 a revision would be an "unprecedented revolution."

"Let's say an amendment was passed deleting the right of free speech," questioned George.

After listing reasons in the U.S. Constitution why such an amendment would be "unthinkable," Starr eventually said, "Yes. There is no limit on the power of amendment."

"Under our theory," Starr continued, "the people are sovereign and can do unwise things, including things that tug at the equality principle."

Starr added that the right to marry, like the right to free speech, could be removed by voters "so long as it is clear to the people what they are voting on."

"We govern ourselves," Starr said, "and we may govern ourselves unwisely.

According to Starr, a ban on adoption by LGBT couples would also pass this test.

majority leader. It is seldom done.

In August, Skelton was asked by the Gay People's Chronicle if he would block the repeal bill.

In a written statement through his press secretary Lara Battles, Skelton said, "The reassessment of 'don't ask, don't tell' will require a number of hearings over an extended period... Should a political consensus for action emerge after the reassessment is complete, the chairman of the House Armed Services Committee will respond to the interests of the committee members."

Skelton was also asked for a statement explaining his support of "don't ask." "Chairman Skelton has no further statement at this time," was the reply.

Tauscher is a member of the Armed Services Committee.

Chin asked about the theory that constitutions protect the rights of minorities.

"Each of us is a minority of one," Starr answered, inferring that constitutions only protect individuals.

"But Proposition 8 does not erode any of the considerable bundle of rights this state has very generously bestowed," Starr continued. "All it did was restore the traditional definition [of marriage] in place since the founding of the constitution."

'Interim marriages'

Chin asked Starr about the proposed civil union compromise.

"Does that solve the problem, and is that the province of this court?" Chin asked.

"Yes and no," Starr replied.

In that explanation, Starr called the 18,000 marriages “interim marriages” and argued that "there was always a swirl of uncertainty" as to the validity of those marriages.

This angered Corrigan, who interrupted, "There may have been a swirl of public opinion, but this court said they were the law of California. If the people cannot trust this court with what the law is, who should they ask?"

George asked if the state could raise the marriage age to 21, then invalidate the marriages of those legally married at a younger age.

Starr tried to dodge the question by deferring to "common law tradition" and "putative spouse doctrine," where people who live together and consider themselves married become married in the eyes of the law.

Pressed, though, Starr said, "With this wording, they [the underage marriages] would no longer be valid under our theory."

Starr continued to assert that "the world knew this [the validity of the same-sex marriages] was going to be an issue," so in that context, the people have the right to invalidate the marriages.

"So what was recognized November 3 is not recognized November 5. Is this not retroactivity?" asked George.

"The lodestar is intent," Starr answered. "It's the restoration of 170 years of history. To the reasonable reader, the intent of the voters is clear."

'It's only a name'

During rebuttal, Maroko revisited the issue of nomenclature by describing a scenario where an amendment passed that male judges would continue to be called judges, but female judges would be renamed "commissioners."

"You could still rule on cases," Maroko said. "You wouldn't care, would you? It's only a

name."

The court will rule within 90 days. Not waiting, college students around the state are taking action on their own.

Ali Shams and Kaelan Housewright began a campaign calling for the term "marriage" to be removed from state laws and replaced with "domestic partnerships."

Charles Lowe founded a California group called Yes! on Equality.

Its mission is to repeal Proposition 8 with another constitutional amendment.

Stephen Stapleton, another student, is also filing a petition for an amendment to repeal Proposition 8.