F6 UPDATE: DONT ASK DONT TELL LEGAL CASES AND THE FUTURE POLICY & Should Gays Worry About Their Houses Being Rented Out For Domestic Security Forces?

EDITOR: If you have no idea what the second part of this title is in reference towards go to this post regarding the 217th anniversary of The Bill Of Rights, which are the first ten amendments to The Constitution of These United States of America, on the Libertarian Party of Allen County's blog at some pointe to get a refresher in history and get caught up the latest news at the bottom.

We are first going to start with the update of a story previously covered on F6 under Gays In The Military. We first discussed Air Force Major Margaret Witt's case on Memorial Day (top story) and highlighted it again in the middle of July (fourth story).

Lesbian major’s DADT lawsuit moves forward
By 365gay Newscenter Staff | 05 DEC 2008

(Spokane, Washington) A full panel of the 9th Circuit Court of Appeals has ruled a legal challenge to “Don’t Ask, Don’t Tell” - the ban on gays serving openly in the military - can proceed. The Bush administration had asked the court to reverse a May ruling by a three judge panel that overturned a lower court decision to toss out the suit. In upholding the decision by the panel, the 9th Circuit said the case should be considered on the basis of the 2003 ruling by the U.S. Supreme Court, which struck down a Texas criminal statute penalizing homosexual conduct. The Supreme Court in that decision said that laws against sodomy were an unconstitutional intrusion on privacy. The Air Force and Defense Secretary Robert Gates asked the full 9th Circuit to hear the issue. In a 4-3 decision, the court let stand the panel decision to allow Maj. Margaret Witt’s case to proceed.

Witt joined the Air Force in 1986. She served in the Persian Gulf and in 2003 was awarded an Air Force Commendation Medal for her action in saving the life of a Department of Defense employee who had collapsed aboard a government-chartered flight from Bahrain. In 1993, she was selected to be the “poster child” for the Air Force Nurse Corps recruitment flyer. She then was assigned as a flight nurse and operating room nurse at McChord Air Force Base near Tacoma, Washington. But after commanders received an anonymous tip in 2004 that she is a lesbian and in a long-term relationship, the military began an investigation that led to her discharge under the military’s ban on gays serving openly. In November 2004, Major Witt was placed on unpaid leave and told she could no longer participate in any military duties, pending formal separation proceedings. In March 2006, the Air Force informed Major Witt that she was being administratively discharged on grounds of homosexual conduct.

In upholding Witt’s lawsuit the 9th Circuit did not strike down the military’s “don’t ask, don’t tell” policy. But the court said the Air Force must prove that her dismissal furthered the military’s goals of troop readiness and unit cohesion. The military can now appeal the 9th Circuit ruling to the U.S. Supreme Court.

This is not all bad news, the Administration is starting to actually realize how stupid DADT is. Their game plan is actually quite cunning. They now ask the Courts to push it through for a Constitutional showdown in the Supreme Court, so no one actually has to act with the Executive or Legislative powers, and get the bad rap amongst their religious conservative base, for turning it over themselves. It is almost like they want the Courts to do the dirty work for them. Of course then, the same politicians who refuse to take a stand, can use it as a wedge issue later and assert that the bad Justices are legislating from the bench.

The American people should be ashamed that their elected representatives are taking the easy road home and not standing up for our fundamental principles that, all men are created equal. In other words, they are playing the game so tight, that Democratic Party Bosses in Chicago, Illinois would be impressed with the sly play, if they weren't to busy trying to cover their own corruption and lies back under the carpet. Now for the rest of the stories politically and socially speaking in reference to how negligent Dont Ask Dont Tell really is in the lives of our Service Members and what a scorching wound it is to the honour of their sacrifice for our freedom and liberty.

Is Obama caving on Don’t Ask, Don’t Tell?
By Jennifer Vanasco, Editor in Chief, 365gay.com | 21 NOV 08

This is what I was worried about. According to the Washington Times, Obama’s team is saying that even ASKING for a repeal of the ban on open gays in the military may not happen until 2010. First, he wants to build consensus. Fair enough. But it seems to me that consensus is already built - or at least as much as it’s going to be. Earlier this week, 104 retired generals and admirals called for DADT’s repeal. A former Chairman of the Joint Chiefs of Staff spoke out against DADT in 2007. So did a former Secretary of Defense. 143 members of the House have co-sponsored a bill to overturn the policy; a bill approved by the House Committee on Armed Services.

We know the US military needs more soldiers to fight the two wars we are engaged in - last year alone, 627 servicemembers were dismissed under the DADT. The military needs servicemembers and gays want to serve. You know what else? DADT is expensive. In February 2006, a University of California Blue Ribbon Commission concluded that so far, it has cost the government (meaning, us, the taxpayers) $363 million. Don’t Ask is a failed policy. The only people who don’t think so are homophobes. I understand what Obama is trying to do here. He’s trying to avoid a Clintonesque debacle like the one that gave us DADT in the first place. But of everything we’re fighting for, DADT seems like it’s the least controversial and would make the most sense. If this isn’t even being looked at until 2010, then when is he going to start making good on his campaign promise of federal civil unions? When (if) he’s re-elected?

I’ve got a better idea. Why doesn’t Obama name a gay person - like Col. Margarethe Cammermeyer, say - as Secretary of Defense? That would signal real change - and give gays and lesbians real hope.

He opposes DADT; but he first wants consensus from the Joint Chiefs of Staff?

(continued from first article).... The issue of gays in the military became a flash point early in the Clinton administration as Clinton tried to fulfill a campaign promise to end the military’s ban on gays. His efforts created the current compromise policy - ending the ban but prohibiting active-duty service members from openly acknowledging they are gay. Last month more than 100 retired generals and admirals issued a statement calling for repeal of the ban.

Legislation to repeal “Don’t Ask, Don’t Tell” was taken up in committee this year for the first time, but did not make it to a vote. The bill is expected to be reintroduced in the upcoming session of Congress. Under DADT, two people every day are dropped from the military for being gay. In the 15 years that DADT has been in force, more than 10,000 personnel have been discharged as a result of the policy, including 800 with skills deemed ‘mission critical,’ such as pilots, combat engineers and linguists. The number of gay men and lesbians turned away by military recruiters is unknown. A study conducted last year for the Servicemembers Legal Defense Network concluded that the U.S. military could attract as many as 41,000 new recruits if gays and lesbians in the military were able to be open about their sexual orientation.

Personally, Mr. President Elect, it is not the Joint Chiefs you should be consulting; it is the thousands of gays and lesbians currently serving in silence with honour but yet also disgrace that you should be talking to.

But in order for that to happen, you would have to suspend enforcement of DADT, give them immunity for them to be able to come forward, while you question or discern the "honorable course of action". Continuing to ask them to live a life of honour and truth, and yet withhold the very nature of who they are, is a disgrace to everything this Country stands for and was founded on.

It is really sad when the lyrics of Mariah Carey's "All I Want For Christmas" can get changed to something people look forward to hearing. What GLBT Service Members desire is simple, "to just say hello to you, my love" and their families too, with the exact sentiment surrounding the idea that, "our government wont let me even tell you goodbye when I ship off to sea, or inform you when I die for your freedom", and eventual peace.

In the article below, Lee Quillian, now retired from the Navy, remembers one holiday season when she was serving on a ship in the Middle East.

Gay soldiers (not) home for Christmas
By Jennifer Vanasco, editor in chief, 365gay.com | 11 DEC 08

"They risk outing their partner."

All the other sailors were going to a special room to film video messages to their sweethearts. But not Quillian. She didn’t record a message. She couldn’t. Because her partner is a woman. Quillian and her partner Jenny Kopsstein are just two of the thousands of gay couples affected by Don’t Ask, Don’t Tell. The policy, which forbids disclosure of a gay identity while serving in the military, is challenging under the best of circumstances – but during the holidays it becomes particularly dire.

“The holidays bring up memories, expectations,” said Trey Malicoat, a therapist who has worked with servicemembers. “There are more parties, more activities, there’s a financial drain. For gay soldiers, there’s the added burden of not being able to talk about home, about where he or she would like to be, about the person who has the most significance in his or her life.” Malicoat says that this added burden can bring anxiety, depression and an increased sense of isolation to servicemembers who already feel isolated. This is true even for military members who are serving in the U.S. and can go home at the end of the day. “Even while I’m here stateside at lunch, people are talking about what presents they’re going to buy their wife or girlfriend – I’m part of the group but I can’t be part of the discussion,” said Elizabeth, an officer in the Army.

Elizabeth married her partner in Massachusetts a year ago (they’ve been together seven years), but they still need to keep their relationship a secret. “It’s very difficult to abide by the policy and not talk about what’s really going on in your life and at the same time try to connect with your fellow servicemembers. And you are supposed to connect pretty deeply, because we are supposed to put our lives on the line for each other,” Elizabeth said. She added that she thinks that the secrecy does a disservice to straight military members, “99 percent of whom would just roll with it and be OK.”

Extraordinary precautions

Servicemembers say that they have to take the most extraordinary precautions for the most ordinary activities. They need to watch everything they say, using gender neutral pronouns or making up a significant other of the opposite gender. They need to hide who sent them care packages, who sent them a letter, who they write to themselves. If they’re deployed in a foreign country, their partners need to limit calls to the shared phone, lest others on the base (who usually answer that phone) begin to suspect something is up. Quillian, who was on a ship, couldn’t call Kopsstein at all – ship calls are all monitored by Navy personnel.

“We definitely had less contact than a straight couple would have,” Quillian said. “Our goodbyes had to take place at home. And Jenny couldn’t be on a pier waiting for me during homecomings, even though every other sailor was kissing and hugging.” It’s tough on the person at home, too. The military has an excellent support system for family members left behind that includes counseling, a newsletter updating families on unit activities, and support groups and networks.

But gay partners of servicemembers can’t take advantage of any of that. If they do, they risk outing their partner – who under the policy will then lose their job. “Under Don’t Ask, Don’t Tell, you go years and years having to hide who you are,” said Quillian’s partner Kopsstein, who herself was in the military before she told her commander that she was a lesbian. “The policy affects how you relate to people, your friendships, your work relationships, everything.” “I waste a lot of time protecting my conversations in ways I shouldn’t have to,” Elizabeth said. “I think it’s very tiring. I’m tired of it. I’m a good soldier and a good citizen. It’s ridiculous that I have to hide my real life.”

Don't Ask, Don't Tell is not right, moral, honest, nor legal! It is time for this heresy of American Law to come to an end!

EDITOR'S NOTES:

• F6 has and always will hold the men and women of this Country's Uniformed Services in the highest esteem possible and will at all times give them the honor and respect above and beyond that which they inheritable deserve from each citizen.
  
• F6 as an issue of editorial policy will challenge any assertion that Don't Ask, Don't Tell is either Constitutional or proper policy in our great Country, especially in a place where all men are created equal!
  
• F6 has several resources and commentaries regarding GAYS IN THE MILITARY for your perusal.

Mormons come under review and across the Country begin to loose membership over prop 8 support. Prop 8 to be reviewed by the Court in March 2009.

Information in the introduction below is taken from an excerpts of the second and fourth articles cited below. But first here is some coverage from earlier this month by Actor and Model David Moretti, currently known for amongst other things for his serial performance as Reporter Thom Etherton on HERE! TV vampqueer thriller The Lair, which is in its third season of production.



In the last several months before the November election over 18,000 same-sex couples have married since the California Supreme Court struck down a state ban on same-sex marriage. When Prop 8 passed it did not invalidate those marriages but restricted the ability for any further celebrations of civil unions by same sex partners in the State.

The Mormons, members of The Church of Jesus Christ of Latter Day Saints, boasts of a membership topping thirteen million and a missionary force of over five hundred thousand. They donated nearly half, up to $25 million by some estimates, raised by Yes on 8, (in California) canvassed neighborhoods and staffed phone banks. ... Mormons are "uniquely situated to be mobilized into politics," said David Campbell, a political science professor at the University of Notre Dame....

SAN FRANCISCO (AP) — California officials will investigate whether the Mormon church accurately described its role in a campaign to ban gay marriage in the state. The California Fair Political Practices Commission said Monday that a complaint by a gay rights group merits further inquiry. Executive director Roman Porter says the decision does not mean any wrongdoing has been determined. Fred Karger, founder of Californians Against Hate, accuses the Church of Jesus Christ of Latter-day Saints of failing to report the value of work it did to support Proposition 8. A representative from the Salt Lake City-based church could not be reached for comment.
(Source: Google News)

For the sake of full disclosure and unbiased reporting, here is another full story on the same report courtesy of Jessica Ravitz of the Salt Lake Tribune.

What were you thinking?

Peggy Fletcher Stack, last week, recounted the stories told to her, about the aftermath of the Prop 8 support by the CJCLDS, from the Prince family of Wahington D.C.:

Although they live a continent away from California, LDS Church members Gregory and JaLynn Prince, of Washington, D.C., still have felt the backlash from their Church's involvement in the traditional marriage initiative known as Proposition 8.Their daughter, Lauren, a Boston University student, has lost friends over the issue, while their son, an LDS missionary in San Bernardino, Calif., has had a disproportionate number of potential converts cancel appointments. About two weeks ago, during a first-ever class on Mormonism at Wesley Theological Seminary, where the Princes have built bridges for years, students pointedly asked them: "What was your church thinking?" "We are not taking sides on the issue, but the way this was done has hurt our people and the church's image," JaLynn Prince said. "It reminds me of the naive public relations strategy we had regarding the Equal Rights Amendment."
(Source: Salt Lake Tribune)

Prop 8 Strategy Plan originated back in 1997

(Salt Lake City, Utah) The Church of Latter Day Saints began putting together a game plan 10 years ago to ensure same-sex marriage would not become legal, a internal church memo shows. The document, obtained by Salt Lake City ABC affiliate KTVX, was sent by a member of the LDS General Authority to a member of the Quorum of the Twelve, the church’s governing body.

Dated March 4, 1997, the memo mentions a meeting with Gordon B. Hinckley, who was then President of the Church, and quotes Hinckley as saying the Mormons need to “move ahead” with the church’s opposition to same-sex marriage. Hinckley, according to the 11-year old document, suggests joining forces with the Roman Catholic Church. “The public image of the Catholic Church is higher than our Church. In other words, if we get into this, they are the ones with which to join,” the memo quotes him as saying. He also warned in the memo that the Church should not be seen as the lead instigator in the fight against gay marriage.

[...2.5ip....]

In Utah, the Mormon Church says that eight of its temples have been vandalized since the passage of Prop 8 in California.... LGBT rights groups have appealed the outcome of the vote to the state Supreme Court, arguing the initiative process was improperly used in an attempt to undo the constitution’s core commitment to equality for everyone, by eliminating a fundamental right from just one group – lesbian and gay Californians. The groups in their petition to the court also say that Proposition 8 improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities.
(Source: unknown origin received text through email)

California Supreme Court agrees to hear arguments for the repeal of Prop 8.

The California Supreme Court today denied requests to stay the enforcement or implementation of Proposition 8, and at the same time agreed to decide several issues arising out of the passage of Proposition 8. The court's order, issued in the first three cases that had been filed directly in the state's highest court challenging the validity of Proposition 8, directed the parties to brief and argue three issues:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
(2) Does Proposition 8 violate the separation-of-powers doctrine under the California Constitution?
(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The court issued its order in three cases filed on behalf of a variety of parties, including same-sex couples who seek to enter into marriage despite the passage of Proposition 8, a same-sex couple who married in California prior to the adoption of Proposition 8, and a number of cities and counties whose officials seek to issue marriage licenses to same-sex couples. Petitioners in each of these cases seek an order directing the relevant state officials to refrain from implementing, enforcing, or applying Proposition 8. In response to the petitions, the Attorney General filed a preliminary opposition, in which he urged the court to assume jurisdiction over these cases to decide the important legal issues presented, but also argued that the court should not stay the operation of Proposition 8 pending the court's resolution of the issues. The proponents of Proposition 8 also responded to the petitions, seeking to intervene as formal parties in the action and also urging the court to accept the cases for decision.

The court's order granted the motion to intervene filed by the proponents of Proposition 8. In its order, the court established an expedited briefing schedule, under which briefing will be completed in January 2009 and oral argument potentially could be held as early as March 2009. Six justices — Chief Justice Ronald M. George, Justice Marvin R. Baxter, Justice Kathryn M. Werdegar, Justice Ming W. Chin, Justice Carlos R. Moreno, and Justice Carol A. Corrigan — signed the court's order, although Justice Moreno indicated that he would grant the requests to stay the operation of Proposition 8 pending the court's resolution of these matters. Justice Joyce L. Kennard would deny these petitions without prejudice to the filing in the Supreme Court of an appropriate action to determine Proposition 8's effect, if any, on the marriages of same-sex couples performed before Proposition 8's adoption.
(Source: Chris Johnson Human Rights Campaign)

On the top of this page you will find a banner for the next collective action on the 10th of December 2008 by the Our Community in solidarity with our siblings in California, Arizona, and Florida, with the theme "A Day Without A Gay" where the San Diego, California based group Equality Action Now is asking all Gays and our allies to strike for one day. There are several other actions planned over the course of the next couple of months. If you know of any other initiatives or actions please email me details or look on the Disclaimers Page for contact information. Here is the short list, with links when available:

Today Equality Food Drive | Dec 10 Day Without A Gay National Strike |
Dec 20 Light The Night Vigil | Jan 10 DOMA National Protest |
Continuing Actions: Postcard To The President |

Anti GLBT Legislation IS a Constitutional issue! It violates the Freedom of Association!

There have been several reports of riots by gays, assaults by straights, all around California and elsewhere, there have been demonstrations by Gays and Lesbians and their supporters after the passage of Same Sex Marriage Bans in California, Florida, and Arizona.



The above video footage is from straight actor, musician, and social commentator Chris Thompson (MySpace) (YouTube) (YouTubeMusic). Thank you Chris! You can also check out this footage for a balance in reporting here on F6. Here are the latest details (courtesy of Adam Bouska (MySpace) and others) for upcoming demonstrations:

Saturday, November 8th

+ Los Angeles, CA 6:30am - 9:30am
Los Angeles California Temple 10777 Santa Monica Boulevard (Protest)
+ San Diego, CA 12 Noon
1st Avenue & University March to 30th Street & University Avenue in North Park
For more information please call (619) 251-3381 or (661) 713-0520.
+ Laguna Beach, CA 5:30P
City Hall March to Main Beach for candlelight vigil. Parking available at
Act V parking lot 1900 Laguna Canyon Road Shuttle busses will be
running every 15 min. Bring signs, flags, candles or flashlights, whistles
+ Silverlake, CA 6P-9P
Sunset Junction Corner of Sunset Blvd and Santa Monica Blvd

Sunday, November 9th

+ Los Angeles, CA 10:30A - 11:30A
St. John's Episcopal Church 514 W Adams Boulevard
(A SHOW OF SUPPORT FOR A CHURCH THAT SUPPORTED US
AND WAS DEFACED BY YES ON 8 PEOPLE)
+ Los Angeles, CA NOON - 3P
CATHEDRAL of OUR LADY OF THE ANGELS 555 W. Temple Street (P)
+ Irvine, CA 3PM - 9PM
The Irvine Spectrum 71 Fortune Drive corner of Pacifica.
+ Oakland, CA NOON
Oakland Mormon Temple 4766 Lincoln Ave.
+ Sacramento, CA 1P -4P
State Capitol West Steps

Monday, November 10th

Monday there will be a peaceful civil disobedience sit in at Fresno City Hall that was organized by the youth. They said even though they weren't old enough to vote, they wanted their voices to be heard. (Photo: Bjorn Smestad)

There is also a strong movement within the GLBT Community now to strip the CJCLDS (Mormons) of its tax exempt status as they contributed approximately forty to seventy percent of the budget for the elimination of the rights of gays and lesbians to marry from the Constitution of California. 262,405 people so far have signed a petition to have Proposition Eight reopened by Governor Arnold Schwarzenegger.

WHY ARE ANTI GLBT LEGISLATION
AND BALLOT INITIATIVES UNCONSTITUTIONAL?

What these recent, legal recourse actions, moral/religious issues, legal loopholes, and Calvinistic social engineering policies are ultimately going to come down to is a Constitutional fight between "Full Faith And Credit" (Article 4, Section1) versus "Congress shall make no law" (1st Amendment). Let me explain at least the basics first then we can get to some grittier details.

We have at a minimum two parts to the Constitution at war with one another and both have been abused at the Federal and State levels of government. Every citizen should look at the Constitution of the United States as a legal document with amendments. These amendments revise the original text or modify the way said original agreement is carried out. And it does so in writing so there is no failure of communicating the intent of either the original agreement or the amendment to that agreement.

There is a particular passage of the Constitution, called the Full Faith And Credit Clause, which regulates legal recognition of judgements and very clearly presumes that privilege in regards to marriage to the State not the Federal Government. However the Constitution also clearly directs that, each state will recognize the legal actions or judgments towards a Citizen in or by another State.

Full Faith And Credit Clause also stipulates that Congress gets to determine by legislation how much the individual States have to recognize another States actions or endowment. So this is an issue of Enumerated Powers as well. This is where the Defense of Marriage Act (1996?) attempted to fund its "Constitutional Source of Validity" however that is also where the First Amendment now comes into play too!

Unless you look at the Constitution as a legal document, with amendments (which correct or modify the entire document unless specifically enumerated and cited within the text), the Country would then have a major conflict within the document itself. Ultimately all of these issues will come down to a Supreme Court and Congressional showdown in the next three years. It may even result in the GLBTIQAS Community loosing more rights.

That conflict will only be resolved by a Constitutional Convention being held to remedy this situation entirely. I am not sure we are ready nor do we have the fortitude our Founding Leaders did when writing the original document and we will probably screw it all up. It was only because of the 2003 Lawrence v. Texas decision that we now have the right to have sex without fear of repercussions and even still people are being persecuted for "crimes against natural law" due to some over zealous Christian politicians trying to override our basic Civil Rights and equality in certain Southern States and the Armed Services.

Even though the particular obstruction in the First Amendment specifies the Freedom To Assemble; nevertheless, (wiki) "it has been interpreted to include the freedom of association by the United States Supreme Court. The Court has held that the freedom of association is an essential part of the Freedom of Speech also because, in many cases, people can engage in effective speech only when they join with others. The Supreme Court has found the Constitution to protect the freedom of association in two cases:

1. Intimate Associations. A fundamental element of personal liberty is the right to choose to enter into and maintain certain intimate human relationships. These intimate human relationships are known as "intimate associations." The paradigmatic IA is the family.

2. Expressive Associations, groups engaging in activities protected by 1st Amendment speech, assembly, petitioning government for a redress of grievances, and the free exercise of religion."

The First Amendment does something really special and freaky at the same time:

1. Each right guaranteed or restriction placed on the government applies to the individual and then the group. In the recent Heller v. Washington D.C. case regarding the 2nd Amendment they clarified as such and over turned the D.C. gun ban. When our fourth President James Madison wrote the Constitution and the Bill of Rights one of the driving forces behind our decision to be a Republic or representative democracy rather than a strict Democracy was to assure minority rights over the majority rules or common opinion.

Democracy, even as proven by Grecian culture studies of historical life in Athens vs. Sparta, is more evil than Communism or Socialism. Sparta had it right about same sex attraction and activities is a good thing and women should be liberated and part of the public discourse not shoved into the house to clean and be quiet.

2. Beginning a statement with "Congress shall make no law" is as broad and direct as it gets. This means it applies to the whole Constitution as well, including the Full Faith And Credit Clause's provision for legislation to govern how much one State has to recognize another State's actions, this includes marriage as an association of persons.

3. Marriage is an association of persons?

Yes at its core a marriage contract is a social or civil society association of two or more people in common bond and legal enterprise. It is a joining of individuals' fiscal as well as emotional and intimate resources and liabilities. Therefore marriage is protected from the State under the First Amendment as a freedom of association assuming that all parties are still equal in the transaction and no rights are removed from the individuals joining together in such an agreement.

So what are you asserting here?

I am asserting that in so far as the First Amendment protects the individual as well as the collective or group, from Congress passing any law to establish or obstruct the freedom of assembly/association, it also prevents by amendment, Congress from using their legislative power, under full faith and credit, to limit or restrict personal relationships as they fall under the freedom to assemble or associate oneself to another. Therefore the Defense of Marriage Act of 1996 is Unconstitutional and the States do not have the legal right to deny another States recognized same sex marriage or adoption of children by gay parents. While the States might be able to retain the right to register and have some regulation over marriage in their borders, the United States Congress cannot. The Supreme Court on the other hand is a different story; they are not obstructed by the Constitution!

It is time to rectify these abuses of our Constitution!
It is time for all to be treated equally not just be created that way!
It is time for freedom to take hold and liberty to actually ring true!
It is time for you to join the Libertarian Party the only one that believes that
government doesnt have the authority to define, license or restrict, personal relationships!

Liberty And Justice got together and bore forth Freedom!?!

Connecticut Ruling Brings Us One Step Closer To Supreme Court Showdown

If you have not heard, in a 4-3 split, the same sex marriage ban in Connecticut has been overturned based on their State Constitution's Equal Protection Clause, stating, "As a quasi-suspect class, gay persons, no less than women, are entitled to a more searching judicial review of that statutory prohibition, as well as any other classification that singles them out for discriminatory treatment" They didn't rule on the validity of Civil Unions which have existed by Legislative Action in Connecticut since 2005. You can read more via TowleRoad, Human Rights Campaign. Eventually, as all of these cases are going to a head and will need to be reviewed to the Federal Courts. We are going to have two issues at play:

Full Faith And Credit Clause

Full Faith and Credit Clause (Article 4 Section 1) of the Constitution of The United States of America explicitly states that: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." Right now with the Defense of Marriage Act in placed limits on States and the Federal Government from recognizing Same Sex Marriage performed in other States or Countries. DOMA also limits GLBT partners from being able to both have those protections of marriage if lets say one of the partners or a child ends up in the hospital while traveling outside of their home state or even dissolve their unions at a future date if the situation warrants after they have moved to another State.

Judicial Review and the Role of Scrutiny

The issue at hand is not whether the Court has the jurisdiction but do they have the right to interpret scrutiny from one precedent to another case, in other words was the scrutiny intended by the Court to be universal or case specific. An interpretation the Supreme Court, as cited in several lower Court rulings, has been used to both maintain gay discrimination and overturn anti discrimination ordinances, laws, and workplace issues alike.

Scrutiny has also been a deciding factor in the final outcome of a case in that while the merits of the case are compelling the Courts to further consider civil protection of a class,or group, or social association, and overrule government action or legislation; but then determine, based on the level of judicial scrutiny applied by a particular Courts discretion, the bad law or action is allowed to continue because "their level of scrutiny didn't elevate to "heightened or intermediate versus a suspect classification, a stricter standard of review, namely, "that sexual orientation is liable for substantive due process violations is a suspect classification". Or as the Connecticut ruling stipulates, "infringes on a fundamental right in violation of due process and discriminates on the basis of sex in violation of equal protection"

Trying to figure out what it all means for us

Why do the Courts keep insisting on issuing small booklet rulings? I have a migraine now. I realize that there is a certain commentary that is necessary based on precedent citation in order to achieve a factual basis for a new finding of facts or stipulation or towards interpretation; however some of this is ridiculously lengthy and could be attached into appendixes rather than the actual opinion. Or maybe they could issue a summary page in order to communicate better with the common citizen. We complain about the laws not being more simple and understandable and yet we have judges who write out opinions that are more lengthy than some of the Bail Out Bills and Pork Barrel Spending floating through Congress. Now dont get me wrong, I appreciate the Courts decision in more ways than I can count my fingers and toes, but the ruling is not decisive enough to withstand Federal Court scrutiny against the Defense Of Marriage Act which is the real struggle facing GLBTIQAS partners.

Why the Libertarian Philosophy is better than the two party status quota

The Libertarian Philosophy "government does not have the authority to define, license or restrict personal relationships" is pretty simple and leads directly to the pointe. The Libertarian Philosophy restores the freedom to associate oneself with whomever and however many people the individual chooses to by basic legal contract, as long as all parties are equal in the relationship.

Our Candidate for President Bob Barr of Georgia, who originally authored DOMA stated emphatically "Standing before you, looking you in the eye, the Defense of Marriage Act, insofar as it provided the federal government a club to club down the rights of law-abiding, American citizens, has been abused, misused and should be repealed," (Source: SOUTHERN VOICE), as he accepted the Libertarian Party's nomination. He also expalined, in a Wall Street Journal Opinion Editorial back in June, that he will do away with Dont Ask Dont Tell and begin to proceed with inclusion of gay and lesbian members into the Military ranks completely. You dont get either John McCain or Barack Obama to take a stand, and in fact they try to run far away, on either one of these important issues of equality for all Americans. Isnt it time to make a real choice? The choice for your liberty and your childrens freedom.

Is there another answer to the arguments against Gay Marriage?

Now there are currently four states that allow same sex marriage; with this recent decision, we are well on the way to seeing justice in action and liberty giving birth again in this country to freedom and that speaks directly to my heart. I am an avid supporter of Multiple Partner Relationships. I believe Group Marriage is stabilizing because it increases the mutual support of the children and is conducive to each individual parent to better provide for the children and each other. To read more about Group Marriage (right click the link) or consider picking up a copy of The West Bank Group by Henry Sackerman (1970)

Putting The Carriage Before Marriage In California

As a rule, I don't comment on current events until they have had a little time to settle. Especially when the issues come from partisan pandering or the law. By setting up this rule of a cooling off period, F6's commentary is based not on an emotional or zealous response but a little more information and analysis, by both qualified interpretation and incompetent buffoons alike. I get the pleasure of throwing down some other concerns or queries that everyone else has ignored or over looked, which then put the issues into a new light that will either stir up more controversy or piss everyone off. I, much like Oscar Wilde, await such responses with anticipation and receive them freely with gratitude. The rest of my commentary is towards the end and there are some cross blog links that I though you all might find interesting at the bottom of the page. On a secondary note, there are no pictures on this post.

So first, a case law review: What exactly did happen in California this week?

The California Supreme Court was ruling a combination of six cases from back in 2004 and 2005 that had trounced through and were delayed in the normal judicial reviews and pathways of the legal system for over three plus years. These cases still had remaining questions that had not been raised or resolved in the original findings by the Court regarding the February 2004 San Francisco Gay Marriage Protest in which, Mayor Gavin Newsom began an act of civil disobedience. The Court later ruled "concluding that the City officials had exceeded their authority in issuing marriage licenses to same-sex couples in the absence of a judicial determination that the statutory provisions limiting marriage to the union of a man and a woman are unconstitutional, and further concluding that the approximately 4,000 same-sex marriages performed in San Francisco prior to our March 11, 2004, order were void and of no legal effect.", (Lockyer vs. City and County of San Francisco).

So that makes this not at all a sudden drastic decision on the Courts part. This was the normal course of review to clean up the remaining cases from a group of incidents which could not be resolved by the decision in the original case which was brought by the Attorney General. The "new cases" asked a "substantive constitutional question" and due to the nature of preexisting laws on the books in California made the establishment unique to other precedents or legislative schemes not applicable to these particular other cases across the country. "These (other State and Appeal Courts), often by a one-vote margin, have ruled upon the validity of statutory schemes that contrast with that of California, which in recent years has enacted comprehensive domestic partnership legislation under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple. Past California cases explain that the constitutional validity of a challenged statute or statutes must be evaluated by taking into consideration all of the relevant statutory provisions that bear upon how the state treats the affected persons with regard to the subject at issue."

The path of judicial review is established; becomes necessary for the Supreme Court to review

a. On April 13, 2005, the superior court issued its decision on this substantive constitutional question.... the superior court confined its decision to the challenge that was based upon the equal protection clause... ultimately concluding that the statutory limitation of marriage to the union of a man and a woman not only does not satisfy the strict scrutiny standard, but also does not meet the more deferential rational basis test because, the differential treatment mandated by the statute does not further any legitimate state interest. In light of this conclusion, the court held that California's current marriage statutes are unconstitutional under the state Constitution insofar as they limit marriage to opposite-sex couples.

b. On appeal, the Court of Appeal, in a two-to-one decision, reversed the superior court's ruling on the substantive constitutional issue, disagreeing in a number of significant respects with the lower court's analysis of the equal protection issue a right to same-sex marriage (without established precedent). Second, rejected that the California marriage statutes discriminate on the suspect basis of sex but rather permit members of either gender to marry only a person of the opposite gender. Third, sexual orientation does not constitute a suspect classification for purposes of the state equal protection clause.

The majority thus concluded that, the marriage statutes survives rational basis review, reasoning that the state has a legitimate interest in preserving the traditional definition of marriage and that the statute's classifications are rationally related to that interest. The concurring justice observed that in her view, "The nuance at this moment in history is that the institution(s) are distinct and, we hope, equal. We hope they are equal because of the great consequences attached to each. To the degree that any committed relationship provides (those consequences) it is entitled to respect. Whether it must be called the same, or supported by the state as equal to the traditional model, only time and patient attention to the models at issue will tell."

The third appellate court justice dissented from the majority's determination that the marriage statutes do not violate the California Constitution. The dissenting justice (1) disagreed that the same-sex couples challenging the marriage statutes are seeking recognition of a novel constitutional right to "same-sex marriage" rather than simply the application of an established fundamental constitutional right to marry a person of one's choice, (2) sexual orientation should be considered a suspect classification for purposes of equal protection principles, and (3) finally concluded that the challenged statutory restriction limiting marriage to opposite-sex couples "has no rational basis, let alone a compelling justification."

What the Court asked? How the Court ruled?

"Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a "marriage" whereas the union of a same-sex couple is officially designated a "domestic partnership."

The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.... (and) whether the difference in the official names of the relationships (marriage vs. domestic partnerships) violates the California Constitution. As explained hereafter, the determination whether the current California statutory scheme relating to marriage and to registered domestic partnership is constitutionally valid implicates a number of distinct and significant issues under the California Constitution:

"Whom has the right to marry"

1. The nature and scope of "the right to marry"... we conclude that, under this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own -- and, if the couple chooses, to raise children within that family -- constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.

Furthermore, in contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation, and, more generally, that an individual's sexual orientation -- like a person's race or gender -- does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.

2. The Attorney General, observing that fundamental constitutional rights generally are defined by substance rather than by form, reasons that so long as the state affords a couple all of the constitutionally protected substantive incidents of marriage, the state does not violate the couple's constitutional right to marry simply by assigning their official relationship a name other than marriage. Because the Attorney General maintains that California's current domestic partnership legislation affords same-sex couples all of the core substantive rights that plausibly may be guaranteed to an individual or couple as elements of the fundamental state constitutional right to marry, the Attorney General concludes that the current California statutory scheme relating to marriage and domestic partnership does not violate the fundamental constitutional right to marry embodied in the California Constitution.

3. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple's constitutional right to marry under the California Constitution. Furthermore, the circumstance that the current California statutes assign a different name for the official family relationship of same-sex couples as contrasted with the name for the official family relationship of opposite-sex couples raises constitutional concerns not only under the state constitutional right to marry, but also under the state constitutional equal protection clause. In analyzing the validity of this differential treatment under the latter clause, we first must determine which standard of review should be applied to the statutory classification here at issue. Although in most instances the deferential "rational basis" standard of review is applicable in determining whether different treatment accorded by a statutory provision violates the state equal protection clause, a more exacting and rigorous standard of review -- "strict scrutiny" -- is applied when the distinction drawn by a statute rests upon a so-called "suspect classification" or impinges upon a fundamental right.

4. As we shall explain, .... we conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents -- like gender, race, and religion --a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple. Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest.

We came to the conclusion

Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California's current marriage statutes -- the interest in retaining the traditional and well-established definition of marriage -- cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest. A number of factors lead us to this conclusion.

First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.

Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.

Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.

Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise -- now emphatically rejected by this state -- that gay individuals and same-sex couples are in some respects "second-class citizens" who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

COMMENTARY: How will this landmark case effect laws in Indiana or across the Country?

It is also important to note that like Texas, California was originally a very long time ago was an Independent Republic and not always a State or Territory of the United States. The Constitution, the legal mind set, and cultural roots of Hawaiians, Californians, and Texans is uniquely distinct from that of most Americans. These cases besides the query of Equal Access/Protection Under The Law is more about what type of Judicial Review applies either a "Rational Basis" or "Strict Scrutiny". Legal precedents and established law have had three plus years to accumulate between the original cases and this particular judicial review by the highest Court of California. As reported by F6 last August, the Ninth Federal Circuit Court issued a broad definition for a person's social associations based on unchanging or undeniable characteristics that are inherent to membership in the group as protected under the Constitution of the United States of America as a stable minority classification.

The precedent of either decision will not have stability in Indiana until the precedent is affirmed either by the State or Circuit Courts here or the Supreme Court of the United States. This is also a landmark victory both for and against Federalism/State Rights versus The People under the enumerated powers of the 9th Amendment to the Constitution. However it also reopens questions and provides a challenge specifically to the United States Congress to certain pundits dismay under the Commerce Clause (Article 1, Section 8, Clause 3) as well as the Duties of the States under the Full Faith and Credit (Article 4, Section 1) Clause, like the Tenth Circuit's Oklahoma Gay Adoption Case, (Finstuen v. Crutcher (pdf)), amongst others.

While the case at issue was specific the precedent established holds application in the State of California. However to the dismay of all citizens and Legislatures, it looks as if the Supreme Court of the United States will have to rule on some of these cases eventually. Why? you ask. Because, at least with a layman's interpretation of the rulings, there are now unanswered questions in both Federal and State Courts decisions regarding Title 9 compliance - at least at the State level, as pointed out in number four above: "the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we (The California Supreme Court) conclude represents -- like gender, race, and religion --a constitutionally suspect basis upon which to impose differential treatment"; with strict scrutiny.

As much as people wish to bitch about "judges legislating from the bench" which is easy for a rhetoric debate. They forget that it really is a bottom-up review process before it becomes a top-down application. The review by the judiciary starts at the local level. As President James Madison said so eloquently "In Republics, the great danger is, that the majority may not sufficiently respect the rights of the minority." is the purpose of the rule of law in this country having supremacy unto or by no one else, even "We The People". As the Justices said in their decision: "Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions."

This is the reason why, as a Libertarian, I believe government should get out of regulating marriage all together, allowing consenting adults to form their own contractual bondings, as their individual selves, under the review of the courts, the way it was intended in the first place.

SOME OTHER ALTERNATIVE THOUGHTS ON MARRIAGE EQUALITY DECISION:

1. Hold The Champagne
by Jonathan Rauch
Independent Gay Forum

2. On Differing from my Gay Peers on Marriage Ruling
by West
Gay Patriot

3. Where Kurt is King
by Bil Browning
BILERICO Indiana

4. The Reasoning of the CA Supreme Court
and her prelude review
Sitting Around Waiting for the CA Supreme Court to Rule
by Ellen Andersen
BILERICO

5. The Libertarian Party of California's Official Statement
by Chairman Kevin Takenaga
Third Party Watch

So my Wednesday post is a little late...Homeschooling and the GOP

I have been sitting on some of these stories, partially so they could unfold fully and partially so I could add my perspective without "jumping on the blog wagon" as everyone pulls together and shows their mutual or at least reciprocal outrage for different parts of different events that have happened over the last several weeks.

First lets get the supposed Squirrel Society out of the way as well as the Republican Party of Allen County.

After all the in fighting is said and done what will be left of the GOP in this county is hard to say with all the posturing and attempts to overthrow the current regime through the precinct committee positions (the ones whom have the "stockholder" positions in the Party), and the withholding of funds by major party supporters until there is a change proves yet again why just having a free market system would in turn either improve a product and service or remove it by a show of silent force of the public or constituency.

What is really sad is that after all the work and money that was put into remodeling the GOP Headquarters downtown several years back as a "Shine"-ing testament by their fearless leader is going up for sale and the offices of the GOP are having to be relocated for a lack of funding for the two grand plus a month in rent and all the utilities, not to mention the fact the Party is now in serious debt.

For supposed fiscal conservatives I find all of it absolutely hilarious!

In other news that hit the national and local blogs is a controversy over homeschooling, school choice, and the purpose of Systematic Public Instruction that is mandated by law with compulsion to all our children. Thanks to an old California law a court has made a blanket ruling stating that in fact it is illegal to not have a credentialed teacher, tutor, or instructor, providing the education in the home. Before I comment further there are some awesome updates on this particular case over at The Full Quiver.

The California case was not a normal situation and unlike other bloggers I believe the panel had every right to restrict what school the children could be placed in given the documented abuse of privileges by the parents and the particular school 's failure to assure the safety of the children and that they were receiving an adequate balanced education. Applying the decision without giving the legislature time to address the issue was just a tad over barring but still a precedented legitimate interpretation of the law.

This decision will hamper home schooling locations in the immediate term of application for the ruling yet think of the benefits for all the substitute teachers who will now be able to be hired on full or part time by parents looking to keep their children at home. It is a boom for the economy no matter how the situation unfolds. However if parents are then required to provide an instructor, the State should pay the persons that are hired salaries as the parents have already paid their taxes; and so therefore the State, is then obligated to sustain the most beneficial education possible for each student and that should still be determined by the parents discretion in normal cases.

Stipulating as I have in the past:
I am a product of the Public School system and proud of it!

Now, I do believe there needs to be a minimum certification process though with continuing education requirements but the idea of asking a parent to go through a complete three year certification process is about as ridiculous as my last attempt to get a teacher in Public Schools to stay past 3:30 to help one of my kids with work in math. I couldn't do it because I am numerically dyslexic.

I also believe there needs to be more openness with the school districts providing textbooks and social interaction time like Phys Ed courses and other enrichment program (eg: art, band choir, wood shop, etc.) times for a concentrated opportunity for children to have a balanced education and for the parents to get a break a couple days a week, especially with high school and middle school students.

Most high school and middle school teachers in FWCS, as I have been told, get one planning period per day and that could easily be converted by the School Board into providing a continued enrichment support for home school children, again only on like Tuesdays and Thursdays, as a limited enrichment opportunity.

I should probably just give up hope and run for the School Board myself!

[PHOTO SOURCES: The top picture's sources are not remembered at this time. The school bus was ganked from Richmond Community Schools for its obviously gay friendly undertones.]