Wednesday, November 4, 2009

Legal commentary on election returns in Maine and Washington

11/04/09 WordinEdgewise by law professor John Culhane:
[T]wo things seem worth saying. First, we should acknowledge that there is indeed something wrong with putting minority rights up to a vote by the majority ... Second, we’re pushing closer and closer to that 50% threshold. It seems right now that we’re in the 47-48% range in more socially progressive states, so we’ve not far to go. And when the (in this sense) toxic word “marriage” is taken out of the equation, we’ve now cleared that majority hurdle: It looks as though the Washington full domestic partnership ordinance will stand.
11/06/09 Huffington Post, by law professor Carlos Ball:
As difficult as losses such as the one in Maine is for supporters of the legal recognition of same-sex relationships, it is important to keep in mind just how far we have come on this issue in a very short period of time ... It is also important to keep in mind that opponents of equality prevailed in Maine -- as they did in California a year ago -- by a slim margin ... Opponents of gay marriage are increasingly having a difficult time articulating why it is, exactly, that the legal recognition of such marriages would harm society.
11/05/09 Huffington Post, by law professor Geoffrey Stone:
It was only when gays and lesbians courageously stepped out of the closet that real change began. That change came about not only because they could become active politically, but also because people came to realize, sometimes to their shock and dismay, that their children, their neighbors, their friends, their co-workers were gays and lesbians ... What is most missing now in the movement to achieve equality in America is courage among our political leaders. Even the leading contenders for the 2008 Democratic presidential nomination were unwilling to say that they supported same-sex marriage. This is shameful. And it is especially shameful that our President remains silent.
11/07/09 Leonard Link, by law professor Arthur Leonard:
There are a few things to remember about this vote. Unfortunate as it was, it was NOT the enactment of a constitutional amendment or a statute banning same-sex marriage. It has no substantive effect going forward. All it does is to repeal the marriage law passed earlier this year. It does not preclude the legislature from revisiting the issue, either with an interim civil union measure or another attempt at marriage.
11/05/09 Kennebec Journal:

A panel of legal experts, including a former Maine attorney general, predicts that it will be only a matter of time before Maine legalizes same-sex marriage. Though Tuesday's vote repealed the same-sex marriage law that was approved by the Legislature and signed by the governor in May, the Columbia Law School panelists said Maine is on the path toward adoption.

11/04/09 Out For Justice:

Kate Kendell, executive director of the National Center for Lebsian Rights, also expressed anger over elections in which a majority can strip a minority of fundamental rights:
It is a travesty of every principle that made this nation great that the rights of a minority group can be put up to a popular vote.
11/04/09 press release by Lambda Legal:

Lambda Legal Marriage Project Director Jennifer C. Pizer said,
Forcing any minority to endure a barrage of lies and insults, ending with a vote that denies them full citizenship, is cruel – it's not the government our founders envisioned. Ballot measures driven by prejudice are poison; honesty and equality are the essential cure.
11/04/09 NY Times:

The NY Times reports that supporters of same-sex marriage have already begun to question the "state-by-state strategy" of enacting marriage-equality laws in states that do not have any bans on same-sex marriage:
Richard Socarides, who advised President Bill Clinton on gay issues, said such federal litigation [Perry v. Schwarzenneger]— along with a repeal of the Defense of Marriage Act — was the best hope for advancing same-sex marriage at this point.
Activists may still try to qualify a referendum on Oregon's constitutional ban of same-sex marriage. Nevertheless, Jennifer C. Pizer, marriage project director for Lambda Legal, told the Times that such ballot measures
tend to marginalize the group that is being targeted and inflame people’s passions in a way that is at best divisive and at worst terribly cruel.
She acknowledged, however, that targeting legislative reform, in states like Washington, may still work:
The effort there [in Washington, where voters appear to have approved Referendum 71] has been a steady building of support in the legislature. It’s unclear when they will ascertain there’s enough public support to change the marriage law, but it’s been a gradual process that will continue.
The National Organization for Marriage now plans to target states without constitutional bans as it pursues its own "state-by-state" elections strategy to increase the number of states that have them.

11/04/09 press release by the American Equal Rights Foundation (AERF):

AERF finances plaintiffs in Perry v. Schwarzenneger. Its executive director, Chad Griffin, said:
Our founding fathers did not intend for people's Constitutional rights to be determined by political campaigns. The results in Maine underscore exactly why we are challenging California's same sex marriage ban in federal court. When the Supreme Court ruled in Loving v. Virginia, more than 70 percent of Americans disapproved of interracial marriage. The U.S. Constitution guarantees equal rights to every American, and when those rights are violated, it is the role of our courts to protect us, regardless of what the polls say.
Thanks to California attorney Rick Xiao for helping me prepare this post.

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