Tag Archives: California

gay marriage & Equal Protection jurisprudence

Well, I loved the California same-sex marriage decision. Not just because it granted same-sex marriage, and not just because it said that the state needs to use the same term to refer to same-sex and opposite-sex unions, but because it significantly expanded Equal Protection jurisprudence.

For the non-law-geeks out there, federal and state constitutional guarantees of “equal protection” apply only to certain protected classes (“suspect classifications”), and now homosexuality, in California, gets the highest protection. Here’s how it works. When determining whether a law or action violates equal protection, a court will determine whether (a) a fundamental right is being violated, in which case the court will apply “strict scrutiny”; or (b) what classes of people are being treated differently. If the class is race, the court applies “strict scrutiny”, as it does with violations of fundamental rights. Gender gets “intermediate” scrutiny. The lowest level of scrutiny is a “rational basis review”. If the class has not been deemed a “discrete and insular minority” that has routinely and historically suffered discrimination, then the court applies a rational basis review — a much lower standard of review. Basically, a law that discriminates a class of people is okay under rational basis review, so long as the government has any rational basis for the action. Any law that creates multiple classes is subject, by default, to this review. For instance, “taxpayers” and “non-taxpayers”.

Courts have consistently declined to apply any heightened scrutiny to laws that discriminate on the basis of sexual orientation. Instead, they have applied “rational basis review with bite” — finding that some laws that discriminated against homosexuals did not even have a rational basis. For instance, Colorado’s Amendment 2 failed rational basis review. This is nice on the one hand, because it is an affirmative slap at the law, making it plain that really nasty discrimination is irrational. On the other hand, it makes it very hard to strike down such laws, because it doesn’t recognize the “class-ness” of homosexuality — the fact that gay people are treated as a class and routinely discriminated against.

So the California decision is the first to recognize that gay people are treated as a class and routinely discriminated against. Which means that, in California, we have a lot more protection now. And even if the right-wingers who are freaking out manage to define California’s marriage laws to exclude me and Michele, that won’t undo the strict scrutiny holding.

Ha.

the death penalty & tookie williams

A human being who was doing valuable work, and helping to make the world better, was killed in San Quentin, California, just after midnight, Tuesday December 13. [See SaveTookie.org for details of Mr. Williams’ anti-gang and anti-violence work.] “I could find no justification for granting clemency.” [Schwarzenegger Statement following Clemency Decision, 2005/12/12.] Tookie Williams was killed because he continued to protest his innocence. “Seven percent of those whose sentences were overturned between 1973 and 1995 have been found innocent.” [“Capital Punishment in the United States”, Wikipedia (12/13).] Tookie Williams was killed because Arnold Schwarzenegger, who has earned millions depicting various bloody and violent assaults, questioned the “efficacy of Williams’ [anti-violence] message”: “[T]he continued pervasiveness of gang violence leads one to question the efficacy of Williams’ message.” [Schwarzenegger Statement of Decision on Request for Clemency by Stanley Williams, p. 4.] Most importantly, perhaps, Tookie Williams was killed because it is politically expedient for politicians to be “tough on crime”. “Even if you assume he made the decision without political motivations, the political impact or ramifications certainly worked in his favor.” [Dan Schnur, Republican strategist, quoted in the Washington Post.]

Throughout Africa, Asia, and the United States, people face death at the hands of their own government. [Capital Punishment, Wikipedia (12/13).] Since 1976, the United States alone has put to death over a thousand people. The application of the death penalty is significantly affected by race and geography. Roughly 780 people (78% of the executions) have been killed in southern states comprising approximately a third of the United States popoulation (Texas, Virginia, Missouri, Florida, Georgia, North Carolina, South Carolina, Alabama, Arkansas, Louisiana, Mississippi, Kentucky, Tennessee). More than one-third of those executed in the United States since 1976 have been African-American. Most (perhaps 80%) of death penalty cases involve a white victim. As of July, 2005, over 3400 people are currently on death row in the United States. [“Capital Punishment in the United States”, Wikipedia (12/13).]

One such person is Cory Maye, a black man sentenced to death in Mississippi, for killing a white cop who entered his home after midnight while Maye and his toddler were sleeping. You can read more about Cory Maye’s case at the Agitator. And you can read more about the three thousand other death penalty cases in the US at these sites:

Amnesty International USA: Abolish the Death Penalty.
National Coalition to Abolish the Death Penalty
Death Penalty Moratorium Project (American Bar Association)
ACLU: on the Death Penalty
Death Penalty Information Center

‘true name’ bill signed

Sigh. Now i know why i was feeling kinda blue today: On Wed, 9/22, Schwarzenegger signed SB1506, the so-called ‘true-name’ bill, which requires anyone putting copyrighted content on a p2p system to include their name and contact information. [Sacramento: Governor signs Internet piracy bill: E-mail address required to share movies, music online by Mark Martin & Lynda Gledhill — sfgate 9/22]. Certainly it wasn’t a surprise — this bill has been steamrollering through since early this year. But it doesn’t make my day any better.

Highlights: this line from the article:

Last week [Gov. Schwarzenegger] signed an executive order prohibiting state employees from using software designed for file sharing.

Ummm … like TCP/IP? AppleShare? The web? Might make it hard to do business …

And in related news: Donna Wentworth pointed to another recent state-law copyright case [U.S. v. Jean Martignon, 03cr1287 (SDNY 2004)]: The court struck down an anti-bootleg law because it didn’t recognize copyright terms. (Attn, Gov. Schwarzenegger: Is that the drumbeat of p-r-e-e-m-p-t-i-o-n sounding in the distance … ?)

The bill, SB1506/AB (pdf as chaptered), reads:

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