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I don't know what the hell bizarro universe I woke up in today, but I kinda like it. Democrats proposing tax cuts? In my Congress? It's more likely than you think...



Don't miss the money shot at 5:11 -- "particularly when we're using a Chinese credit card to pay for it all." Boo yah.

This should go without saying, but I'll say it anyway -- call your Congresscritters. Make this happen.

(h/t [livejournal.com profile] rialian)
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I have a favour to ask of all of you. It will take about half an hour to an hour of your time in the next week, though first, for context, you should go read about what happened to Peter Watts.

TL,DR: Canadian science fiction author is accused by Michigan border guards, while he's on the way back to Canada, of having assaulted them. In court, it came out that although the guards struck Watts several times, Watts never raised a hand against the guards. However, he was still found guilty because the law places "failure to comply with a lawful command" -- in this case, a guard's ordering him to lie down -- as "obstructing a federal officer," and "obstruction", by the wording of the law, is considered to be as much of a crime as assault is.

Yes, Americans, Michigan just convicted a man for not lying down and groveling fast enough. The jury, at one point during deliberation, sent a question to the court: "Is failure to comply sufficient for conviction?" It doesn't get a lot clearer than that. And one thing that's especially clear to me is that this is a jury that had no idea what jury nullification is.

See, one thing the American court system has fallen all over itself to hide from the people in the last several decades is the fact that jurors are not only triers of fact: they are also triers of law. The jury is charged not only with determining whether the facts of the case indicate that the defendant did what he was charged with or not, but determining whether the law is a valid one or not. If the jury decides that the law is unconstitutionally vague, or unjust, or applied unjustly, the jury has the right and the authority to find the defendant not guilty, whether the facts of the case support the allegations against the defendant or not.

Jury nullification is one of the oldest components of the common-law tradition upon which US law is based; it dates back to at least the 1500s and probably earlier. It has been applied in the United States both before and after the country was founded; it has been used to acquit Underground Railroad conductors accused under the Fugitive Slave Act, bootleggers during Prohibition, and, less admirably, whites accused of murdering blacks during the era of the Civil Rights movement. (It's a tool. Like a hammer or a gun, it can be used for good or for evil, but the tool itself is morally neutral.)

If the jury in the Watts case had known about jury nullification, they could have said, "It's ridiculous to convict someone of a felony for not lying down fast enough; the law is worded unjustly, and we're not going to convict, on those grounds."

"But, Meredith," I hear you say, "how do you know that the jury didn't know about nullification?" I don't, but I'd put the chances at greater than 80%. The easiest way to get removed from juror selection is to let it slip to the judge or the prosecutor that you know that jury nullification exists. In 1969 and 1972, the Fourth Circuit and the District of Columbia (respectively) ruled that the court may deny the defense the ability to instruct the jury about the possibility of nullification, and in 1988 the Sixth Circuit (which unfortunately includes Michigan1) upheld a judge's instruction that "there is no valid jury nullification".

Let me spell that out again: the court has recently granted itself the right to refuse to even let the jury know about one of its powers that has a tremendous ability to affect the outcome of a case. The courts are deliberately depriving jurors of one of their most traditional rights, and deliberately depriving defendants of one of the most traditional, if rarely exercised, opportunities for acquittal.

However, the fact that the courts want to put jury nullification down the memory hole doesn't mean that it's going to go there quietly. We have the ability to keep it alive, but we're going to have to work for it.

So here's what I want you to do.

This week, I want you to find three people who don't already know about and understand jury nullification, and explain it to them. They can be Americans, Canadians, Britons, Australians, or anyone else who lives under a legal system derived from the British common law. You don't have to get them to agree with it; just get them to understand it, and to understand that this is a legal right, enshrined in over 400 years of jurisprudential history, that the courts have attempted to dispose of in the last 40 years. You can send them an email or link them to this post if you want, but it's best to do it in person. And get them to promise that they will also find three more people who aren't familiar with jury nullification, bring them up to speed on it, and get those people to spread the word. And so on, and so on.

It is said that rights exist only so long as they are exercised, but more fundamentally than that, a right can only be exercised if people know it exists. I am not asking you to exercise the right; I am asking you to help make sure that this right is not banished into oblivion by such an odious little thing as ignorance.

If you will do this, please leave a comment.

1I still need to read the decision in U.S. v. Krzyske, whence comes that ruling. If a Michigan jury were to nullify a law, must a mistrial be declared? If subsequent juries continue to nullify, does that mean that they just have to keep retrying and retrying until someone runs out of money?

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This work by Meredith L. Patterson is licensed under a Creative Commons Attribution 3.0 Unported License.
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Via [livejournal.com profile] fjm, British government finally apologises for its appalling treatment of Alan Turing and other gay men.

By any sensible definition of sainthood, Alan Turing ought to have been canonised long ago (along with Alonzo Church, Haskell Curry, John Backus, John von Neumann, and a small host of other dead computer scientists, but that's another story for another time). The ability to capture something as powerful and as potentially complex as recursively enumerable computation in an idea as straightforward and easy-to-understand as the Universal Turing Machine is the stuff of legends, and the sheer breadth and depth of innovation that the Von Neumann architecture -- inspired pretty much directly by the Turing machine -- has made possible over the last sixty years is nothing short of miraculous. (Well, apart from the fact that we can trace the developments and where they came from, all the way back to the source, which is not common with miracles in the traditional sense. But I digress.)

No, I'm not asking the British government to fall all over itself in self-flagellation for what it did. Gordon Brown's apology is frank and dodges no bullets, and the lack of weaselling is commendable. I am asking, though, that the government keep in mind, moving forward, that it drove one of the most brilliant minds of his generation or any other to suicide over the crime of being different, and to adjust its policies accordingly.

I do not know, and cannot reasonably predict, what Alan Turing would have made of the rest of his life had he lived it to its natural end. Like all the great hackers, curiosity was forever nipping at his heels, and it could have driven him anywhere. Perhaps he would have pursued his passionate interest in human consciousness, or come up with a formalism for an even stronger computational mechanism -- the kind of thing we've blackboxed as an "oracle" for the last sixty years. Perhaps he would have settled down with a nice boy and taken up gardening. That would have been great too, because hey -- it wouldn't have been a life full of undeserved surveillance and forced chemical castration. People do better things with themselves when they're not under that kind of stress.

No, British government, it does not make it any better when you go from just keeping the queers under surveillance to putting everyone under surveillance.

And for everyone else -- let this serve as a lesson to you. Keep an eye on what your watchmen are doing to the different among you, because you're next. This is how social control works: test your procedures out on an "undesirable" sector of society, because who cares about them anyway, and refine the procedures to the point where they're still useful but are statistically unlikely to provoke much in the way of outrage. If the undesirables later lose their undesirable status, apologise for the ones you killed, and keep on going.
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In the comments to my last essay, [livejournal.com profile] editer writes:

Given [the fact that extremist right-wing radio and TV hosts are encouraging people to show up armed to Obama speeches, among other things], is it any wonder that the sight of gunmen at Democratic events makes a lot of us nervous?

The thing is -- if they succeed in making you nervous, you're letting the terrorists win. That's right, I just called Rush Limbaugh, Glenn Beck and their scum-sucking ilk terrorists, because that's what they are: they preach divisiveness from their bully pulpits in order to inspire hatred in their followers and fear in their targets. Those are terrorist tactics. And they have every expectation that their targets' response to this particular fear tactic will be to recoil in horror and redouble their efforts to restrict or ban firearms, thus further angering the Loyal Followers and driving even more of a wedge between what they view as their useful minions -- the right-wing authoritarian followers -- and their useful targets, which is to say, people like you and me.

Nothing -- I repeat, nothing -- would turn the tables on the Limbaughs and Coulters of the world more than a group of peaceful, armed progressives showing up at one of these rallies. It's just not in the script. They haven't planned for it, they wouldn't know what to do with it. And they'd do exactly what they've always done when someone goes off script and throws them for a loop: rage, fume, and weaken their own credibility. They're hilariously predictable in this regard.

Now, as Bob Altemeyer explains quite lucidly -- I'm a convert, I'll admit it, the science sold me -- this doesn't mean that they'll end up driving away their flock. Authoritarian followers will perform truly amazing contortions to avoid having to come to the conclusion that one of their Chosen Leaders is wrong. But you don't have to strip away the followers to strip away the power; point of fact, it's more effective to strip away the money. And when these bozos flip out, they go off script and say dumb, offensive things. We can use this against them. ELEVEN major corporate advertisers have dropped their sponsorship of Glenn Beck's show thanks to pressure from citizens like you and me who object to Beck calling Obama a racist. ConAgra. Geico. Sanofi-Aventis. LexisNexis. These are big companies with lots of money in their pockets, and the more we can inspire the Becks of the world to show what giant assholes they really are on nationwide television, the greater the likelihood that we can convince these major corporations to pull out of Fox News entirely. Do that enough, and they're gonna have to start firing some people.

So why not show them that we're not afraid of them, and let them hang themselves with their own rope?

Seriously. I want to see a dozen gay couples show up to one of these events, carrying signs that read "Health Care For All", "Right to Keep and Arm Bears", and "Gay, straight, black, white: marriage is a civil right", every last one of them with a holstered pistol. Now there's a front-page photo for you.
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So apparently a guy decided to show up today to an Obama speech in Arizona while carrying a pistol and a semiautomatic rifle. (He didn't want to give reporters his name, but that's him in the foreground in the picture over there.) Good for him! He and William Kostric have both conducted themselves admirably, declaring for all to see, "I am a citizen who is well-informed of my rights and responsibilities under the law, and I will acquit myself in a law-abiding fashion." We need more upstanding citizens like these guys.

This afternoon, on Twitter, I was reminded of why.

See, although I've never hidden the fact that I love the Second Amendment and believe that it's one of the most important founding principles of American government, I've never really gone out of my way to engage people about it like some of y'all are wont to do. I prefer to do my activism on a one-on-one basis, by shaking up people's expectations. If you've never been around guns, if none of your friends are gun owners, if your only exposure to guns has been violent movies and reports on the six o'clock news about people being shot during robberies, it's easy to think of gun owners as Those People who Aren't Like Us. It's easy to conflate gun owners with closed-minded rednecks who would rather put a bullet through a queer or a feminist or an anti-war protestor than have to live in the same society as them.

It's a bit different when you find out that the woman who just walked three miles through the streets of San Francisco with you in the Trans Pride March, who goes to raves with you and wants drug laws to be completely overhauled and blogs in favour of gay rights, is just as proud of being a responsible gun owner.

I found out about the fellow in Arizona through someone I don't actually know: some guy on Twitter who started following me yesterday. He had some interesting links, so I followed him back, and he tweeted a link to an article about the guy in Arizona. I tweeted back that as long as he conducted himself peacefully, that was great news. This kicked off an hour-plus-long debate which, apart from a couple of interchanges with antagonistic people at a Diversity Fair at the University of Iowa where some friends and I had a booth representing the gun culture, was really the first frustrating conversation about guns I've ever had. I guess I'm lucky.

See, in the Sassaman household we have two rules for houseguests: if you use the stove, make sure you turn it to the "off" position that really is "off" and not the "off" that leaks gas, and you must understand the four rules of firearm safety and show us that you can safely unload the guns we keep in the house. That's it. You can use our shampoo, if it's in the fridge it's fair game, we don't mind if you walk out of the shower in the altogether -- but we expect and require you to know how to be safe with the two dangerous things in the house. We'll teach you basic gun safety and step you through all the physical stuff, as many times as you need or want, but if you're not willing to do that, you're going to need to find somewhere else to crash. (We'll help with that too.)

It's pleasantly surprising just how much this opens people's eyes: discovering that wow, there actually are People Like Us, people who share Our Values and fight for the same things we fight for, who are also passionate about gun rights. I don't know exactly what goes through their heads, but I like to think it's something along the lines of, Huh. Maybe guns aren't as scary and alien as I always thought they were. Maybe they really are just tools, just inanimate objects that take on meaning only in the context of whoever's holding them.

You know, like a dude in Arizona carrying a pistol in a holster and a semiautomatic rifle in a resting position over one shoulder with the barrel pointed safely at the ground.

What I didn't expect, today, was just how much context some folks want to assume, even in the absence of any evidence whatsoever to support those assumptions. Twitter-guy ranted, angrily and at length, about a "greasy redneck cowboy" he'd seen in a grocery store the other day, openly carrying while doing his shopping. He accused this man -- who he didn't exchange a single word with -- of being "afraid" and "paranoid", and said that he "was sorely tempted to grab it and make him shit his cowboy pants."

I was flabbergasted. "Wait," I said, "so you think it's OK to just walk up to some dude in a supermarket and assault him if you don't like what he's holding?" Well, yeah, apparently he did. That blows my mind. If you wouldn't walk up to some dude in a supermarket and snatch his backpack off his shoulder, why on earth would you walk up to some dude in a supermarket and snatch his gun off his hip? (Uh, or try to. Good luck with that, by the way.) 

The conversation continued, with Twitter Guy launching invective left and right, while I did my level best to answer his rhetoric with reason, his anger with level-headedness. I won't recap the whole thing here -- you can go read it on Twitter if you really want to -- but the one thing that really struck me, throughout the conversation, was the sheer depth of his conviction that those of us who support gun ownership and the right to carry in public do so out of fear. He labelled me "insane", he labelled gun owners of his acquaintance as "paranoid" and "nutcases". I shrugged off the name-calling -- dignifying it with a response never helps -- but he kept coming back to it, again and again, demanding to know why someone would carry a gun in public if they weren't afraid of something.

At the end of the conversation, just before I called a halt and went to dinner, we were on the subject of when it would or wouldn't be appropriate to use a firearm in self-defense in a built-up area. "If there's a rapist in my face," I said, "I'll take that chance." And when I got back from dinner, what do you know, a snarky response about "See, you claim you're not afraid, but your words say differently."

That, ladies and gentlemen, pissed me the hell off. I don't know about the rest of y'all, but I do know women who have been violently raped by complete strangers. (I won't out them here; that's their choice, not mine.) I'd trade my right arm for the chance to go back in time and make sure they had a loaded handgun and the skills to use it on the night they were raped. You know why? Because trying to frame the discussion about self-defence rights in terms of "fear" versus "lack of fear" is more than disingenous, it's an out-and-out lie. English has words like "concern" and "qualm" and "doubt" and "dread" and "paranoia" and "unease" because fear is not a binary, it's a continuum. We have the phrase "healthy concern" because there is such a thing. I'm "afraid" of being in a situation where I might need to defend myself with deadly force the same way I'm "afraid" of having my bad ankle go out under me and dump me on my keister in the street: I wear stiff boots to keep my ankle from buckling, and when I'm in a situation where it's lawful for me to do so, I carry a handgun. 

So I told him his male privilege was showing, and that was the end of that.

I support gun rights because I support civil rights, plain and simple. I cheer every time a woman plugs a would-be rapist, every time a PoC plugs someone trying to assault them because of the colour of their skin, every time a queer plugs a would-be gay-basher. It's not that I especially like violence; the bare truth of it is that some people will listen to nothing else. Some people hear "it's wrong to physically harm people because of the colour of their skin, or what's between their legs, or because of who they love" and it just slides right off as if they'd never heard it. Am I saying "let's go shoot all the racists"? If you think that, you haven't been listening: firearms are a tool for self-defence, and I don't mean "the best ~ is a good offence". Nobody likes to admit it, but if you're a minority in the United States, there are people who believe, as surely as they believe that the sun will come up in the east tomorrow, that your mere existence is a killin' offense. These people are wrong, and if one of them attacks your person, then for God's sake just shoot the motherfucker. If just ten percent of the gays and lesbians in America were to learn how to shoot and carry handguns, there'd be a lot fewer Matthew Shepards or Paul Broussards or Brandon Teenas or ... well, you can read up for yourself if you don't already know.

This is what William Kostric means, by the way, when he says "an armed society is a polite society." And so do I.

But I wonder, because I know some of you reading disagree with me -- what is it you think we're afraid of? 
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I recently learned that a disabled friend of mine, who has a connective tissue disorder and gets around with the help of various assistive devices and a service dog, has been getting hassled by neighbours who want everyone to park at one end of the street and walk home during the day when kids are playing (and have gotten a city street permit to this effect, though they're using it inappropriately -- they can't legally block residents from driving to their own homes, but they're doing it anyway.)

That alone is plenty out of line, but when my friend went to talk to her neighbours about why this wasn't going to work for her, they blew her off -- one of the reasons being "well, Mr. So-and-so is 92 and he doesn't mind."

News flash, people: being old and being disabled are not the same thing. Some old people are ridiculously healthy and spry -- my granddad was still climbing ladders to fix stuff in the garage when he was 90, and the first indication that nature wanted him to slow down was stage 4 lung cancer. (He died two months later.) Certainly there are disabilities that are more common among the elderly -- you don't see a lot of young people with Alzheimer's apart from that one poor family in Holland -- and many chronic conditions, such as polycystic kidney disease, tend to worsen over time, but being old does not mean ipso facto being disabled.

Everyone reading this will either get old or die young. Some of you will get old and never slow down; some of you will end up with osteoporosis, or arthritis, or diabetes. Perhaps the correlation between age and disability makes some people uneasy around young people who walk with canes or have motorized chairs -- perhaps it makes them think of their own inevitable mortality someday. But people who are young and disabled are disabled now, and it's inhumane to pretend that their problems don't exist.

Perhaps if we can get people to realise that disability and age aren't as causally linked as people seem to think they are, both the elderly and people like my friend won't have to put up with this kind of rudeness any more.
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A mathematical argument for affirmative action, presented by [livejournal.com profile] michiexile.

This tickles data-mining brain, because there's a notion of fuzziness that [livejournal.com profile] michiexile gets into -- your fitness function will only ever be so good. Thus there's a probability problem (that I'm not quite sure how to set up) that basically answers the question of how many people you need in your pool of "perfect" (or "adequate", which is to say, "will achieve all performance goals set before him/her") candidates, if your fitness function is known to have some errors, in order to be reasonably well assured of having a candidate who really is equal among firsts. There's probably a birthday problem in there somewhere *flings up hands* -- this is a bit out of my depth, I could probably sort it out in a few hours if I had my library with me, but one of you probably knows how to fit it together. [livejournal.com profile] martian_bob, you do this for a living ... anyone else? [livejournal.com profile] michiexile? [livejournal.com profile] coheleth?

I guess you want a fitness function that prefers false negatives (rejecting a candidate who would be qualified) to false positives (adding to the pool a candidate who actually isn't qualified). But naturally you want to minimize both, to the extent possible. *pounds head into wall* Data mining 101, where did you gooooo ...

Anyway, once you can bound your desired candidate pool size based on what you know about the accuracy of your fitness function, then you can talk about whether your candidate pool is large enough to be assured success no matter who you choose. Thus we eliminate "oh, he was hired only for his race / she was hired only for her gender" trash-talk, because we have some standard of proof of fitness for the decision criteria. (Or if the steel mills really are refusing to hire Irishmen, we can tell.) We probably also create a useful tool in battling salary disparities.

Discuss.

Oh, and I'm also implicitly suggesting an open standard for representing/documenting hiring criteria.
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Matters of law are meant to be tried and decided within the framework of the law, not the court of public opinion.

Anyone trying to convince you otherwise has an ulterior motive.

In related news, on March 5th, 2009, from 9am to 12pm, the California Supreme Court will hear oral arguments in the matters of Strauss v. Horton, Tyler v. State of California, and City and County of San Francisco v. Horton. [livejournal.com profile] joedecker reports that The California Channel will be broadcasting the events live.

The California Channel also does streaming webcasts, so even if you can't make it to the courtroom in San Francisco, you may be able to watch the proceedings from the comfort of your own browser. They only publish their schedule a week in advance, but check the listings the first week of March to see if it'll be webcast. I plan to liveblog the proceedings here, for my own entertainment and that of anyone else who happens to enjoy my admittedly biased commentary. :)
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By way of [livejournal.com profile] joedecker: the CA Supreme Court will hear all three petitions filed in response to Prop 8, but will not stay enforcement of the amendment.

So, not the best possible scenario, but not the worst either. The Court's order, given today, is here; no opinion is given as to why the request for stay of enforcement was denied. Conveniently, the Court has provided us with an omnibus of filings related to Prop 8 in their "high profile cases" section. Each of the three cases has a section called "Letters requesting denial of petition and request for stay"; I have not had time to read through them, though I will do so later and summarize the argument as I'm able. (It's been a busy couple of weeks over here.)

Glancing over the letters, I noticed two interesting things. First, though most of those letters are calling for a denial of certiorari and a denial of the stay, the Pacific Justice Center calls for a denial of writ on Tyler v. California and City and County of San Francisco v. Horton -- but only a denial of stay in Strauss v. Horton. (The Center for Constitutional Jurisprudence wrote one letter about all three cases. From a 30-second glance, it appears that the American Center for Law and Justice sent three separate but materially similar letters, one for each case.) The PJC's argument for denying the stay in Strauss v. Horton is a status-quo argument -- "same-sex marriage was only allowed for a couple of months, the status quo for most of the history of California has been no same-sex marriage" -- but I am curious why they did not call for a denial of certiorari as well.

Second, check out who the letter-writers are under Strauss v. Horton. Most of them are law firms or policy institutes. But one of them is under the name of a nonprofit organisation which, apparently, consists of just one woman who styles herself "Heiress Of The Almighty Eternal Creator" [sic] and purports to also be filing on behalf of said Almighty Eternal Creator (!), and one of them is under the name of just one guy. (Yes, their addresses are on the PDFs. I am going to be very, very upset if I hear about people TPing their houses or something, just FYI.)

Welcome to America, folks. Follow the rules of civil and appellate procedure, make sure you provide proof of service to the appropriate parties and meet the filing deadlines, and you, too, can have anything from lucid, reasoned argumentation to ranting whackjobbery and wild claims about your divine nature entered into the court record as an amicus curiae letter. It's your right to do so and it's the court's responsibility to handle it.

Point being, though -- if you want to have your say before the Court, those are some mighty nice templates to follow. You'll probably want to check out the petitions in support of the petitioner, as well, to make sure you're serving the right folks. Their addresses, and the formal language you'll need to establish that you served the petitioners and respondents correctly, are at the back of each letter.

So what are you waiting for? Let's see some amicus curiae letters! I don't care if you're in California or not -- judging by the number at the top of the fax they sent in, the American Center for Law and Justice is in Virginia, and all three lawyers signing their letters state that they're not admitted to the California bar.

Today's order, by the way, also orders the following:
  • Secretary of State Bowen requested to be dismissed as a respondent; the Court granted the request.
  • "Proposition 8 Official Proponents et al" moved to intervene in all three cases; the motion was granted.
  • "Campaign for California Families" moved to intervene in all three cases; the motion was denied.
  • A number of state agencies and offices (including the Attorney General), as respondents, are ordered to show cause why the petitioners' requests should not be granted. (This is standard; these state agencies are the ones being sued. Can they say "Um, actually, we think they should be granted"? That's what I want to know.)
  • Anyone who wants to file an amicus curiae ("friend of the court") brief has until January 19th. Again, get cracking!
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By now I'm sure many of you have seen Ze Frank's latest project, From 52 to 48 | 48 to 52 With Love.

Here's my contribution. )
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Okay, so if you're a gay person or part of a same-sex married couple in California, what happens to you?

Attorney General Jerry Brown has gone on record that he will uphold all same-sex marriages already performed. If you were married yesterday, you're still married today. City halls in at least some towns have stopped offering marriage licenses to same-sex couples as of today. I'm not sure whether, if you could talk someone into giving you one tomorrow, it would still count.

An interesting wrinkle: what happens if you paid for your marriage license already, but haven't actually gone and picked it up yet? When L. and I got married, we paid for the license online a week ahead of time, then had our ceremony at San Francisco City Hall and had it signed and dated there. San Francisco, at least, says that if Prop 8 passes, even if the results aren't determined till after November 5th, it will (probably) be effective retroactive to November 5th. So I hope everyone who was planning on entering into a same-sex marriage did so before today.

Now for the near future. [livejournal.com profile] feyandstrange shares the news that the ACLU has filed for an immediate stay of enforcement on Prop 8 (similar to what happened when San Francisco banned handguns). If the court grants the stay, then it's business as usual and you can go get your marriage license as long as all other qualifications are met (e.g., you're not already married, you're not marrying a minor, &c). The filing also requests that, if Prop 8 is determined to have passed, the Court render it null and void on the grounds that it "attempted to effect a revision of the Constitution without complying with the constitutionally mandated procedures for enactment of a revision set forth in Article XVII of the California Constitution".

So, this could go one of several ways, depending on whether the Court grants the stay and whether Prop 8 actually received a majority of votes. I think it's likely that they will grant the stay, given that two of the petitioners in the ACLU filing are a couple who have been planning to get married for a while, but one of them has a parent who has been too ill to travel for their wedding. I'm not a lawyer, but that strikes me as cause for immediate injunctive relief.

The worst-case scenario is the one where the Court grants neither the stay of enforcement nor the petition to nullify Prop 8 if it passes. That could happen. If it does, then we have to go to federal court to get this reversed, and that's going to be harder. Addressing this in federal court will either mean getting SCOTUS to consider same-sex couples a suspect class -- which thus far they've been unwilling to do -- or coming up with an argument that doesn't rely on the Equal Protection clause. The Full Faith and Credit clause won't work, because the Defense of Marriage Act specifically provides that states need not recognise same-sex marriages performed in other states (though this is a fine opportunity for a couple who's moved from Massachusetts or Connecticut to California to mount that argument against DOMA). I had this vague, crack-addled idea about using the Commerce Clause with respect to couples who traveled to California to get married, went back home, and found their California marriages invalidated, but if Brown doesn't invalidate existing marriages, then that point is moot. It's going to take hard work and a lot of research to get this before SCOTUS, if it comes to that.

That said, working this from the state angle first gives us the opportunity to stall for time; it will take several months at minimum for this to go through the courts, and while I don't think it's likely that we'll see a change in the makeup of the SCOTUS any time soon, we can still use that time to think of how to address this if it does have to go to federal court.

As a side note, one aspect of this filing that I find kind of shitty: the respondents named in the petition are the State Registrar of Vital Statistics, his Deputy Director who handles the forms for marriage licenses and certificates, and the Attorney General, all in their official capacities. The petitioners are asking that the respondents be held responsible for court and attorneys' fees. I hope this means that the Department of Public Health and the Attorney General's office have to shell out, because this is so not these people's fault personally.

[livejournal.com profile] rebbyribs (and my parents, incidentally) ask, "How does the State of California determine the sex (or gender?) of a couple getting married? If Prop 8 is applied, do intersex people lose the right to marry?" This is probably based on what's on whatever form of ID you present when you apply for your marriage license. Intersexed persons generally get put into one bucket or the other at birth (and the issue of whether this is at all fair or right is a whole 'nother can of worms); those who end up identifying as the gender other than the one on their birth certificate have to go through the same giant hassle that transfolk do.

Anyway. For the next few days, keep reading the news, hold your head high, and don't give up the ship. The ACLU knew this was a possibility; nobody puts together a 64-page brief in one day, especially when there are eight different groups of counsel in three different cities involved. (If I'm wrong on that, then holy shit these people are machines.) Now is a great time to learn more about your legal process, how it works, and your rights as a citizen, and to educate your friends and family. We've spent the last several months of our lives passionately involved in the electoral process, which is a central aspect of American citizenship. We have the opportunity now to move that fire and momentum into the judicial process and just keep the train a'rollin'.

We're making history here, folks. Today, Prop 8 feels like a defeat. In ten years, it will be a footnote.

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This work by Meredith L. Patterson is licensed under a Creative Commons Attribution 3.0 United States License.

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September 2010

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