American Reality

This morning I saw a report in regards to the revelation that the NYPD was doing undercover (secret) surveillance of various Muslim organizations. This included mosques, student organizations and businesses. The report underscored some trends that I have noticed in regards to newcomers to the US and their [mis]understanding of what actually goes on here.

The piece has the following:

the news is having side effects: prompting some Muslims to stop frequenting places out of fear of being monitored, or avoiding discussion of politically sensitive topics...

"A lot of families are pressuring their sons and daughters to either not be involved in anything to do with the Islamic Center at NYU, to not pray there, to not go, to not hang out with other members,"

Hunter College Muslim Students Association posted a sign asking students to refrain from having political discussions when initial reports of NYPD surveillance surfaced last year.

Imam Al-Hajj Talib Abdul Rashid, president of the Islamic Leadership Council of Metropolitan New York, says that while African American Muslims haven't changed their patterns of worship at mosques, Muslim immigrants have. [my emphasis]

I believe that the emphasized text is very important here. African-American muslims, like most all other African-Americans (those being the descendants of the slave trade, not the new arrivals) are well aware of how the government, on all levels, act towards certain "minority" groups. We know that the government, from the very top was involved in infiltrating and disrupting our organizations who's ONLY purpose was toe secure ourselves against racism and certain elements of White Supremacy.

We have read the FBI files on Martin Luther King Jr. We read the FBI files on Malcolm X. We know of the stated purpose of COINTELPRO to disrupt these organizations by various means . We know that any of us who have said, written or so much as viewed something considered "radical" or "pro black" that someone somewhere has a file with our name on it.

We know that the government on every level was convinced that the Black struggle in America was a Communist plot using "Dumb negros" (their words not mine) to further it's aims.

With this knowledge none of us should have been surprised when it was announced that the NYPD was doing surveillance on Muslims in America. As a matter of fact I would hazard to guess that most of us would have been surprised if the NYPD was not engaged in such behavior.

The problem is that many recent immigrants, particularly those coming from countries with oppressive regimes, have bought into some fairy tail fantasy version of America where the government is benign. This mistaken assumption that "America doesn't do this" is why so many of these "new" Americans are so shocked at the news and reacted just like many African-Americans did (and do) when their children or other loved ones became interested in "the black struggle": Telling them to not hang out with those potential radical organizations and people because as to not "catch the eye of the government".


Welcome to America.

What these new immigrants are going to learn is that so long as some members of their group are seen as threats, the entire community is liable to have COINTELPRO type actions made against them. The real difference between the secret police of the regimes that many of the recent immigrants have left and the one they are currently under is that the here it is far more sophisticated and done in a "respectable" way. Citizens here have far more leeway to critique the ruling government which is generally pacifies the general public. However make no mistake, the US has "secret police" just like every other nation that is interested in maintaining institutional power.

This kind of willful ignorance is how we have a civil war going on in Syria and the US talking about who is a war criminal and how the government should stand down, when back in the 90's the government sent in tanks and bombed a compound of religious nut after attempting to serve them with a warrant for allegedly stockpiling "illegal" arms (That's Waco for those who do not know). So how the US can straight faced tell the Syrians what to do to challenges to their authority is beyond hypocritical (this does not serve as an endorsement of the Syrian government's actions).

I would say it would be of great benefit of recent immigrants to learn of the actual history of the United States so they fully understand how this particular system works.

More On That Union Busting Bill

To appreciate what that means, try to imagine a Republican president and Republican Senate majority leader signing off on a bill with pro-union language despite thundering objections from most big businesses. Your imagination may not be good enough to picture that, which tells you everything you need to know about the asymmetry between Democrats and Republicans when it comes to labor.

Just had this conversation. Obama is able to pass things that couldn't have been done without major noise from "liberals" had a Republican president tried it.

On another note is anyone else bothered by a rule about union voting being a part of an FAA Reauthorization Act? What does a rule on how unions vote, or do anything a part of FAA authorization?

Hypocrisy in Syria

I neglected to post a link to this when I first read it but it deserves a look:

In 1993, the first year of the Clinton administration, federal agents launched an armed assault on a religious group in a compound outside Waco, Texas. The Feds deemed the compound and the Branch Davidians therein, headed by David Koresh, an affront to their authority. After seven weeks, Attorney General Janet Reno concluded that negotiation with the besieged Christian fundamentalists was useless and ordered an assault. Seventy-six Branch Davidians were burned alive. Autopsies showed that five children were among those shot to death by federal agents. The outcome was widely endorsed by the national press and Attorney General Reno commended for her resolve.

No one could doubt that determined separatist activity or armed challenges to the government of the United States are always met with immediate, overwhelming and lethal ferocity. For further historical illustration I recommend an interview with any moderately informed American Indian or black.

I said the same thing when I wrote about the goings on in Libya. Does anyone really think that the US govt (inc.) would allow folks to simply up and rebel with arms and sit back and allow it to happen?

Barack Obama Deals Crippling Blow to Unions, Black Economic Self-Help

A single 3 day strike by the black led New York City transit workers in 2005 protected the homes, the medical care, retirement security, college educations and living standards of more black families than the half-dozen wealthiest black Americans – that would be Oprah, Puffy, Bob Johnson, Tiger Woods, Bill Cosby and some real estate guy have employed or helped in their entire careers.

Think about that.

Santorum on Income Inequality

Charles M. Blow quotes Rick Santorum in his recent opinion piece in the NY Times:

Santorum said, “I’m not about equality of result when it comes to income inequality. There is income inequality in America. There always has been and, hopefully, and I do say that, there always will be.”

Unbelievable. Maybe not, but stunning all the same.

Unbelievable? Maybe. If you are in denial that statement is probably shocking to you. If you are not in denial then when you read that statement your response would have been something along the lines of: "And?"

I have found it to be the case that not a few people in America are under the impression that they are somehow owed equal outcomes. It comes as a shock to them that there is no such thing. The only thing one may have a right to is equal opportunity, but outcome? Nope.

Certainly this is not something you generally say to the public during a campaign, but that says more about the American public than it says about the candidate.

Certainly Blow is right in his concern about Detroit but that doesn't excuse him for painting Santorum's statement as out of line.

Of Contraception and Constitution

There is a lot of back and forth on the recent back and forth between the Council of Catholic Bishops and the Obama administration over the mandate that all businesses, including those that are run by religious organizations provide coverage for contraception in their health insurance plans. The issue has been framed by interested parties in the most inflammatory ways possible. On the right we have claims that the Obama administration is waging an all out war against religion and on the left we have claims that the Republicans are trying to control women's bodies and specifically ban contraception. While there is truth in both claims, neither of them are actually relevant to the specific topic at hand but only serve to cloud the actual relevant issues that should be discussed.

If one looks at the common commentary given by random "liberals" you will see a very anti-religion, specifically anti-Christian strain in the commentary. This cannot be denied by anyone who is honest. Even if you agree with the general critique of "The Church" you must admit that not a few liberals would love to dictate the religious liberties of certain religious people (if not ship them out the country as soon and as fast as possible).

On the right there is a concerted effort to ban abortion and other reproductive choices of women. This is undeniable. Due to this fact it is easy, if you are against these efforts, to be alarmed at anything the right is for. As easy as it is to fall into these two camps, the problem with taking sides in this particular case is that neither concerns are relevant. What no one is talking about much, if at all, is what the relevant law is on this matter. In this entry I'm going to lay it out.


The Constitution

Nowhere in the popular discussion of this recent controversy have I seen from my friends on the left is any mention whatsoever of the U.S. Constitution. This is particularly bothering because it seems to me that they, just like their counterparts on the right are fully prepared to trash the Constitution if it serves their own purposes. These same folks were very quick to point to the Constitution when the issue was so called "anchor babies" or "voter ID laws", but suddenly they are all mute on the Constitution. So let us look at the relevant passages.

The First Amendment to the U.S. Constitution reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Congress cannot pass a law (and since the executive cannot pass laws, they cannot make rules either) respecting the establishment of religion or prohibiting the free exercise thereof. What does this mean?

Firstly this means that the Congress cannot establish a church. For those familiar with the history (which should be anyone moving their lips on the subject), the reason that the English first came here was due to religious persecution by the king of England who was also the head of the officially established Church of England.

So first and foremost the First Amendment prohibits the establishment of a "Church of the United States".

Secondly the Congress cannot pass any law; none whatsoever; that prohibits the free exercise thereof. Now I'm not clear as to whether this means that say human sacrifice could not be outlawed (it is illegal to kill) but I'm going to err on the side that the intention here was not to allow for what would be considered criminal behavior being covered by religion. So for the sake of argument the Congress cannot tell any adherent of a religion what it's precepts are, what books,if any, are or are not valid, etc.

There is only one breech of this that I can think of. The admission of Utah into the Union came with the stipulation that polygamy be outlawed. Polygamy was a tenet of the Mormon faith and was clearly abridged (and continues to be abridged).

So generally speaking there is no law congress can pass that forces a religious person to do something against their faith. Quakers cannot be forced to join the military and kill for example. This concept extends to church organizations. This is clear.


The Civil Rights Act of 1964


As a result of the struggles of African people to secure their citizenship rights the Civil Rights Act of 1964 was passed. The Act contains Title VII section 702 which states:

Exemption:

This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

A religious corporation, association, educational institution, or society....to perform work connected with the carrying on by such corporation, association, education institution, or society of its activities.

Therefore if a church opens up a hospital and considers it a part of it's "ministry" and employs persons, it can not only discriminate against those person on whatever religious grounds it likes but due to the first amendment the Congress cannot pass a law to prevent it from doing so.

I became familiar with this concept in October of 2005 when I discussed a ruling on the Salvation Army

But the judge's 48-page opinion upheld the principle that a religious group can hire and fire employees on the basis of their religious beliefs and practices, even if their salaries come from taxpayer funds. That principle is at the heart of the Bush administration's policy.

"It's huge," H. James Towey, head of the White House Office of Faith-Based and Community Initiatives, said of the decision. "It's certainly a vindication of what President Bush has been saying from Day One -- that religious groups do not have to sell their soul, compromise their hiring practices, in order to partner with government in providing social services."

At the time I was against this ruling because I took the position that the receipt of government funds preempted the right of discrimination found in the Civil Rights Act. I noted this conflict writing:

So we see that there is a conflict of interest here. The government cannot by law give funds directly to organizations that discriminate, yet "faith based" organizations are free to discriminate.

I was wrong then in thinking that the state could preempt the First Amendment right of a religious group to essentially do whatever they please in the name of religion. I have changed my position due to seeing over the seven years that passed, the danger of passing laws that abridge constitutional rights. It is a slippery slope that I gleefully jumped on at the time.

But what is worse for those on the left is that this 2005 decision underscores the correctness of the Republican position on this matter and provides precedence.

The Contraception Issue

With the law on this matter now in hand, we can properly look at the whole contraception issue. The Catholic Church (and possibly other religious organizations) have a religious objection to contraception. It does not matter whether we the general public like it. It does not matter if 90% of American Catholics don't listen to the church about contraception. It is the constitutional right of citizens to use or not use contraception. It is also, as we showed, the constitutional right of the church organization to have it's policy and to not be burdened by the Congress with any law that prohibits the free exercise of that policy. That is the law. There is no way around that without trashing the First Amendment and the 1964 Civil Rights Act.

The Viagra Argument

It does not matter one bit, under the law, whether the Catholic church provides for Viagra. In fact, putting the law aside, it is NOT contradictory for the Catholic church to provide coverage for Viagra (if it does) and not contraception. The Catholic church, as I understand it, is pro reproduction. If Viagra helps a catholic couple to reproduce, then it makes sense that the Catholic church would cover it. We should ask then what would be the equivalent male contraceptive coverage?

If the Catholic church provided coverage for say condoms and vasectomies and whatever other means for preventing a male from inseminating a woman while denying women equal access then we would have an actual case of contradiction, even though legally it wouldn't matter.

But Contraception Can Be Used for Things Other Than Contraception

This is a common argument I am seeing on this matter. I would guess that the prescription of contraceptives for reasons other than contraception is what we would call "off label use". I do not know the Catholic church's policy on the off label use of contraceptives. I would hope that if a woman is prescribed the chemicals used in contraception for treatment of a disease (pregnancy is not a disease), that such use is covered by the Catholic church. But even if it does, that does not mean that those who want contraceptives because they simply do not want to get pregnant have a leg to stand on because the church has a problem with the purposed use of the chemicals (as far as I know) and not the chemicals themselves.

It's About Who Pays

I've seen way too much commentary that this particular issue is about controlling women's vaginas, ovaries and whatever. Nothing could be further from the truth. Lets be clear the Catholic church may want to control a woman's vagina. Republicans may want to control a woman's vagina. However this issue is about the constitutional right of religious organizations to have their religious precepts and principles and their right not to pay for something that is against those precepts and principles.

The Catholic Church does not [now] have the power to deny women the right to contraception. I submit that the Catholic Church in the US has never had such power. It does however have the right to not pay for providing it. The women employed by the Catholic Church have the right to purchase contraception and, as far as I know the Catholic Church cannot prevent them from doing so while they are employed by the church.

The risk to this current prohibition against the church being able to dictate the private lives of it's employees are these precedents of employers being able to hire, discipline and fire people based on their non-work activities. I have also warned people about that issue and the danger such actions have on the rights of citizens. However; too many people are not paying attention to the long term threats posed by things that are not a part of their pet issues.

In the end, providing coverage for contraception equals providing contraception. The Catholic church does not approve of or provide contraception. The Congress cannot pass any law prohibiting the free exercise of religion. By mandating that the Catholic church provide contraception via insurance policies is congress prohibiting the free exercise of the Catholic church. The legal ground is clear. This shouldn't be up for debate because the entire proposal is unconstitutional on its face.

The president and the Congress is duty bound to protect and defend the Constitution. If they want to change it they ought to do so by the means provided by the Constitution.

Ex “Love Connection” Host Chuck Woolery Bashes Civil Rights, Gay Rights

Negroes are just so predictable. You can predict what will come out of their mouths, almost to the word, if you mention the phrase "Civil Rights" "State Rights" or things of that nature. Your Black World writes in that vein:

Ex-”Love Connection” host Chuck Woolery came out from under whatever rock he’s been hiding under for the past 20 years to disavow civil rights and gay rights.

“Majority rules,” he said, referring to the Proposition 8 vote in 2008. “We were born with national rights. We don’t need civil rights. [African-Americans] don’t need civil rights. They don’t need them. They have inalienable rights granted by God in the Constitution. I mean, I’m discriminated against all the time. I don’t care. It doesn’t bother me. [I'm discriminated against] because I’m old.”

I've already covered the legal grounds of Prop. 8 so I won't cover it again. Essentially California law never recognized same sex marriage and operated under the definition of husband, wife and marriage as understood under English Common law so Prop 8 should never have been proposed, much less passed. It was unnecessary.

But the point about "national rights" is right on the money and I don't think Chuck Woolery meant "natural rights" as suggested by the writer. Chuck Woolery covered "natural rights" in his "inalienable rights" part of his commentary (which in reality was not meant to include those persons deemed "savages").

I have long argued that actual citizens do not need a civil rights act because actual citizens have their rights protected under law. case in point, The litigation that happened around Jim Crow was not to secure the rights of white citizens. Why? They were citizens and were accorded all the rights and privileges of citizens. Blacks were being denied their rights as citizens. That is, when the 14th Amendment stated that the States could not pass any laws that abridged the rights of US Citizens, which the 13th Amendment included those of African descent, the States were in clear violation of the Constitution. Each and every law they passed were violation of stated "national rights" of blacks. It was the failure of the courts and other government bodies to enforce the constitutional rights of blacks that was the problem.


So to anyone who can actually read (which yes, I failed at yesterday...ha ha haaaa) it is clear that Chuck Woolery does not mean that African-Americans did not have or should not have civil rights. Rather Chuck Woolery is dead on that if you are a citizen you are ALREADY covered.

But trust the Negroes to get this wrong.

Revisiting that Ebony.com Piece on Bobby and Whitney

So yesterday I scored a big F on my reading of Ebony.com's piece on Bobby and Whitney. It happens. I usually catch such glaring errors before they are posted but not this time so I deleted the piece. Those of you who are subscribed to the Blog had it land in your inbox for all posterity (Ha!). I deleted it because I made claims that were unsupported by the text I quoted. However; this morning after sleeping on it I have come to the conclusion that though the text did not say what I claimed it did, the underlying sentiment that perceived is still worthy of examination.


The original piece and object of my scorn said the following:

Fifteen years ago, none of us would have guessed that in 2012, Bobby would be remarried, the father to a young child and (allegedly) sober for years and that Whitney would die alone in the Beverly Hills Hotel with Xanax and an uneaten turkey sandwich by her side. Many had hoped that the end of what seemed to be the toxic Bobby and Whitney marriage would signal the rebirth of the latter's career and her health. That was not to be the case.

I'm still bothered by this. Starting from the opening "None of us". None of us would have guessed that Bobby would be remarried, a father and allegedly sober? If "none of us" expected Bobby to be all of those positive things then what exactly did "all of us" expect? This is a serious question. I'm even putting aside the gross generalization of "none of us" because I certainly was not "expecting" Bobby Brown to have done anything because frankly I wasn't really paying attention to Bobby. Or Whitney for that matter. I still think that this is a case of low expectations of Bobby as a man, a black man at that. We "expect" black men to crash and burn *cough* DMX *cough*.

Now someone is saying that's a pretty hard charge to make. Sure it is but I think the next few sentences of that piece provides support for this. Supposedly "many", a far cry from the "none" had hoped that the break up with toxic Bobby would have been a rebirth of Whitney's career. Really? I suppose we could ask given the evidence presented in the opening sentence, WHO was toxic for who? If it was Bobby who, after getting the divorce, straightened up and flew right, can't we theorize that it was perhaps Whitney who was toxic for Bobby and that Bobby was the one who needed to get away so he could have a "rebirth"?

Of course we can't make such a suggestion in this environment because it is expected that the man must be the toxic one, the source of all the ills befalling a woman, because men are simply evil creatures and women are passive victims of them. I call this the "non agency argument.

Why couldn't "we" have hoped that when Whitney and Bobby got divorced that it would be an opportunity for rebirth for both of them since by not being together neither one of them could enable the toxic behaviors of the other.

But beating on Bobby is far easier to do than to place the responsibility of Whitney's behavior on Whitney. Such an ideology allows us to "expect" Bobby Brown (or any other man who has been deemed "bad") to not straighten up while hoping for the best for Whitney or any other woman who has been deemed the victim of a man.

So yes, I misread the piece originally and claimed it made statements that it did not, but the underlying ideology is there; and it should bother us.

Israel Blames Iran for Attacks in India and Georgia

Tensions between Israel and Iran rose sharply on Monday when bombers struck at Israeli Embassy personnel in the capitals of India and Georgia. Israel accused the Tehran government of being behind the attacks, which Iran denied.

All we need now is for an Iranian military person to say:

I don’t know who took revenge on the Israeli scientist, but I am definitely not shedding a tear,

Men Lie, Women Lie – Numbers Don’t: The Financial State of African America

I was recently suggesting a viewing of Dr. Claude Anderson's speeches to some people. In line with that is this piece.

It appears that many of us simply just don’t know how BAD things are. We get blinded by a few and I do mean a few success stories and start confusing the exception to the rule as the rule. There is also the purveying confusion of many of us between wealth and income. That someone who makes millions is indeed a millionaire – even though MC Hammer & Mike Tyson remind us otherwise. So let’s take a look at some of the hard numbers when it comes to the state of African America’s financials.

The numbers that follow are truly sobering.

Prop 8 Follow Up

After posting my original piece on the recent Prop 8 decision. It was pointed out that the 1849 California constitution was superseded by the later 1869 constitution. This is absolutely correct and was a serious oversight on my part. However; the main argument that I had still stands. Let me elaborate.

The 1879 California constitution is a greatly expanded document which includes a great deal of detail as to the form of government who is and is not a citizen, legislative limits, and a great deal of copy from the US Constitution. As was correctly pointed out, the word "her" does not exist in the 1879 document as it does in the 1849 document. This is explainable and also does not change the meaning of "wife" as referenced in either document.

The original 1849 document had 2 references as pointed out in my original piece:

ec. 12. No contract of marriage, if otherwise duly made, shall be invalidated for want of conformity to the requirements of any religious sect.

and

Sec. 14. All property, both real and personal, of the wife, owned or claimed by marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as to that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property.

Section 12 remained in the new constitution as Section 7 of Article 20
Section 14 was completely removed.One can guess why but the most likely reason for this is that section 14 was a placeholder for laws that were anticipated to be passed in regards to the rights of women and wives. Between 1849 and 1879 it can be assumed (or researched if you like) that the laws anticipated in 1849 were dealt with and that the framers no longer saw the need for that section. Hence it's removal. To suggest though that the removal of section 17 was because the framers actually meant to remove "her" in reference to "wife" is laughable and untenable.

Why do I say that? There are few reasons:

1) The explicitly sexist (by our standards) definition of citizen found in the 1879. Citizenship was explicitly male. The same constitution blatantly discriminated against "Chinese" by name. To even suggest that the same people who saw citizenship as male and non-Chinese and non-Mongolian thought that wife and husband were anything other than a pairing of female and male is ludicrous.

2) Besides this clear lingual evidence we also have the fact that the 1879 constitution also has the following:

‎"SEC. 11. All laws relative to the present judicial system of the State shall be applicable to the jUdicial system created by this Constitution until changed by legislation."

This means that before the 1879 constitution went into effect there were a set of laws on the books. There was no expectation that the laws that were passed under the old constitution would be null and void. Rather they were to be considered just as valid as anything passed after the ratification of the 1879 constitution unless they were changed via legislative process. This means that if the courts already considered wife as "her" or female gender, it was still the operating assumption. Since it is demonstrable that wife was indeed considered "her" and "she" prior to the 1879 constitution then it also applies post 1879 constitution.

3) The California Civil code, under which marriage falls, contains a number of bits that supports the assumption of male- female marriage:

California Civil Code Section 22.2 "The common law of England, so far as it is not repugnant to
or inconsistent with the Constitution of the United States, or the
Constitution or laws of this State, is the rule of decision in all
the courts of this State."

Furthermore:

California Civil Code Section 5: "The provisions of this Code, so far as they are substantially
the same as existing statutes or the common law, must be construed as
continuations thereof, and not as new enactments."

What this means is that the California civil code, the common law of England is considered to be the rulefor all courts in the state so long as it was consistent with the US Constitution. This means that the California court used English common law understanding of marriage when discussing husband and wife. So of course we must ask what is the Engish common law understanding of matrimony?

The related English word "matrimony" derives from the Old French word matremoine which appears around 1300 C.E. and ultimately derives from Latin mātrimōnium which combines the two concepts mater meaning "mother" and the suffix -monium signifying "action, state, or condition."

Clearly then, under English common law thought of marriage as between a man and woman and therefore wife as "she" and "her" and husband as "he" and "him"

Even Stonwall UK, notes on it's website that English common law did not recognize homosexuality as valid.

1290

First mention in English common law of a punishment for homosexuality

1300

Treatise in England prescribed that sodomites should be burned alive

It is clear then that English common law is and was the basis of California civil law. It is clear that English common law did not 'approve of" or recognize as valid any sort of homosexual activity. It is clear that the framers of the California constitution understood wife and husband as "she" and 'he" respectively and that marriage was between a man and a woman.

Since all of this is clear and understandable by anyone who can comprehend the texts as plainly written. How did the justices come to the conclusion that at no time before November 2008 that were homosexuals denied the privilege of marriage? In addition why was Proposition 8 even written and passed since it was clearly unnecessary due to a plain reading of the relevant law?

I think this ought to go to the Supreme Court and that these issues should be dealt with. The way I see it, if the legislature of California wishes to extend the franchise then it should be free to do so. But it should be clear that it is a change in status rather than some misreading of the relevant law.

The Problem With The Latest Prop 8 Decision

So my Twitter timeline has been cheering the recent Prop 8 decision in California, mostly noting the "unconstitutionality" of the Prop 8 amendment. Whether it is remains to be seen but that is not the purpose of this post. The purpose of this post is to highlight a blatant problem with the decision as rendered by the Appeals Court.

The decision is flawed from the very first paragraph. Really. Let me quote it:

Prior to November 4, 2008, the California Constitution guaranteed the right to
marry to opposite-sex couples and same-sex couples alike. On that day, the People of
California adopted Proposition 8, Which amended the state constitution to eliminate
the right of same-sex couples to marry. We consider Whether that amendment violates
the Fourteenth Amendment to the United States Constitution. We conclude that it
does.

You'll note that the decision first notes the California constitution and then the 14th Amendment of the US. Constitution. Lets deal with the first part

Prior to November 4, 2008, the California Constitution guaranteed the right to
marry to opposite-sex couples and same-sex couples alike.

That is actually a false statement. The California constitution as enacted in 1849 is very clear as to what it considers "marriage". The word "marriage" appears exactly twice in the original California constitution:

Sec. 12. No contract of marriage, if otherwise duly made, shall be invalidated for want of conformity to the requirements of any religious sect.

Sec. 14. All property, both real and personal, of the wife, owned or claimed by marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as to that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property.

As anyone who can read will note, Section 14 of the California constitution clearly refers to a "wife" as "her". It does not refer to a wife as a "person" or "persons" or "him". It refers to wife as "her". That is all. Husband is also referenced relative to wife. Husband is never explicitly linked to gender but is implied as male.

Therefore the California constitution as ratified in 1849 defines marriage as having a wife and husband in which the wife is explicitly a female and the husband implicitly a male. Therefore the original California constitution defines marriage as between a male and female.

Therefore for a justice to claim that prior to November of 2008 that any other marriage arrangement was legal or recognized under the California constitution is factually wrong.

Furthermore, for the justice to state that prop 8 took away a "right" that previously existed is simply untrue. The alleged right of same sex persons to marry was interpreted. The California legislature attempted to have a law enacted to add same sex marriage but that was vetoed by the Governator. Thus it is factually incorrect to state that same sex partners ever had the right to marry under the California constitution or under California civil code. All marriages in California has occurred under a legal cloud and this court of appeals decided to act as if they had not been. That is plain wrong. It is like saying that a person isn't trespassing on private property because he is currently under negotiation with the owner of the property he has trespassed on for permission, after the fact.

The issue with Proposition 8 was that it explicitly stated that a husband is male where before it was implied (which is not the first time such action has been taken in California). How so many people have missed these constitutional facts and how it went unnoticed in the previous arguments is beyond me. Furthermore I think that this very fact is grounds for appeal and the Supreme Court ought to note this error and at the very least remand the case back to the appeals court on this basis.

But I am not a lawyer so take this opinion with the appropriate amount of salt.

However, all is not good for those who are for Proposition 8. Section 12 of the same constitution states that marriage shall not be "invalidated for want of conformity to the requirements of any religious sect." This means that if Prop 8 was argued in anyway to conform to religious principles the state cannot adopt such a measure.

You'll note that the court points out that California statutory law provides same-
sex couples "all the rights of opposite-sex couples, regardless of their marital status. Which is, in my opinion, constitutional. The state may extend all benefits of marriage to anyone it chooses without actually changing it's constitutionally defined state of marriage.

This is a part of a larger problem which is highlighted in the recent controversy over the Catholic hospitals being told they had to cover, and therefore provide, contraception for it's employees. Is marriage a secular concept or a religious one? If it is a religious one then by what basis did it enter the 1849 constitution which clearly has a problem with "religious sects" trying to change marriage? If marriage is a religious term then does the state have the right to change it's "traditional" meaning and therefore trample on the constitutional rights of citizens to their own religious tenets?

For example what happens if a same sex couple with a marriage license enters a Catholic hospital for whatever reason and for whatever reason the "spouse" needs to make a medical decision. Say that hospital, under it's religious affiliation does not recognize homosexuals as being married and refuses to consult with that "spouse"? Who wins? The state is barred from telling the religious institution what it's religious tenets are and how to observe them and the state is under an obligation to protect the equal rights of all those with valid marriage licenses. Who wins?

I take the reader back to my oft repeated solution. The state should get out of the marriage business completely. No one gets a marriage license from the state. People can register a business partnership with a tax ID and "articles of incorporation". That business unit can do what any other business entity does: Buy insurance, declare power of attorney, etc. In this way, every citizen regardless of what arrangement they willfully contract into has all the rights and responsibilities that every other citizen has. In addition, the state does not infringe on the rights of religious organizations to recognize "marriage" as they understand it. They are not serving "married" persons of any kind. They are serving representatives of Jane and Jane inc.

It will be interesting if the US Supreme Court takes this case. I think they should. I also think that the issue of how Utah became a state, by a complete trampling of their religious tenets in the name of religion, can be upheld if the Fed cannot make a moral argument against same sex marriage.

Something a Republican Would Do?

I note the amount of "fun" that people are having over the recent comments by Mitt Romney who isn't all that worried about the very poor...or the very rich. Democrats and liberals have been having a field day over that comment. Meanwhile the NY Times reports on a cold situation in Maine:

This winter has been especially austere. As part of the drive to cut spending, the Obama administration and Congress have trimmed the energy-assistance program that helps the poor — 65,000 households in Maine alone — to pay their heating bills. Eligibility is harder now, and the average amount given here is $483, down from $804 last year, all at a time when the price of oil has risen more than 40 cents in a year, to $3.71 a gallon.

With this in mind shall we ask if this administration is "worried about the very poor"? Apparently if you're poor and in need of heating assistance so you don't freeze to death, you're out of luck as far as the Feds are concerned. The administration does know that about 1/2 the country is in the "cold zone" right?

Meanwhile we get to see "Joe" from Citgo with his annual reminder of how much heating oil the people of Venezuela are sending to poor Americans, while other oil companies are of the opinion that they can freeze to death.

I guess the real question is does anyone on the federal level really care about the poor?