Rainbow Legal Talk

Who Cares How The Hate Crimes Bill Passes?

Hate Crimes legislation is ready to be passed in the Senate, but some LGBT activists and bloggers are up in arms because it is only likely to pass using a procedural maneuver. Instead of being passed as a stand-alone bill, it is likely to be tacked on to another "slam-dunk" piece of legislation as an amendment. What the bloggers and activists are upset about is that the legislation will not have to "stand on its own" when there is a huge majority of the American public behind it.

1) The fed Hate Crimes bill cannot be passed as a stand alone bill in the Senate -- as in the votes are not there. On f*cking hate crimes, people. With overwhelming public support for passage.

That is mind-blowing and says a lot about the lack of leadership -- why isn't Harry Reid or anyone else asking the public to call their Senators to specifically ask where they stand on the bill, and to put pressure on them? This is outrageous. Republicans know how to muscle up their bible beaters to call, fax and write the Hill to scare the bejesus out of lawmakers to get things done. Why are we not being asked to put some public pressure on? As I said in the post, slapping it onto another bill is not just about getting it passed, but it's about avoiding the exposure of the powerlessness of Reid. This is supposed to be the easy bill, remember. (Pam's House Blend).

Isn't the point to get the Bill passed? What happens if the bill ends up in the abyss of committee delays, debates, and stalls until it dies an unpleasant death of other priorities? How much of a difference is it going to make to have a debate only televised by CSPAN where the only audience will be the people who have made up their mind on the issue? Who cares how it passes as long as it passes? And the fact that the public is largely behind it doesn't make any difference since the public is not voting on the legislation. There are 59 Democrats and 40 Republicans voting on it in the Senate, and if the best way to get the job done is through an amendment, then go for it. Elevating the debate to be higher than the end result of hate crimes protection for members of the LGBT community puts form well above substance.

The only press that will really matter is when the first person is arrested, tried and convicted of a hate crime, but in order for that to happen the bill has to be passed. So what is more important--the law being enacted, or a show that will only deny protection?

 

Anti-Marriage Equality Measure Pushed in Maine

Well, that didn't take long. The Maine legislature and the governor passed marriage equality laws in Maine set to take effect 90 days after the legislature adjourns in mid-June. And now, less than one month after the law passed and more than 100 days until the law takes hold, petitions are already being circulated for a "People's Veto" of the new law.

"Maine citizens have an amount of time, from when a bill is signed by the governor until it is effective, to collect and have verified a number of signatures of registered Maine voters equivalent to 10 percent of the total votes for governor in the last gubernatorial election in order to force a statewide vote on the measure.

The current threshold to force a so-called "people's veto" is 55,087 certified signatures. Petitioners have until 90 days after the Legislature adjourns to collect 55,087 signatures.

The secretary of state then has 30 days to certify the signatures.

If the secretary of state rules that sufficient signatures have been affixed on the instrument of petition, the stay continues until after the voters decide on the question at a statewide election." (Kennebec Journal Morning Sentinel)

And once again equal rights are put to the capricious whims of the majority. The legislature in Maine had the boldness to stand up for what is right. Let's hope that the people have the moral fortitude to stand with them.

Prop 8 Court Decision Means It's Time to Get to Work

And the world came crashing down. Or at least that’s how it seems if you read the blogs and watch the news. The California Supreme Court ruled that Prop 8 stands, meaning the voter referendum outlawing the term “marriage” between people of the same gender is no longer legal in that state. While LGBT individuals, couples, and advocacy groups are up in arms, the damage was done a long time ago. This is the equivalent of suddenly losing a loved one but 6 months later breaking down crying when the tombstone is finally put in place. Prop 8 brought gay marriage in California crashing down last November, not yesterday.

What most people do not understand, because the media is not highlighting the legal principles of the case, is that this was a loser to begin with. The California Supreme Court’s decision was not about the substance of gay marriage. It was not about equal protection of the laws. It was not about discrimination. It was about whether or not the technical process of the referendum was followed for the particular type of change Prop 8 made. Yes, the same court ruled that the California Constitution provided equal marriage protection. But, yes, the California Supreme Court was not about the rule that a referendum to change the constitution that passed was invalid on a technicality.

So where does it go from here? Prop 8 needs to be overturned. But like all things that are worth having in a democracy, we need to convince people to vote to overturn Prop 8 in the next statewide election. Yes, it is more difficult and time-consuming than a few protests outside a court. But that was the way the California constitution constitution was designed. To make a change, convince people to vote for the change. The fact that we are right goes a long way to accomplishing that.

Following the California Supreme Court's decision today to uphold Prop. 8, which stripped same-sex couples of their right to marry, Equality California (EQCA) vowed to win marriage back at the ballot box. EQCA released the following statement as well as a memo to members and allies detailing its recommendations to return to the ballot in 2010.

Statement from Marc Solomon, EQCA's Marriage Director:

"Today's ruling is a miscarriage of justice. No minority group should have to defend its right to equality at the ballot.

"Despite today's setback, Equality California is committed to restoring the freedom to marry.  We believe, as do the majority of our members, that 2010 is the best time to return to the ballot to repeal Prop. 8. We must take full advantage of the momentum and commitment people now have to do the work required on the ground. However, we will make the final decision on when to return in collaboration with our coalition partners and allies throughout the state.

"We have already launched a mobilization campaign to reach more than 300,000 Californians in the next 100 days in places where we need the most movement-Los Angeles County, San Diego, Orange County, the Inland Empire, the Central Valley and Sacramento, and over the coming weeks we will expand our efforts with our partners and tens of thousands of volunteers.

"We do not underestimate the challenge of implementing a strong ballot campaign. Introducing ballot language is simple; winning an affirmative referendum on the freedom to marry will be difficult and expensive. But we have confidence that we can and will prevail.” (Pam’s House Blend.)

 

Honoring All Who Serve

Memorial Day is a time for all Americans to reflect on the sacrifices made by our military, and to honor those who serve. Unfortunately, not all who step forward are treated the same. LGBT individuals join the military and make the same sacrifices as everyone else, but they are bound by law to remain in the closet while their hetero counterparts have no such restrictions. They are allowed to discuss their spouses/partners, bring them to social functions with co-workers, and have their families receive military benefits. When a person steps forward to dedicate their lives to protecting our country, their sexual orientation should not be a factor, and they should be entitled to the same benefits and recognition as their hetero counterparts.

Unfortunately, the Obama Administration is taking its time changing the law. While the Administration purports valid military and political reasons for taking its time changing the law, it is not right and delays too often turn into outright refusals to act.

"President Barack Obama's top military adviser said Sunday the Pentagon has enough challenges — including two wars — without rushing to overturn a decade-old policy that bans gays and lesbians from serving openly in the military and incites political and social factions on both sides.

Adm. Michael Mullen, chairman of the Joint Chiefs of Staff, said he is working on an assessment of what — if any — impact overturning "don't ask, don't tell" policies would mean for the military and its culture. In the meantime, the Pentagon plans to follow the existing rules, which say gays and lesbians can serve in the military if they do not disclose their sexuality or engage in homosexual behavior.

"The president has made his strategic intent very clear, that it's his intent at some point in time to ask Congress to change this law," Mullen said. "I think it's important to also know that this is the law, this isn't a policy. And for the rules to change, a law has to be changed." (AP News)

What we need to acknowledge is that the military does not change easily, but when forced to change it has always risen to the ocassion without risking national security. The integration of blacks and women had the same objections raised, and the only problems that popped up came from bigots. It seems time and again that the people who raise potential problems of integration and open service are the source of the problems. By keeping the law in place we are honoring bigots and bigotry. By getting rid of "don't ask, don't tell," we are honoring the military personnel who stand for the tolerance our country is supposed to be founded on.

Attorneys Fall Short in Helping Domestic Partners

I had the pleasure of talking to a couple last week about their estate planning documents, and they thought they were pretty well covered. What made them think that? Their attorney had drawn up a set of Simple Wills for them and told them that was all they needed.

Here is what you get with a Simple Will:

* Your assets go through the probate court process, generally costing between 4 and 10% in administrative costs and attorney fees.

* Your partner has to wait approximately 6 months to a year and a half to get everything through the system.

* The court process exposes all of the partner's financial information to the public, and it leaves the written plans more open to being contested.

While that bad advice is bad enough, and it is pervasive in the legal community (usually because the attorneys get most of the 4-10%), this couple had most of their property as joint tenancy with a right of survivorship. Several millions of dollars. Usually that is a problem when partners get together and start combining their assets, but in this case they built their assets together over a few decades, so there were no gift tax problems.

No, the problem here was much bigger. The estate tax rules give each person in this year $3.5 million in exemptions. Assume they had jointly about $7 million. But the estate tax rules revert to $1 million starting in 2011, and their attorney told them they had nothing to worry about for estate taxes. Even if you put aside that the IRS generally starts with the presumption that the first deceased owner owns the whole of the joint assets, $3.5 million would equal $1,140,000 in estate taxes when the first partner passes on, and with the survivor getting the remainder and then passing on, there would be $2,249,200 in estate taxes when the second partner dies. That means a total of $3,389,200 in estate taxes, or nearly half of what they owned. No estate taxes? Talk about gross incompetence in advising domestic partners. Unfortunately, advice this deficient is common, and it shouldn't be.

In the next edition, I'll talk about the solution in making sure that attorneys and advisors have the right information for their clients.