DOMA, Prop 8 and Appeals: Outcomes and Next Steps

Yesterday's holding by a Federal District Court Judge that DOMA is Unconstitutional is a big step...but not the end. This was a decision issued by a federal judge on a federal law, but only in a "local" (Massachusetts) case. The question remains of how we turn a Federal District Court holding into a national holding. It would be very unusual for the entire federal government to just roll over and say, "OK, we gotta change now, Congress was wrong on this" as a result of a single District Court holding.

In the best of all worlds, the decision would need to be appealed to (and affirmed by) the Appellate level (and maybe moved on certiorari to the Supreme Court) strictly on the 10th Amendement aspect of the holding, to create a national holding. The 10th Amendment specifically grants to the States the right to legislate in those areas not given Federal jurisdiction, and this was the legal basis for yesterday's decision: States, not the Federal Government, are the entities with authority to define Marriage. DOMA attempted to allow the Federal Government to ignore State Marriage laws that recognize same-sex unions.

Meanwhile, on the West Coast, another decision looms. California's Proposition 8 overturned same-sex marriage in that state, and the Proposition has been challenged on other federal grounds: this one, however, is not based on "State's Rights," but on the Equal Protection Clause of the 14th Amendment to the US Constitution. The specific holding of that trial - which could be released any day - may very well provide a second Federal ruling requiring clarification or appeal...which could accelerate the process.

I expect that, if appealed, the two cases would be joined at the Supreme Court.

Back to yesterday's DOMA ruling: This puts Obama in a very difficult position. On one hand, he could decide to support the Massachusetts District Court decision nationwide; this would be highly unusual, maybe even unprecedented. District Court level Judges issue rulings all the time, often contradictory with each other and almost never with national application overnight.

On the other hand, Obama's Justice Department could Appeal the Massachusetts ruling, thus angering the less-than-critically-thinking gay blogosphere that understands that it *won* at the District Court level.

Whatever Obama decides to do, he must articulate his reasoning WELL both publicly and "within" party and GLBT leadership so its clear what is going on.

Upholding Prop 8 in California: a proper decision

The California Court upheld Prop 8 today. While I don't have to like the result, I have to say that from a Legal perspective, it was proper.

This same Court once ruled that gays and lesbians could not be discriminated against in the criteria for issuing marriage licenses. They held that the California State Constitution prohibited unequal protection.

When the citizens dont like laws resulting from Constitutional interpretation, their recourse is to amend the Constitution. That is what California citizens did when they passed Proposition 8.

Opponents of Prop 8 took that vote to court. One must be clear here that the issue was NOT should gays have the right to marry: the issue was, narrowly defined, whether or not the process used in amending the California Constitution was appropriate. The Court that initally granted Marriage Equality was forced - by a 6-1 vote - to also rule that the Citizens of California were within their legal right to overturn that decision, and that they did so according to California Law.

Of course, this battle is not over..

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San Francisco Wrong to Tax Roman Catholic Church

In San Francisco, Tax Assessor Phil Ting has decided that the Roman Catholic Church owes over 15 Million dollars in taxes because the Archdiocese was restructured and consolidated a number of properties seven months ago. Each of the properties was technically incorporated seperately, as would be expected when a Church operates schools, family centers, day cares, hospitals, monestaries, church buildings, etc. Since, claims Ting, this consolidation involved the transfer of "separate legal entities," a real estate transfer tax applies.
Nonsense.

There are those, of course, who are cheering: anyone who has an axe to grind with the Roman Catholic Church is applauding the fact that San Francisco is going to 'take the churches money:' many gay activists mad at the Church's support of Proposition 8, those who have left the RC Church because the Church did not bend their theology to their own ideas, those who dislike "organized" religion, those with an imaginary view of history and RC atrocities somewhere in the past, those burned by the clergy sex abuse scandals. But disliking an institution is not an appopriate basis for deciding to use the coercive force of government to confiscate its assets via taxation.

Ironically, this flies in the face of a recent court decison in the same state.

On January 5, the California Supreme Court ruled that breakaway Episcopal parishes do not have the right to keep church property if they secede from the national denomination; they held, quite strongly, that all the various properties of the Episcopal Church belong to the national Episcopal Church, not the local congregation.

This was an appropriate ruling, as the Episcopal Church - like the Methodist, Orthodox, and Roman Catholic Churches - is, in fact, "Episcopal" in government, meaning that the local congregation is really an administrative unit of the National Church. If a local congregation secedes, they can not take the church building or property with them. (This is the opposite of "baptist" and "Bible" Churches, which hold that the ultimate authority resides in local congregations.)

So here is the incredible - and disingenuous - contradiction:

On the one hand, the California Court has stated that all Church Property belongs to the Larger Church when that Church has an episcopal governing structure.

On the other hand, the City of San Francisco (or at least Assessor Ting) has stated that all of the units under the administration of an episcopal-governed Church are independent, so any 'consolidation' is a transfer of real estate from one entity to another, and, therefore, taxable.

These positions are mutually exclusive. It's one or the other, and the California Supreme Court has spoken.

As usual, Liberals are being inconsistent: they are cheering the decision in the Episcopal Church case, because it helps liberals within the Episcopal Church structure. But they are also cheering the San Francisco action, because it gets the 'big bad ctaholic church' (Isn't that the church that operates more hospitals, orphanages, and aid services than any other in the world? Oh, yeah...)

In other words, the sides being chosen in the battles are based on who people want to win, rather than what is good law.

The Episcopal Church case is correct, and good solid law with much precedent behind it. The San Francisco action is a raw abuse of government power.

Perhaps thats why non-profit organizations - such as churches - are not normally taxed in the first place: the power to tax is the power to destroy, and once government has 'authority,' it uses it UNEQUALLY to punish those it dislikes and favor those who are its friends.

There are those who support taxing the Roman Catholic Church because of its supposed 'political involvement' in conservative ballot issues. I wonder if these same persons would support revoking non-profit tax status for all of the churches that ran the civil rights marches in the 1960s....or revoking the tax status of HIV Service agencies who reguarly lobby for an increase in federal funding?

Best to keep the arms of government taxation far away, and not let them near non-profits of *any* kind.