Tiny Imperial County could play a decisive role in the battle over same-sex marriage in California.  In the 2008 election, citizens of the county, which is overwhelmingly Hispanic, voted by 62% for Barack Obama and by nearly 70% in support of Proposition 8.  If Imperial County is granted standing to appeal Judge Vaughn Walker’s decision overturning Prop. 8, then it’s virtually guaranteed that the case will go to the U.S. Supreme Court.

Last Sunday’s San Francisco Chronicle featured a front-page article that completely distorted the positions of Imperial County civic and religious officials regarding same sex marriage and the county’s attempt to defend Proposition 8 in court.  The article, as described by the Imperial Valley Press, painted the county as a “queer-hating, Bible-thumping bastion of backwater bigotry.”  I was disturbed by several aspects of the Chronicle reporting.  According to the opening paragraph, Imperial County was “taking a lonely stand” — despite the fact that the initiative received support from 7 million voters.  The county is described condescendingly as “an impoverished, sun-baked desert backwater pasted into the southeast corner of California”.  One particular quote stood out like a sore thumb, in which the reporter summarized the position of county supervisors and religious leaders:

The idea that sinners are not allowed to get married didn’t make sense to me, since everyone is a sinner according to the Christian Bible.  I contacted four county civic and religious leaders to see if they agreed with the statement.  All of them expressed disappointment in the article, and none recalls having made such a statement, and none of them agrees with it.  

County Supervisor Wally Leimgruber spoke with the Chronicle reporter and photographer about the case for at least an hour.  Leimgruber was interested in discussing the legal aspects of the case.  However, when prompted by the photographer, he did respond that he agreed with the statement that the homosexual lifestyle is a sinful lifestyle.  Fellow Supervisor Jack Terrazas did not recall himself or any other supervisor discussing marriage with respect to sinners.  Terrazas wrote, “my reason for the appeal and the request to enter into the case was to follow the wish of the voters in Imperial County, who by an almost 70% voted for Prop. 8.” 

Terrazas suggested that the reporter may have generalized the views of religious leaders and county supervisors as one view.  So I checked with two members of the pastoral staff at Christ Community Church in El Centro.  Associate Pastor Chris Nunn was portrayed in the article as a judgmental Bible-thumping bigot:

He opened up his Bible and began jabbing his finger at passages such as Corinthians 6:9-11, which lumps “homosexuals” and “sodomites” in with idolaters and thieves as being among those “who will not inherit the kingdom of God.

Nunn wrote to me that he was saddened by the distortion of his position in the article.  “I can assure you that we did not say, nor do we believe that there is no place in marriage for sinners.  I am a sinner.  I am the first to admit it…. If I believed that sinners shouldn’t marry then I wouldn’t have been able to get married myself.”

Associate Pastor Steve Messick agreed that the article was “beyond recognition when compared with the topics and demeanor actually discussed during the interview with the Chronicle.”   During our telephone conversation, Messick referred me to several passages from the Bible that discussed love and marriage.   He also quoted Romans 3:23: “for all have sinned and fall short of the glory of God.”  Obviously if sinners were excluded from marriage, then there would be no marriage in the first place.  Messick was charitable to the Chronicle, saying that the distorted view was either a misunderstanding or a misquote.

A retired fish and game warden, Messick told the Chronicle about a memorable conversation he had during the battle over Proposition 8.  On the street a lesbian woman yelled at him, “What have you people got against love?”  He responded by going over and talking with her.  Over and over the next half-hour, they discussed love from a personal and Biblical perspective.  At the end of the conversation, Messick reports that the woman was moved to tears.  Messick also discussed some of the ways that his church is impacting the local community.  Located in a low income, high crime area, Christ Community Church is committed, in his words, “to seeing God change the area.”  Its New Creations street ministry has helped hundreds of people affected by homelessness, substance abuse, and other afflictions.  Yet none of this was reported – apparently it didn’t support the Chronicle’s desire to protray arrogant religious leaders.

I received no response to an email I sent to reporter Kevin Fagan.

However there have been a number of responses to the article itself.   A letter to the editor criticized the “organized homophobia” of the “religious right”, claiming (based on the article) that church leaders want to deny marriage to gays and lesbians “because they are de facto sinners.”  The  Imperial Valley Press editorial called for Supervisor Liemgruber to be removed from office.  And Leimbreiber forwarded correspondence that he received condemning him as a “bigot” whose “homophobic opinion” is “on par with the [mid-20th century] racism in the deep south”.

Came home last night to a flier stuffed into my mailbox regarding a supposed overbuild of cell phone towers in the neighborhood and the need for the community to stand together to oppose new cell sites.  Never mind that there are plenty of dead zones, including my house.  It appears that T-Mobile wants to put a cellphone tower at a local YMCA and one resident has decided to organize an opposition based on a belief of growing “radiation” danger.

I’m an engineer with decades of experience in wired and wireless communication systems, and I know that this is mostly fear-mongering based on junk science and anecdotes about individual cancer cases.   Not to mention the crazy talk.  Worse, to the extent that there IS a danger from cell radiation, it is clearly from too few cell towers, not too many.

The dangerous cell transmitter is the one next to your brain, not the one hundreds or thousands of yards away.   According to the inverse square law, the difference in power levels at one inch versus 100 feet is a ratio of 1.44 million to one.  And most people are considerably further than 100 feet, considering the property lines and the tower height.  At 1000 feet the ratio is 144 million to one.  Even if the cell tower is transmitting at 1000 times the power (it usually isn’t), the ratios are still tens of thousands to one.

So, why do people talk about cancer and cell phones?  Because there is some evidence that holding a cell phone next to your brain can be harmful if the cell phone is transmitting at max power for a long time.  Problem is that this only happens when you are far from a cell tower (for the same reason you have to YELL to be heard far away).  And the most likely situation where that occurs a lot is if you have crappy cell reception at home. Like me.

Which is exactly the situation that these NIMBYs are working to maintain.

Update:  It turns out that the desired site was not at the local YMCA, but on a residential street.  Further, the tower was not the “small installation” that I was led to believe but a fairly huge one that would have actually overhung a residence.  Apparently the local residents were using every argument they could to derail this thing.  Doesn’t affect what I think about the cancer-ray stuff, but T-Mobile should be ashamed of themselves poisoning the waters like this.

In the end T-Mobile bagged it, and it will be more difficult for the next company that tries to put something up in a more reasonable manner.

The first lawsuit against Proposition 14 was filed yesterday.

The claims are:

(1) Prop 14 violates Article 2, Section 2.5 of the California Constitution by denying people the right to have votes cast for eligible write-in candidates be counted.

(2) Prop 14 violates Article 1, Section 2(a) of the California Constitution (the free speech clause) by denying people the right to have votes cast for write-in candidates be counted.

(3) Prop 14 violates the 1st amendment and 42 USC 1983 by denying people the right to have votes cast for write-in candidates be counted.

(4) Prop 14 violates the Elections Clause by denying people the right to have votes cast for write-in candidates be counted.

(5) Prop 14 violates due federal process by denying people the right to have votes cast for write-in candidates be counted.

(6) Prop 14 violates state due process by denying people the right to have votes cast for write-in candidates be counted.

(7) Prop 14 violates state equal protection by not allowing candidates to state a preference for a minor party which isn’t ballot qualified.

(8) Prop 14 violates the elections clause and 42 USC 1983 by not allowing candidates to state a preference for a minor party which isn’t ballot qualified.

———–

(1) is just wrong , as the clause only requires that votes cast in accordance with state law be counted (”A voter who casts a vote in an election in accordance with the laws of this State shall have that vote counted”).

(2) and (3) are bizarre, and the complaint doesn’t explain the theory under which this denies free speech.

(4) and (8) are inconsistent with my understanding of the elections clause (which would in any event only apply to federal offices) and would represent a gigantic change in federal elections law which would force many states to change their laws (effectively *requiring* write-ins and declaration of preference for unrecognized parties, everywhere, even though they often aren’t allowed now in many places).

(5), (6), and (7) are novel but I suspect unlikely to go very far.

A few days ago, DRJ posted an article by Angelo Codevilla which argued – I can’t resist – that there were two Americas: one which perceived itself a “ruling class”, wed to and empowered by an ever-expanding federal government, and hell-bent on dictating to average Joes everywhere what they can or cannot do; and a “Country Class”, who was sick of the ruling class and its superiority complex and just wanted to be left to live their lives free of unnecessary government intervention.

Over the past few days, I’ve been arguing – in much the same spirit as Codevilla, I believe – that obscenely wealthy individuals don’t necessarily (and perhaps necessarily don’t) make good Congressional representatives, on the grounds that they usually can’t “think, feel, reason, and act” as their constituents do – which is their job, if you buy the logic of John Adams, who argued as much in his “Letter to John Penn”.

Such arguments – that the wealthy should not be representatives for the not-wealthy – are usually dismissed as “class warfare”. But the notion is not unprecedented – indeed, we find it in the pages of one of our nation’s most important collections of documents, The Federalist.

Federalist 39: “It is essential to [a republic] that it derived from the great body of society, not from an inconsiderable proportion or favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic.”

It’s a prescient warning, I think – the whole “aspire to the rank of republicans” bit is interesting, in light of how many captains of industry manage to worm their way into the Capitol.

This is my point: while there obviously cannot (and should not) be any sort of exclusionary cap on personal wealth for aspiring members of Congress, we would do well to remember 1) that we have elected a Congress much wealthier than their constituents, 2) that we have allowed those wealthy individuals to preside over matters which affect their own wealth in a serious way, and 3) that “no man is allowed to be a judge in his own case, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” (Federalist 10)

In the interest of staving off the predictable, eight (8) of the ten wealthiest members of Congress are Democrats - so this has nothing to do with party. It’s about resisting a ruling class, which dances across party lines with a whimsical step. Simply put: we need to stop electing people to deal with our issues who don’t understand our issues in the first place.

And much as I disagree with him, “kos” has it.  For the last year and a half, the Daily Kos has been running polls of local contests.  Many times their results have seemed skewed to the left, but I’d always assumed it was the question wording or likely-voter assumptions.

Not so.  It turns out that the polling firm (R2000) was faking their data and defrauding the Daily Kos, telling them what they wanted to hear.  Some lefty statisticians finally got suspicious, took a good look at the numbers and pretty much proved that the data was cooked.   They brought the info to Markos, and he outed them big time.  Takes real integrity to admit you’ve been had.  Bravo.

It appears that the Democratic candidate for SD-16 may not actually live in the district.

To be fair, the county elections office claims he does, despite the fact that the State Senate’s tool and the county’s own GIS mapping tool says he doesn’t.

It’s not clear to me who should prevail on the inevitable lawsuit – clearly he’s required to live in the district, but ultimately if the elections office of his county tells him he’s in a given district he should be entitled to rely on that authority, but if there’s a valid state authority it probably isn’t too much to expect a campaign for the state legislature to check it.

But it’s funny (and embarassing) and quite an indictment of the 2000 redistricting that it’s even an issue at all.

The State of Washington has a series of process rules which, when taken together, courts have interpreted to require that the identity of citizens who sign referendum petitions (that is, petitions that have the legal effect of causing a law already passed by the legislature to be suspended and sent to the voters for approval) be published as public information. The proponents of a referendum to overturn the state’s domestic partnership law objected to this, claiming that such a requirement interfered with their right to freedom of speech (by publishing their names, it subjected them to the risk of retaliatory harassment, thereby placing a burden on the exercise of their right to free speech).

They lost at the Supreme Court this morning, but they lost in a way which means they may yet win.

——————–

First amendment challenges, like many constitutional challenges, can be brought using two different kinds of argument: (1) a facial challenge that alleges that the law is always unconstitutional under any circumstances, or that the circumstances under which it is constitutional are so small in comparison with the circumstances in which they aren’t that they it’s equivalent to never, or (2) a challenge which says that, in the particular situation presented by the facts of the case, the way the law is being applied is unconstitutional. Generally speaking, as-applied challenges are more likely to succeed, but sometimes facial challenges do as well (the communications decency act was struck down on a facial challenge, for example).

The opponents of SR71 (that is, the people who wanted to hold a referendum and who then cmapaigned against it) have brought both kinds of challenge. Their facial challenge is what made it to the Supreme Court today; their as-applied challenge remains at the district court, and the fact that they lost the facial challenge does not mean that they will lose their as-applied challenge.

———————

Washington law does not explicitly require referendum petition signatures per se to be public, but it requires that all “public records” be available for inspection and copying, and defines that to include “any writing containing information relating to the conduct of government or he performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency”; that clearly covers referendum signatures (and appears to be intended to be so broad as to cover virtually everything imagineable). The Supreme Court states as a basic premise that such a law is subject to first amendment review when it is applied to petition signatures, because (a) signing the petition is inherently an expressive act (and therefore ’speech’), but they concede that the act of signing a referendum petition is also an act that has a role in the electoral process which can therefore be regulated as part of the electoral process. The issue therefore contains significant interests on both sides, and the court responsds by balancing those interests against each other, looking at: how serious is the burden on the speech interest, how important is the government interest at issue, and how closely tied is the regulation to the government interest?

The standard used in previous cases to perform such balancing has been “a substantial relation between the disclosure reqauirement and a sufficiently important governmental interest.” The burden lies with the State of Washington to demonstrate that, so it put forward effectively three interests: (a) combatting fraud in the electoral process (eg, invalid signatures); (b) fostering government transparency; (c) providing information to the electorate about who supports the petition. The court looked only at the first interest, decided that Washington’s interest in combatting fraud in the electoral process was important enough (and this disclosure requirement was sufficiently related) that the standard had been met, and then ignored the other two rationales (because good courts don’t rule on questions they don’t have to).

The opponents of SR71 tried to counter this by arguing that no, really, the burden on the exercise of speech rights is really, really high, and the normal standard for disclosure shouldn’t apply. After all, several groups plan to post the list of signatures in searchable form on the internet, where they could be combined with publically available phone numbers and maps, and this information will be used to harass and intimidate signers. Which is, in theory, a legitimate argument … for an as-applied challenge. There’s no evidence that this is a problem for people seeking a referendum on less emotionally charged issues.

———————

Justice Breyer concurred for the purpose of pointing out that the court, which didn’t say it was balancing interests but obviously was, was balancing interests.

———————

Justice Alito concurred for the purpose of observing that, while he agrees with the argument that in the general case disclosure of referendum petition signatures doesn’t violate the first amendment, he thinks an as-applied challenge will easily succeed whenever there is a “reasonable probability” of harassment, and that he really thinks the SR71 opponents should win their as-applied challenge. (He went on at length about that even though it wasn’t necessary to answer that question and judicial restraint generally calls for not answering unnecessary questions).

———————

Justice Sotomayor concurred for the purpose of pointing out that initiatives and referenda are special creatures whose rules are basically up to the people of each State, acting as sovereigns, and that the court should grant states wide leeway to develop their own rules governing the application of direct democracy. (An unusually strong states-rights position for a liberal justice).

———————

Justice Stevens concurred for the purpose of saying that no, really, signing referendum petitions aren’t an exercise of freedom of speech, and then proceeded to explain why he thinks the as-applied challenge should fail. (It’s unclear whether his off-topic rant or Justice Alito’s off-topic rant came first).

———————

Justice Scalia concurred for the purpuse of saying that he doubts that signing a referendum petition is an exercise of free speech, to criticize a 1995 decision invalidating a ban on anonymous campaign literature, and to wholeheartedly support the argument that, in signing referendum petitions, citizens are acting as legislators, whose behavior has traditionally been *required* to be public, even in colonial times – the federal constitution and state constitutions all require actions of the legislature to be kept in public journals, and revolutionary-era petitions for redress of grievances (which a referendum petition clearly is) were always read publically. He then proceeded to argue that in colonial times, *voting* was public; and if voting on a referendum was allowed to be public, it’s nonsense to say that a rule making petition signatures public would have been prohibited.

———————-

Justice Thomas dissented. He believes the problem is not that requiring disclosure interferes with the freedom of citizens to speak, but with their freedom to associate with one another; accordingly, because there’s a particularly high value to privacy in political associations, the standard the state should have used is higher (it must demonstrate a “subordinating interest of the State that is compelling, and … a substantial relation between the information sought and an overriding and compelling state interest”). The state can’t meet that burden.

———————-

I agree with Justice Thoms that the state couldn’t meet hte burden he wants the state to meet, but I’m unconvinced that it’s the right one – he doesn’t really explain *how* signing a petition to revoke a law is an act of *association* rather than an act of speech or an act of legislation, and without a compelling argument there, his reasoning just collapses. My position on this is probably closest to Justice Scalia: signing a referendum petition, or an initiative petition, is an inherently legislative act; it has a binding legal effect and should not be carried out in secret.

This decision appears to be unimportant, in that the opponents of SR71 still have an active case and are still likely to prevail, but that’s misleading: a decision on the other side would have had enormous implications – because if a state can’t require disclosure of signatures on a referendum, it probably also can’t require disclosure of authorship of campaign ads (the burden on speech would be the same, but the state interest would be lower). So: there was a possibility of a major upheaval in campaign law coming out of this, and that possibility has been deflected, rather decisively.

Human Events reports that the widespread call for a boycott of the state of Arizona appears to be having the opposite effect, at least so far, as supporters of the law are flocking to visit and do business with the state.

“There are no negative effects I can quantify,” said Tony Venuti, publisher of AZ Tourist News and webmaster of a pro-Arizona business site. “There have been cancelations caused by the boycotts, but for every cancellation, four or five (reservations) are coming in.”

…

More tourism businesses are reporting to Venuti that they are seeing increased business that they attribute to the reaction against the boycott calls. Venuti says the news coverage of the immigration enforcement law is skewed to represent the 30% nay-saying minority opposed to the law, and largely ignoring the viewpoint of an overwhelming number of supporters.

Arizona Fights Back, a web site set up by Gilbert, Ariz. resident Brett Scott, promotes a reverse boycott of municipalities and groups that have attacked Arizona SB 1070.  Another site, Buycott Arizona, also provides a reverse boycott list, as well as a list of Arizona-based companies to support.

On a personal note, at the time of the initial boycott calls by California cities that should mind their own business, I decided to extend my upcoming road trip to Las Vegas with two additional nights at a Pointe Hilton resort in Phoenix.  The Grand Canyon State offers many exciting and memorable experiences for travelers, some of which I will highlight in an upcoming post.

The Muslim Student Union at UC Irvine has conducted many virulently anti-Israel and anti-Semitic events over the past several years.  Now the MSU faces a one year suspension (that would be effective September 1st) for deliberately orchestrating the disruption of a speech by Israeli ambassador Michael Oren back in February.  One of the ironies of anti-Semites is the claim that a supposed Israeli Lobby seeks to shut down any criticism of Israel; in fact the disruption of Oren’s speech is just one of hundreds of examples of anti-Zionists seeking to silence Israelis and pro-Zionists who dare to speak out in support of the Jewish state.

The irony was apparently lost on MSU lawyer and anti-Israel activist Reem Salahi.  She declared that the suspension “would create a really dangerous precedent for shutting down dissent.”

As I write this, Ronnie Lee Gardner is just hours away from being executed for killing attorney Michael Burdell during an escape attempt from custody in 1985.  (Burdell was not involved in Gardner’s case.)  Gardner was at the courthouse for a pre-trial hearing in the 1984 murder of Salt Lake City bartender Melvyn Otterstrom, who left behind a wife and 3 year-old son.

Gardner’s attorney’s are filing several desperate appeals attempting to delay his date with the firing squad.  One of the appeals is that he has been on death row for too long.  “He asserts that executing him now, after nearly 25 years on death row in Utah, so lacks retributive or deterrent value that it violates the Eighth Amendment,” his attorney explained.

There’s been a lot of talk in the political press and blogosphere about the weird result in South Carolina: an unknown candidate who didn’t bother campaigning won a primary election, and there are allegations that somehow the opposing party was responsible.

Apparently something similar happened in California: an unknown candidate for Insurance Commissioner, whose campaign expenses consisted of paying the filing fee, paying for his statement in the voter guide, and flying to an endorsement meeting, appears to have won the Republican party primary.

Perhaps, in a year with a strong anti-incumbent backlash, this shouldn’t be surprising. But the fact that it is happening makes the similar occurrence in South Carolina seem less bizarre.

According to the Weekly Standard, the Obama administration will support the call for an independent UN-sponsored commission to investigate Israel’s role in the Gaza flotilla incident.  As the Standard notes, “the investigation will be one-sided, focusing entirely on Israeli behavior and not on Turkey or on Hamas.”

No word yet on whether the UN plans to investigate the Taliban for hanging a 7 year-old boy in Afghanistan.