There’s one consensus that both sides of Arizona’s Ballot Proposition 107 can agree on: the effects of passing this ballot proposition will be widespread. However, what the “Yes on 107” folks won’t tell you is exactly how widespread those effects will be.
Not only will Proposition 107 eliminate public education, public employment and public contracting programs that promote affirmative action programs that benefit women and minorities, but passage of Proposition 107 will threaten many public service programs that our community need, such as battered women’s shelters and breast cancer screening programs.
As evidence, again, we need only look at a few important lawsuits that were filed in California in the wake of Proposition 209’s passage. Most of you should remember that Proposition 209 is California’s version of Proposition 107, and was passed by our neighbours to the west in 1996.
Both Prop 209 and Prop 107 say that they will only affect “public employment, public education, or public contracting”, which suggests that women’s shelters and breast cancer sceening programs — targeted public service programs — will not be affected by Proposition 107’s passage. Indeed, this is the argument that the “Yes on 107” side makes.
Measures like Prop. 107 are carefully crafted and precisely worded. The language clearly applies to government employment, contracting, and education, with the purpose of preventing the government from making race or sex a job or admissions qualification.
However, what “Yes on Prop 107” won’t tell you is that the scope of this ballot measure remains, in legal terms, unclear and subject to further interpretation. While we intuitively know what constitutes a “public employment, public education or public contracting” program, those definitions aren’t explicitly stated in the law. In other words, Proposition 107 is “carefully and precisely worded” — to allow for a vague and open interpretation, which is exactly how its backers want it.
Yes on 107 dismisses these concerns in regards to domestic violence shelters and breast cancer screening by saying, “Domestic violence shelters don’t fall into [the categories established in Prop 107]. Even if they did, Jennifer Gratz told me, there would be an exception [in Prop 209] for bone fide qualifications based on sex.”
While it’s true that Proposition 107 includes a caveat that prohibits “bona fide qualifications based on sex”, this is what I like to call a “political” exception, not a legal one. In other words, it’s included in Proposition 107 to give its political backers some wiggle room while trying to get the measure pass by saying that certain beloved programs would qualify for an exception, but legally, it is not clear exactly what a “bona fide qualification based on sex” actually means. There is no certainty that domestic violence shelters and breast cancer screenings would fall under this exception; in fact, following Proposition 107’s passage, lawsuits would be necessary to determine how Arizona would interpret Proposition 107 and the exceptions it outlines.
Don’t believe me? This is exactly what happened in California with Proposition 209, which is worded exactly the same as Arizona’s Proposition 107, and which includes the “bona fide qualifications based on sex” caveat. Despite having this caveat in Proposition 209, domestic violence shelters and breast cancer screening programs were still subject to lawsuits.
Following Proposition 209’s passage, a lawsuit was filed against the state of California by Ward Connerly, whose California-based political action group organized and funded both Proposition 209 and Arizona’s Proposition 107. Connerly vs. State Personnel Board challenged the constitutionality of several state programs and was intended to have California’s Supreme Court decide the true scope of Proposition 209 and exactly what sorts of publicly-funded programs fall under its purvue. And, that was despite the fact that Connerly’s group crafted this “precisely worded” ballot measure.
In Connerly vs. State Personnel Board, the judges decided that (as summarized here) “Proposition 209… prohibits discrimination against or preferential treatment to individuals or groups regardless of whether the governmental action could be justified under strict scrutiny.” Strict scrutiny essentially refers to specific cases where the state government deems racial or gender classifications to be necessary to achieve a very narrow and specific purpose. Although Proposition 209 itself only applied to public employment, public contracting and public education, the court’s decision established that California would interpret Proposition 209 as superceding any instance where the use of racial or gender classifications was appropriate under strict scrutiny. In short, this single statement expanded the scope of Proposition 209 beyond its original writing.
In the wake of this decision, two cases were filed against battered women’s shelters that limit their services to female victims of domestic violence: Blumhorst vs. Haven Hills and NCFM LA vs. State of California. The second lawsuit, additionally, challenged state funding for breast cancer screening programs that target women. NCFM stands for the National Coalition of Free Men, and is a group dedicated to “men’s rights”, and they have challenged anything they deem as preferential treatment for women, including women-only bathrooms on airplanes. In the case of domestic violence shelters, limiting entry to female victims is intended to protect those women — many of whom are recovering from recent rape or assault — from their abusive husbands, and from additional psychological trauma. Although both lawsuits failed to eliminate female-specific battered women’s shelters or breast cancer screening programs in California, this was due in part to California statutes explicitly establishing protection for such programs; I’m not aware that Arizona has similar legal protections for women’s health programs in this state.
Further, the financial and political costs of such legal wrangling was damaging both to the state of California and to the specific programs in question. Correct me if I’m wrong, but with passage of Proposition 107 here in Arizona, a similar history of legal wrangling would be required to establish this state law’s exact scope. Arizona would be at the mercy of state judges to determine exactly what constitutes a public education, public employment and public contracting program, and how Proposition 107 will be applied to other state-funded programs. A decision by Arizona judges that might broaden the scope of Proposition 107 could, as it did in California with Connerly vs. State Personnel Board, open other state-funded programs to further lawsuit.
It would be non-factual to say that with passage of Proposition 107, women’s shelters and breast cancer screening programs would cease to exist in Arizona; this is not the argument I am making, nor would such an argument be supported by the fact that California statutes, independent of Proposition 209, protect funding for women’s health. Let’s be clear: California still has domestic women’s shelters and breast cancer screening programs.
But, simply put, Proposition 107 will, like its predecessor in California, invite years of additional legal debate and wrangling to establish the measure’s specific scope and interpretation. Arizona can ill-afford to go through such a litany of lawsuits, both financially and politically. Each of these lawsuits means thousands, if not millions, of dollars spent by the state in defending themselves in court. In addition, each of these lawsuits invite another public relations nightmare for a state that has already been characterized so negatively in the national media when it comes to civil rights.
And worst of all, Proposition 107 will open women’s shelters and breast cancer screenings to criticism and scrutiny that could hamper their mission and day-to-day operation.
Please protect the health of women in Arizona and vote no on Proposition 107 tomorrow.
Cross-posted: Blog for Arizona