Proposition 107

Sept. 25, 2006

Transcript:

Michael Grant:
Tonight on Horizon, a lawsuit challenges the constitutionality of the corporate tuition tax credit, which allows corporations to divert a part of their taxes to private schools. And a look at one of the most discussed propositions of the November ballot. We'll explain proposition 107 the Protect Marriage Arizona Measure.

Michael Grant:
Good evening, thanks for joining us tonight on Horizon, I'm Michael Grant. Arizona School Boards Association and the American Civil Liberties Union have filed a lawsuit challenging the constitutionality of the Arizona Corporate Tax Credit Act. The tax credit became law without the governor's signature earlier this year. She had vetoed it twice but then negotiated with the Republican leaders and state legislature during last session's budget battle. Here to talk about the lawsuit are the ACLU's Marvin Cohen, and from the institute for justice, Tim Keller. Gentlemen, good to see both of you. Marv, why does the ACLU think the corporate tuition tax credit is unconstitutional?

Marvin Cohen:
Well, the constitution of Arizona, in at least three places, says that public funds or taxes should not be used to support private schools or sectarian schools. This issue came up with regard to the individual tax credit a few years ago, and the Arizona Supreme Court, in a divided 3-2 decision, upheld that law. There was a strong dissent by former Chief Justice Feldman explaining why he thought that was wrong. This new law, creating a tax credit for corporate contributions, is a little different from the previous law.

Michael Grant:
How so?

Marvin Cohen:
It has a provision in which they state the purpose of the act. And they say its purpose is to allow corporations to direct a portion of their taxes to school tuition organizations. Now, part of the reason the majority in Cotterman versus Killian said that this didn't violate the constitution was they said these weren't taxes or public funds. But here the legislature is saying the corporation can direct a part of their taxes to school tuition organizations.

Michael Grant:
Tim, did the legislature shoot itself in the foot? I don't know that precisely that is what is happening here, but if the legislature expressed a sentiment that, "gee, this is a good way to drive tax dollars to private schools and church institutions." Did they blow their foot off?

Tim Keller:
Well, three times school choice opponents have challenged school choice here in Arizona, and I don't think the third time will be the charm. The idea that this tax credit constitutes an income tax is actually very illogical. You have to consider the fact that this is a tax credit, which, by its very nature, it's reducing the tax liability of corporations. I think Arizona corporations are going to have to look very closely to find anybody paying taxes as a result of this program.

Michael Grant:
Marv, that does seem to be the flaw in the squaw and I will admit it's been a while since I read that opinion from 1999. But I think the courts struggled with that question. Although you can get their circuitously, this is still not a tax dollar going --

Marvin Cohen:
Except the legislature called it a tax. It's not a tax when the legislature said they're diverted taxes --

Michael Grant:
It's the whole thing about a committee designing an elephant. But, even though they called it that, is it really a, for example, a tax laid in support --

Marvin Cohen:
Yes.

Michael Grant:
Of church or schools for example?

Marvin Cohen:
Yes, it certainly is. At the time they lay it, they're telling corporations they can take a piece of that tax and send it over to school tuition organizations for religious schools. When they lay the income tax for provision with a portion of that tax, which is what they said-a portion of this tax can go over to private schools or religious schools-they are violating the words of the constitution, and the spirit. You're forgetting about the spirit. The constitution in three places talked about how important it was to keep private schools from being supported by tax money. And this goes back to 1870 in Arizona. There's a whole history of the development of this principle. Let me correct one thing. This is not an anti-choice question. I supported charter schools. That's a choice, a concept. This is not an anti-choice question. This is a question of living up to the constitution, and preserving the separation of church and state.

Michael Grant:
Tim, what about -- there certainly is a very strong separatist bent in Arizona's constitution. Does this violate, if nothing else, the spirit of that separatist bent?

Tim Keller:
Absolutely not. And there's two reasons for that. The first is that Arizona's religion clauses unfortunately are the heritage, a vestige of anti-Catholic bigotry. There was a United States senator by the name of James Blaine who tried to ride a national wave of anti-immigrant, particularly Catholic, bigotry to the presidency, particularly by amending the U.S. constitution that includes nearly the same language in the Arizona constitution.

Michael Grant:
The First Amendment wasn't good enough for this guy?

Tim Keller:
That's exactly right. When that didn't work, the congress was able to require many of the western states to include these provisions in their constitutions as a requirement for admission into the Union.

Michael Grant:
Regardless of the motivation though, it is strongly suggested expressed. And to the extent, admittedly that you get some public support around the horn into what oftentimes will be a church school. Are you violating the spirit of the Arizona constitution?

Tim Keller:
No, and that's the second flaw in the ACLU's argument here. That's because no money ever reached a religious school or institution except through multiple layers of private choice. First you have individuals who decide -- in this case corporations, who decide whether or not to donate school tuition, and then the parents deciding where to apply for scholarships, and then where to direct those dollars. All of it is a result of purely private choice.

Marvin Cohen:
This is a real artifice. First of all, in this particular statute there is state involvement because no corporation can make a contribution without first going to the Department of Revenue. So the Department of Revenue has to approve the corporation to make a contribution. That's a different part of the tax credit addressed in Cotterman vs. Killian.

Michael Grant:
Marv, that's for purposes of keeping track of how much money is at stake. They don't literally have to ask the D.O.R. for permission, do they?

Marvin Cohen:
Yes, the D.O.R. has ten days to respond.

Michael Grant:
To advise that there's sufficient tax credit left?

Marvin Cohen:
Yes, but it's a state involvement that wasn't there before. Let me respond to this business with the Blaine Amendment. Mr. Blaine was not alive or in the senate back in the 1870's or the 1880's. If you look back to the real history of Arizona, the legislature of Arizona, in its territorial days, was adopting the separation provisions to move from having religious schools providing education, to having public schools provide education, and to keep the tax dollars in the public schools. Here we are, the 50th worst -- out of 51 states and territories, we have almost the lowest record of public dollars that we spend per student in Arizona. Last year we diverted $42 million away from the public schools into private schools.

Michael Grant:
Tim, a lot of people do see this as, if not a zero sum game, at least a loss for the public school system, because there is this redirection of potential revenues. How do you respond to that?

Tim Keller:
The first is that this past session, the public schools received at least $430 million of new revenue from the state legislature. There's hardly a suggestion that they are failing to fund public schools adequately. But the second, with regard to this particular program, is that by requiring students to be transferring from a public to a private school, there will be a net savings to the state. While up front, the state may be losing $10 million in tax revenues, they're saving money by not having to educate those students in private school.

Marvin Cohen. But there's a loophole.

Tim Keller:
Our estimate suggests that net savings can be anywhere from 18 to 25 million a year.

Marvin Cohen:
There's a loophole you haven't told them about. There are 19,000 students now getting the tax -- the tuition through this program from the individual program. All of them are eligible for this corporate money. And 90% of them are students who didn't transfer.

Tim Keller:
That is absolutely incorrect.

Michael Grant:
We'll have to leave it on that, because we're absolutely out of time.

Michael Grant:
Tim Keller, thank you very much for joining us. Marvin Cohen, our thanks to you as well. We'll see you in court.

Michael Grant:
It's called one of the most controversial and debated measures placed on the November ballot, and the measure is proposition 107, the focus to protect Arizona marriage. Supporters say it would legally acknowledge that marriage is between a man and a woman and it should be protected under Arizona's constitution. It not only attacks same-sex couples who want to be married but -- before we begin our discussion, Nadine Arroyo introduces us to the measure.

Nadine Arroyo:
Proposition 107, also referred to as the Protect Marriage Arizona measure, would have the constitution add new laws to preserve and protect marriage.

Male:
Alright, well I called and they're going to come and work on the AC. And Charlotte will be just happy as can be.

Nadine Arroyo:
Current Arizona statutes stipulate that marriage between same-sex people are void and prohibited. But supporters say more must be done to protect traditional marriage. This proposition would amend the constitution to include two more items. One, prop 107 would ensure that only a marriage between a man and a woman is legally recognized. And two, local governments shall not recognize the legal status of unmarried people. Prop 107 would change established laws within local governments that for years have recognized married partners.

Evan Wolfson:
The more the people in Arizona see that there are gay people here, they pay taxes, they work, they fight over who takes out the garbage, they raise their kids. They need to protection and support that others have. The more people see this, the more they will understand that discrimination is wrong.

Nadine Arroyo:
Opponents of the measure, like Paul Knobbe who is a City of Phoenix employee, say Prop 107 goes beyond just attacking gay couples.

Paul Knobbe:
It affects a lot of heterosexual couples. There's a small percentage of couples under the city domestic partner coverage that are gay. The majority are heterosexual couples just like mine. It'll affect them; take health care benefits away from their partners.

Nadine Arroyo: Proponents of the measure say the best way to have a healthy family is to have a married mother and father.

Paul Knobbe: I don't believe that marriage is the only road to a happy and healthy relationship. It is that narrow and bigoted perspective or mindset that has set this country back. And I am against an amendment that'll restrict people's freedom of choice.

Michael Grant:
Joining us tonight to talk about proposition 107 is Cathi Herrod. She is the president of the center for Arizona policy, the organization which got the measure on the ballot. Also here tonight is Kyrsten Sinema, also the chairman of Arizona Together and opponent of the proposition. Welcome to you both.

Michael Grant:
Cathi, why should people vote for proposition 107?

Cathi Herrod:
Thank you Michael. People should vote yes on 107, because marriage is under attack in our country. We've seen in the state of Massachusetts where activist judges redefined marriage to include gay marriage. Proposition 107 gives voters a chance to decide the definition of marriage, rather than state judges.

Michael Grant:
And Kyrsten, why should people vote against it?

Kyrsten Sinema:
Well, prop 107 isn't about marriage at all. The Arizona legislature already defined marriage very clearly in 1996 and Arizona courts have upheld that statute. What the initiative really does is take away health care, legal protection, and domestic benefits from thousands of families throughout the state. It has nothing to do with marriage, but it does hurt a lot of people.

Michael Grant:
The response to that argument is that is true, there is a state statute on this subject and it has been interpreted that way by the courts. But courts from time to time change their minds. Proponents say this is such an important issue we ought to embody that concept in the constitution. What do you say?

Kyrsten Sinema:
If this debate were just about the issue of same-sex marriage I think we'd be having a different conversation. It purports to talk about same-sex marriage, but what it does is take away things from unmarried couples that have nothing to do with marriage.

Michael Grant:
Cathi?

Cathi Herrod:
Let's talk about the benefits part of it. Proposition 107 says government cannot grant a legal status similar to that of marriage. It's actually more like 500 employees statewide who receive some sort of benefits from their government. This does not impact private business at all. Where government has granted benefits, then that would change. Here's the issue here. Frankly, for government to say, we'll give you benefits on the basis of being a domestic partner, of being an unmarried person in a sexual relationship with someone else, if you get benefits on that basis is discriminatory. What about the public employee who has an adult disabled child living with him. Okay. If you're in a domestic partner relationship we'll give you benefits. But if you're taking care of an adult, a sibling, a parent, a disabled family member, we don't give you help. So the city can grant benefits on an equal basis to all employees and that's the solution.

Kyrsten Sinema:
The numbers Cathi's mentioned are just not accurate. There are 534 domestic partners that would lose benefits. That doesn't even count Tempe, University of Arizona, Sunnyside School District, Maricopa Community College, Pima Community College and other local governments around the state. It truly impacts thousands of individuals. While Cathi and I might disagree on personal issues, the fact is that most Arizonans believe that if someone works hard and wants to insure their loved ones, they have a right to do so.

Michael Grant:
Cathi, what the intent was of Proposition 107 -- and let me make sure we're on the same page. We've talked obviously about marriage being only between a man and a woman. We've talked briefly about the impact on domestic partner benefits to heterosexual couples, as well. And then also it would prohibit civil unions, or let's say the legislature is doing something which is the equivalent of marriage. Am I accurately summarizing the three-pronged intent of proposition 107?

Cathi Herrod:
The intent is very simple. It's to define marriage as between one man and one woman. It meets the level of constitutional protection because a new court could always overturn, or state statutes, the definition of marriage as being one man and one woman. The other intent says government can't grant a legal statute, if it's similar to marriage that would prohibit civil unions or domestic partner arrangements. Here's what's happening in other states. You have Vermont and California that have civil unions and domestic partnerships that are everything but the name of the marriage. They're counterfeit marriages. If you're in a marriage or a civil union, you get all the benefits of a civil union. It's really a debate about what marriage is going to be in our state, in our country.

Michael Grant:
Why shouldn't people be able to vote on whether or not they want to preserve a concept that has been with us for several hundred -- well, probably several thousand years? What's inherently wrong with that?

Kyrsten Sinema:
People will be voting on that. But they're also being forced to vote on something they have a very different opinion on. Residents are uncomfortable with the idea of changing marriage to anything other than the traditional definition of man and woman. There's no argument about that. But this forces them to vote on how they feel about people living together in relationships. There are seniors who cannot be married because they will lose benefits. And those individuals should be able to live together and Arizonans believe that.

Cathi Herrod:
Prop 107 wouldn't impact that.

Michael Grant:
Shouldn't they be able to put together the same relationships --

Kyrsten Sinema:
As we both know, in the court system there's what's called the public policy decision, which means the court could at any time choose to ignore or not recognize that legal appointment. An example are two people I know very well, Al and Maxine. They're a retired couple living in Taos. They're on the domestic partner registry. Because they're on the registry they have the right to visit each other in the hospital and make decisions for each other when one is unconscious. If they did not have that, they would not have the same type of legal protection.

Cathi Herrod:
This amendment does nothing to prohibit someone from designating who can visit them in the hospital. It does not go there. It doesn't impact a senior unless they're a government employee, there is no impact. It doesn't affect seniors, non-government employees, or social security.

Michael Grant: Cathi, there is though. Why take it beyond the rather clear question of marriage being between a man and woman, and perhaps as well, civil unions? Why take that additional step? Because, as you know, a lot of polling results, including ours, have indicated that the support drops fairly markedly on those next two questions.

Cathi Herrod:
We have 20 states that have passed marriage amendments with an average vote of 70%. Having Arizonans understand that marriage has a special place in our society, and it's good for building communities, that's given married status to those who are married. They don't provide the same benefits to society that marriage has for hundreds of years, as you mentioned. That's the issue. If you simply say that marriage is the union of one man and one woman, you're allowing marriage counterfeits to come in like Vermont and California. We are saying that marriage provides benefits to society, and therefore marriage between one man and one woman is a status that should be preserved.

Kyrsten Sinema:
I think a lot of people would disagree with what Cathi's saying. Like Al and Maxine. Like some seniors, if they were to get married, she would lose her deceased spouse's pension benefits. Does that mean they love each other less? No. Does that mean they're less of a benefit to our society? No. People make decisions about what kind of relationship they want to live in, and that's their personal decision. Arizonans believe this goes too far. While they are similar on the issue of marriage and who should have benefits and rights of marriage, Arizonans believe taking away those protections, without the need to make costly powers of attorney or living wills, it's not an unusual thing and Arizonans are comfortable with that.

Michael Grant:
Cathi, I know you take conservative positions on a lot of issues. Do you think it's a good idea to take essentially a emotional concept and place it into the Arizona constitution?

Cathi Herrod:
Certainly there's a moral component to marriage, but it goes beyond that. Marriage between one man and one woman is how we have protected children and provided for our children for hundreds of years. It's been the fundamental building block of society. I believe Arizonans instinctively and intuitively understand that. I believe a yes vote will be the winning decision on that night.

Michael Grant:
Kyrsten, your side is trying to use the domestic partner benefit aspect of this, a pretty minor aspect, to leverage against the more popular side. How do you respond?

Kyrsten Sinema:
When you say it's the more minor aspect, I think that's the more significant aspect. The day after, if this passes, thousands of people will lose their health care. And to me, that is incredibly important.

Michael Grant:
So the two of you are in disagreement as to how many people are covered by those kinds of things?

Michael Grant:
My figures are based on an Arizona Republic story from last year. Those employees do not have to lose their health benefits, simply their employers need to provide benefits on an equal basis to all employees. Why wouldn't government do that, as opposed to only providing benefits to a small number of employees who, because they are in an unmarried domestic partner relationship.

Kyrsten Sinema:
That's the first time I've heard an Arizona policy advocating for greater health care rights. At least we agree on that one.

Michael Grant:
Kyrsten Sinema thank you very much for joining us. Cathi Herrod good to see you again. I guess we'll find out what the voters think in November.

Cathi Herrod:
We will.

Merry Lucero:
It's a hot issue. Two competing anti-smoking measure will be on the November ballot. One would prohibit smoking in all public places with a few exceptions. The other would allow smoking in bars and areas in restaurants that are closed of and separately ventilated. Hear both sides plus the latest Cronkite-Eight Poll, Tuesday at 7 on Horizon.

Michael Grant:
On Wednesday, we're going to be taking a look at proposition 204 which would require the humane treatment of animals before slaughter. Thursday we'll take a look at all of the immigration proposals on the ballot, and then Friday please join us for the Journalists Round Table. thank you very much for being here on this Monday evening. I'm Michael Grant. I hope you have a great one. Good night.