This is one of those posts that I've got to hurry up and finish, before the premise goes kaput. Last night, Rachel Maddow did a segment on the lack of widespread conservative outrage over the decision overturning California's Proposition 8. There were some predictable mindless squawks--serial adulterer Newt Gingrich, erstwhile playboy Fred Thompson and the like--as Maddow noted. But it was pretty darned sparse. The legal challenge was on Rachel noted....
But the political fight over this does not seem to be happening. Did you notice any big press conferences in Washington? Anti-gay marriage Republicans envying against this marriage ban being overturned? No. Nothing.
And Congress is in session. I mean, the Senate actually passed a big state aid deal today. The House was called back into session after members had gone home so they could pass it, too. Members of Congress are around right now.
But when this huge pro-gay marriage ruling came out, where were the outraged Republicans? Where are you? You guys used to be so good at this....
I mean, not only was this a judge in San Francisco striking down a gay marriage ban, but with perfect timing now for the election in a few moments, he struck down that the ban in terms that I swear were designed to end up on anti-gay marriage Republican placards and bloody hand-printed campaign buses.
I mean, he wrote this: "The gay marriage exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed."
Come on, where is the Republican Party? Karl Rove, where are you? What happened to your gay marriage as your great wedge issue? Where's the Republican Party making political hay out of this to run on in November? This is a long slow curve ball right over the plate for Republicans.
Maddow's set-up was better than the discussion that followed (always a distinct possibility with Jonathan Alter in the house), which shed some light, but not a whole hell of a lot. And a piece in Salon's War Room today, ("Will Republicans echo the AFA's campaign to impeach Prop. 8 judge?") suggests that things may soon get in gear. But the question remains: How could there not be an instantaneous expression of conservative outrage?
I think I've got an answer: This is what America looks like when the conservative hegemony machine is down for repairs, or otherwise engaged in stoking cultural hysteria on so many other fronts that it can't easily deploy reserve forces. Center right nation? Not today, folks. We're all out of ingredients!
For me, this was the closest Alter came to getting it:
When you argue based on fear, you can win at the ballot box, but you will lose in court. That's the bottom line of the district court decision overturning Proposition 8--and of a comprehensive new report on the Propositon 8 election campaign, which focused specific attention on the role of fear generated by false charges that school children would be impacted. (More on the report below.)
From the end of the decision:
Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 ("[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.
CONCLUSION
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.
Proposition 8 was overturned because of the facts--including the facts surrounding the resort to unfounded fears, which do not provide a rational basis for discriminatory state action under our Constitution (about which, the right as a whole understands virtually nothing). This is how the federal court system works: The district courts--trial courts--are finders of facts. This is the only place where Justice Roberts' claim to be an "umpire calling balling and strikes" makes any sense. Above and beyond this level, arguments overwhelmingly address matters of law and questions of proper application. The trial court's findings of fact enjoy a heavy presumption that is rarely questioned, which is a strong reason to believe that the ruling will stand on appeal. It also doesn't hurt that the ruling relies on citations to previous rulings by Justice Kennedy. Presuming Kennedy feels that he has been correctly cited, it seems unlikely that he would join his more conservative colleagues in overturning this finding of fact by arguing that the judge got the law wrong.
[I]f the Supreme Court reverses the district court's decision that same-sex couples have a right to marry, it will have to do it in the teeth of Judge Walker's factual findings that same-sex marriage is good for gay people and the children they raise (one out of five same-sex couples in California are raising children), that there are no discernible differences between same-sex and opposite-sex couples, that "domestic partnerships" offer fewer benefits than marriage and irrationally stigmatize same-sex relationships as inferior, that recognition of same-sex couples' right to marry does no detectable harm to heterosexual marriages, and that the campaign for Proposition 8, which outlawed same-sex marriage in California, relied on prejudice and vicious anti-gay stereotypes, such as the idea that gay people are dangerous to children.
Judge Walker carefully avoided resting his holding on any controversial proposition of law, such as the idea that gay people should be regarded as a specially protected minority under the Fourteenth Amendment. Instead, he relied on law already laid down by the Supreme Court. He held that Proposition 8 lacked a rational basis, because the "facts" that were invoked in its defense were manifestly false.
It's been noted by many others as well as Koppelman that there was a long list of factual findings by judge in his ruling. But I'd like to focus on some key parts of the ruling that bring forth what seem to be the most crucial of them--the overwhelming preponderance of evidence from the plaintiffs, and the basic agreement of the proponent's key witness that gay marriage would be good for those whe were married, plus the implausibility that any harm to the state would result.
This week in a San Francisco Federal District Court, a legal odd couple will be on display. Attorney David Boies, who represented Al Gore before the U.S. Supreme Court in the infamous 2000 case ofBush v. Gore, and conservative attorney Ted Olson, who represented George W. Bush, are joining forces to overturn California's Proposition 8. It will be their contention that the initiative passed by voters in 2008 banning same-sex marriage in the Golden State violates the Equal Protection and Due Process clauses of the U.S. Constitution, singles out gays and lesbians for a disfavored legal status, and discriminates on the basis of gender and sexual orientation.
Regardless of which side prevails, experts agree the case is likely to be appealed all the way to the highest court in the land.
I'm back home in San Francisco, after spending 10 days on the ground in Maine with the "No on 1" campaign. After my time there, I truly believe that - with our help - Maine will become the first state in the nation to successfully defend marriage equality at the ballot box, providing a roadmap for California to repeal Proposition 8. Maine activists have been working hard for five years to pass gay marriage, but events in the last few days now point to what should be an historic victory on November 3rd. With only 19 days left, what I'm seeing from the "Yes on 1" campaign reminds me of where "No on 8" was at this point last year - outgunned by the opposition, unable to control the message and at a loss about what to do. If Question 1 passes, it will be our fault for not having done more. But if Question 1 fails, those of us who get involved will have made history - which is why I hope to go back for the last four days. Here are the reasons for my optimism ...
Tonight, I'm taking a red-eye flight to Maine - arriving in Portland tomorrow. I'll be there for 10 days, volunteering for the "No on 1" campaign to protect marriage equality. And I'm taking my laptop with me - so readers will get my daily dispatches. As a Californian, the fight against Question 1 is personal. Gays and lesbians last year had their rights snatched away, and it can never happen again. Proposition 8 was eminently beatable, but our side ran a bad campaign - and I'm determined to take my work and experience to assist the effort in Maine. The right has long argued that every time "the people" get to vote on same-sex marriage, it loses. It is time to deliver them - and their consultant, Frank Schubert (who ran "Yes on 8" and is now running "Yes on 1") a humiliating defeat, one with national implications. But one person can only walk so many precincts. That's why we'll be working to help send volunteers from across the country over the next 32 days, because everyone needs to chip in for this fight.
A little while back, I wrote about how the haters in Maine are using fear of "gay sex education" in public schools as a weapon to scare people into stripping rights away from gay couples in Maine. Here's the bulk of the original e-mail Stand For Marriage Maine sent out:
For many of us, this week marks the start of the new school year. So in honor of back-to-school season, let's try a little pop quiz. Which of the following does not belong in the same group as the others:
(A)History
(B)Mathematics
(C)English
(D)Homosexual Marriage
If you guessed ''D'' - you're right! Mainers firmly believe homosexual instruction has no place in the classroom. Maine's public schools should focus on reading and writing, not mandatory gay sex education.
There's only one problem: an irresponsible piece of legislation known as LD1020. If allowed to take effect this law would throw to the trash heap our decades-old interest in promoting traditional marriage. It would legalize homosexual, genderless marriage. And if marriage is redefined to be genderless, then same-sex marriage must be taught as being the same as traditional marriage. This has profound consequences for your child's classroom education.
Today, Bill Nemitz of the Portland Press Herald picks up the theme debunks the e-mail while ripping the chair of Stand For Marriage Maine, Marc Mutty, a new one:
All of which raises an intriguing question: Who really wrote this - and what have they done with the old Marc Mutty? Mutty was out sick Thursday and thus unavailable to explain what's causing him to see things in Maine's same-sex marriage law that, from any reality-based angle, simply aren't there.
But the Rev. Bob Emrich of the Emmanuel Bible Baptist Church in Plymouth, a member of Stand for Marriage Maine's executive committee, said the group stands by Mutty's claim that the same-sex marriage statute will require "explicit homosexual instruction in the classroom."
One problem. Emrich and Mutty are wrong. Nowhere in the law do the words "school" or "classroom" even appear.
And if you're looking for phrases like "explicit homosexual instruction" hidden in some obscure statutory subsection, trust me - it's not there. Not even in code.
[...]
In a statement issued via e-mail Thursday, Jesse Connolly, campaign manager of No on 1/Protect Maine Equality, predicted that Maine voters will "see through these cynical campaign tactics" by Mutty & Co. as the debate heats up in the coming weeks.
"This is an attempt to divert attention and raise unfounded issues," said Connolly. "Question 1 has nothing to do with schools and no one is voting on curriculum in November."
Connolly is right - and anyone who's taken the time to carefully read Maine's same-sex marriage law knows it.
Including, of all people, Marc Mutty.
This hits the nail right on the head. We still have a fight on our hands, though. The Catholic Bishop in Maine is taking up a second collection in churches around the state for money to fight LGBT equality. Karen Ocamb, who in my opinion has done the best reporting on the optics of the Prop 8 fight in CA, has a brilliant expose at Dirigo Blue on how the same entire religious right that mobilized there is setting up shop in Maine. The haters in Maine are using the same consulting firm, Schubert Flint Public Affairs, that the Yes on 8 campaign used in CA.
Got off a call on the Maine campaign to protect marriage equality, with a few updates:
I wrote last week that the campaign had a $10,000 matching grant from a donor in Maine. The donor then increased the match to $20,000, and we hit that by this past Friday. Thanks to all who gave, that is huge.
The co-chair of the anti-marriage equality group in Maine, Stand For Marriage Maine Coalition, compared LGBT couples to trees, saying:
A barren field full of stumps has had all its trees treated equally, to be sure. But that makes as much sense as looking at the extreme changes to Maine's marriage law approved recently by Gov. Baldacci and calling it marriage equality.
AUGUSTA, MAINE -- Fred Karger, founder of Californians Against Hate, an LGBT watchdog group, sent a letter detailing alleged election law violations by Stand for Marriage Maine to the Maine Commission on Governmental Ethics and Election Practices. The request for an immediate investigation was sent yesterday to the Jonathan Wayne, the Commission's Executive Director and a copy to attorney General Janet Mills.
The nine page complaint (below) and fourteen attachments spell out how the National Organization for Marriage (NOM), the Roman Catholic Diocese of Portland, Knights of Columbus of Washington, DC and James Dobson's Focus on the Family had contributors give the money to their organizations, and then they in turn gave the money to the Stand for Marriage Maine in order to hide the identity of the donors.
[...]
"The Church of Jesus Christ of Later-day Saints (Mormon Church) created the National Organization for Marriage specifically to qualify and pass Prop 8 in California. Now they have NOM doing their bidding in Maine, Iowa and all over the Northeast," concluded Karger.
The campaign has set up a "Volunteer Vacation", a great idea, to help folks who want to help with the campaign go to Maine for a week. Immersing onesself in a campaign is really a great, and useful, experience. I did so in 2006 in NY-29 (Massa) managing field and not only was it really a get-away, I learned a lot.
I want to reiterate that this is literally a 10-week campaign until Election Day. It's going to go by fast. The campaign has set up four weeks in October to work, and will provide you with housing. We're also working with TravelForChange.org, which received donations of 11 million airline miles to help Obama volunteers travel last cycle, to help folks financially get to Maine. More on this soon. If you're all set to go with booking your own plane ticket now, sign up here. I'm looking at going up in late October. As Joe Sudbay (who's from Maine) wrote, the folks on the ground are the best, most experienced pros in the state, so you'll be in good hands.
When I was at Netroots Nation last week, I sat in on a meeting organized to work on the No On 1/Protect Maine Equality campaign to protect the recently-passed marriage equality legislation in Maine from repeal. Aside from being a gay man and caring about this very much, I was impressed by one big thing: that in what is an election less than ten weeks out, the No On 1 campaign sent four staff members, including their campaign manager and finance director. I'm not much the cynical "oh, they've just after the netroots ATM" type. Rather, I've talked to my friend Joe Sudbay over at AMERICABlog about them, who is from Maine, and knows many of the staff personally. These folks respect the netroots, respect our ideas and suggestions on the campaign (including lessons learned from folks who worked on Prop 8 in California), and are asking in good faith for our help.
Exhibit A is their first TV spot now up, which gets everything right about how to get at the "ick" factor of LGBT couples in an ad that the Prop 8 committee got wrong.
It shows straight individuals and straight families allied with LGBT couples (did you catch the word "together" repeated three times?). It shows LGBT couples in loving relationships. The Maine residents featured talk about progressive values of respect, fairness, and how LGBT families can make loving and committed families too. I watched it several times.
Losing Prop 8 hurt, and the one other thing I sensed at the meeting was that there are a ton of folks itching to get it right- uphold marriage in a statewide vote, and send a message to the rest of the nation. And right the mistakes we made in California. I want to do that as much as I am concerned that if we lose a second vote, it will not only depress activism and enthusiasm on our side, but will embolden the hate groups and individuals to keep on giving when one of them points to two major successful campaigns in the last two years to say, look, we know how to win these things. Give to us and we'll make sure we get it done in other states. And folks who are undecided around the country will take note of the results.
One of the worst results is that it will make the Obama Administration, which is already cautious and timid on LGBT issues, even more cautious.
We can't let that happen. The right-wingers- National Organization for Marriage, Focus on the Family, Knights of Columbus, the Catholic Diocese have already pumped hundreds of thousands in. The Mormons have done it through more covert means. The same consulting firm that ran the Yes on 8 campaign in California- Schubert Flint- is consulting for them. We have to match it. And I just learned that if we raise $10,000 by Friday, a Maine resident will double it. Let's get it started.
When Barack Obama ran for President, he pledged to fully repeal the federal Defense of Marriage Act (DOMA) - a mean-spirited piece of legislation that Bill Clinton signed in 1996 for crass political reasons. Obama says it's still his intent to do so, but has yet to follow up with any action. Meanwhile, the U.S. Justice Department filed a brief late last week defending a constitutional challenge to DOMA. The brief did not merely argue against the lawsuit on technical grounds such as the plaintiffs' lack of standing, but advanced legal arguments that - if pursued by the courts - could greatly damage gay and lesbian rights. Most lawyers at the Justice Department who write these briefs are civil servants who cannot be replaced by a new President, and one of the authors was in fact a right-wing holdover from the Bush years. But Tony West, an Obama appointee and the brother-in-law of San Francisco District Attorney Kamala Harris, allowed it to be filed in court - and his name appears on the front page. As Assistant Attorney General for the Civil Division, West may argue that he's "just doing his job" - i.e., defending existing federal law. But the Administration can use discretion in these lawsuits, making this unacceptable.
The campaign to restore marriage equality in California had its kick-off in Fresno today. Calitics gave me the idea, you can start there, or go directly to the twitter feed from the equality event just ending in Fresno. Sample tweets:
#CourageCampaign: Molly McKay in a wedding dress and others catch the Castro flag as it is lowered #MITM4E http://yfrog.com/1a9owyj 10 minutes ago from Twitterrific · Reply · View Tweet
#Twit1_normal
thedivax: Yes Ya'll Charlize Theron was @ Meet in the Middle - http://twitpic.com/6atei #mitm4e
12 minutes ago from Tweetie · Reply · View Tweet
#Bartlett_normal
harveymilk: RT @wonderwillow: Cleve Jones has Harvey Milk's bullhorn- to remind us that all is POSSIBLE!! #mitm4e
13 minutes ago from UberTwitter · Reply · View Tweet
"Join the Impact" began as a blog post and email template by Willow Witte, a friend of Balliett's who had sent the missive to inspire friends after the passage of California's anti-gay marriage Proposition 8.
[...] Balliett responded to her friend's email saying, according to a post on the site, "We shouldn't wait, we need to mobilize now, and we need to on a national level, at the exact same moment, throughout the country."
And mobilize they did: this past Friday, Nov. 7, '"Join the Impact" hit the web. Five hours later, the site logged 10,000 visitors. Apparently a lot of other people shared the young women's desire to turn despair into resolve.
By midnight, 20 cities' worth of young volunteers had signed on to organize protests against the discriminatory propositions.
The next evening, Nov. 8, the site had tripled its hits.
By Monday morning, a plan had emerged: Cities around the country would organize their own efforts to coordinate a synchronized protest for Sat., Nov. 15, 10:30 a.m. PST. The movement became officially global with hits from the UK and France, and by Nov. 11, over one million visitors had come to the site.
Balliett said supporters in 300 cities in the U.S. and other countries were holding marches, and she estimated 1 million people would participate, based on responses at the Web sites her group set up.
If you don't understand why it's so wrong to officially validate Rick Warren, read this. Gay kids learn that being gay is wrong, so they try to stop being attracted to the person of the same sex. And they fail. And they have horrible problems until they come to terms with their sexual identity. It's no wonder that gay teens have higher suicide rates than straight teens.
Sexual identity is part of who you are. Period. Passing hate crimes and anti-discrimination statutes and civil unions laws and the like are not bad actions, but the leader of this country announcing that he does not believe that gay people should have the right to marry their life partner, but straight people do, is pretty awful. Saying so while preaching tolerance for bigots doesn't actually change my mind on that point.
America has always had a reactionary streak which reflects other peoples' rights as irrelevant or immoral. There was a morality dressed in Christian garb built up around slavery, denying women the vote and taking land from Native Americans, to pick three obvious examples. But America also has a strong anti-racist tradition, and this tradition does draw power from the line that 'all men are created equal'. Well, um. You get the picture. Anyway, both can create political power, but you can't throw away the rights of one group without damaging the rights of other groups. Gay rights and women's rights advance in legal circles, building on each others' precedents. And I don't think it's a coincidence that America so egregiously kills Iraqis without consequence to its political leaders, and that the same groups that push said decisions (like Rick Warren) are the ones that seek to deny gay people rights.
There is no three dimensional chess here or political calculation that makes sense on this point. If the argument is that sacrificing the rights of another group on the altar of political power is a reasonable choice, then you should remember that a society that callously denies one group their humanity can just as easily deny you yours.
Los Angeles County has finalized its vote totals for the election, showing a very slight edge for Prop 8, bannning gay marriage--1,623,741 (50.036%) Yes to 1,621,389 (49.963%) No--and an overwhelming edge for Barack Obama--2,294,676 (69.227%) to 955,803 (28.835%) for McCain.
Comparing votes at the precinct level county-wide, we can visually identify two trends--one is a large diagonal clumping that indicates a more-or-less 1-1 relationship between Obama votes and No on 8, the other is a more-or-less constant level of opposition around 60% or so:
A) Laughable? What's "laughable" is Gary's "6,000 years" assertion re some global six-millennia-strong definition of marriage.
B) Consequences? Gary: maybe some of us are thinking about the consequences for first- and second-graders with LGBT parents, rather than simply ignoring them.
C) Frame it however you'd like, Gary, but if I allow my kids to attend the wedding of a teacher - who they adore - what business is that of yours? Your framing of what you call "a mistake" strikes me as yet another example of folks like you making it your business to infringe on the rights of parents like me.
I just finished reading this from the LDS "Newsroom" ...
Which reminded me that I'd previously written Maurine Proctor (editor of an influential Mormon mag) back in August about some of the stuff that Meridian (her mag) was putting out there in support of Prop 8 ... and that she'd replied with an article by Roger Severino, legal counsel for the Becket Fund for Religious Liberty.
The same Becket (of recent No Mob Veto fame) and Ballard (of Mormon Apostolic fame) who were BFF long before they recently started whining about our post-election actions.
Which led me to mutter to myself: enough with the Kabuki, Ballard.
As if Stop The Mormons hadn't long since put together the definitive timeline re your shenanigans.
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