It was about a week ago that we saw the ruling throwing out California's Prop 8; that decision has now been appealed, and we will see, at some point in the future, how the 9th Circuit Court of Appeals handles the matter.
A couple of days later, I had a story up that walked through the ruling, describing the tactics used by the Prop 8 proponents, which, in the opinion of the Judge who looked at the evidence, were basically to try to scare Californians into thinking that gay people, once they're able to get gay married, will somehow now be free to evangelize your kids and make them gay, too.
In the course of answering comments on the several sites where the story is up, I noticed that there were those who felt the Bible should be guiding our thinking here...that if it did, we would be better off than where we are today, with all those immoral gay people running around free to do all those immoral gay things.
This led me to an obvious question: are those who have been using the Bible as a sort of "divining rod" to figure out who is immoral and who is not...actually any good at it?
Normally I wouldn't inflate your blood pressure by asking you to watch FOX News, but this clip is not only tolerable, it's kick-ass. Ted Olson gave a clinic on how to dismantle certain conservative legal arguments on Prop 8 yesterday on FOX News Sunday:
1. "Judicial activism" and the stupidity of that term. Olson echoes a point I made when the ruling came down. I wrote in response to NOM's e-mail blast:
Of course, it's only judicial "arrogance" or "activism" when they don't like the decision. District of Columbia v. Heller, which struck down popularly supported gun control laws, legislated by the duly elected representatives of the people in DC? Not judicial activism at all.
Yesterday, when asked by Chris Wallace for a definition of judicial activism, Olson replied:
Most people use the term "judicial activism" to explain decisions they don't like.
Couldn't have said it better myself, Ted.
2. Tyranny of the majority. Wallace keeps sputtering about 7 million people having voted the other way on this issue. In the first place, yeah, and 6.4 million voted for equality. We're talking about a 52-48% decision, so it's not like we're a fringe minority here. But second, and the point Olson makes, is that millions of people also voted to enshrine discrimination on the basis of race into their state constitution in the 1960s, which was struck down by the Supreme Court. The point is that people vote for a lot of things. Doesn't mean they're always right. We have judges and separation of powers to ensure the Bill of Rights, and rights of the minority are protected.
3. State-by-state populism as a path to law, and that the right to same-sex marriage isn't found in the Constitution. Wallace makes a (smart, for his side) comparison to Roe v. Wade to argue that Olson et al are "pushing" full equality on 45 states. Olson rebuts with the point that these are fundamental rights that are in the Constitution, and it wouldn't be appropriate for FOX News to have to wait to get freedom of the press in 45 states, one by one.
All in all, a great case for our side.
UPDATE: In a piece that is sure to send your blood pressure through the roof, I see that hogan at RedState, a conservative blog, blew a gasket this morning over Olson's appearance. He essentially argues that the federal judiciary serves no legitimate oversight purpose other than to validate the decisions of majorities of people and their elected representatives, lest they become "holier-than-thous", which is apparently what they were in Brown, Loving, Roe, and who knows how many other cases. The best hyperbole, though:
Gay "marriage" is not the preferred policy choice of most Americans - and, even, a majority of Californians. Yet Olson wants some judges to use the Constitution to mandate a false notion of equality that will amount to the biggest breach of societal stability in the history of mankind.
The airwaves (and the print and blog waves, for that matter) are filled with the news that a Federal Judge in California has declared that State's Proposition 8 to be unconstitutional, which could clear the way for the resumption of same-sex weddings in the State.
Ordinarily, this would be the point where I would present to you a walkthrough of the ruling, and we'd have a fine conversation about the legal implications of what has happened.
I'm not doing that today, frankly, because the ground is already well-covered; instead, we're going to take a look at some of the tactics that were used to pass Prop 8, as they were presented in Judge Vaughan's opinion.
It's an ugly story-and even more than that, it's a reminder of why it's tough to advance civil rights through the political process, and what you have to deal with when you're trying to make such a thing happen.
I've been absent of late b/c I've been handling coverage of National Organization for Marriage and their "Summer for Marriage" tour over at Courage Campaign Institute's NOMTourTracker.com (you can view all the coverage here), but wanted to stop back over and provide today's decision coverage. If you didn't hear, a decision is expected in the Perry v. Schwarzenegger case (colloquially known as the Prop 8 trial) between 1 and 3 PM PST today.
Some morning pre-game round-up coverage:
Over at the DailyKos diaries, indiemcemopants notes that the proponents of Prop 8 have already filed a motion to stay whatever decision comes down from Judge Vaughn Walker. You can read a copy of the motion here. The rationale is fascinating (bolding from indiemcemopants' diary):
Further, absent an immediate stay of any ruling invalidating Prop 8, same-sex couples would be permitted to marry in the counties of Alameda and Los Angeles (and possibly throughout California). Same-sex marriages would be licensed under a cloud of uncertainty, and should Proponents succeed on appeal, any such marriages would be invalid ab initio. Indeed, in 2004, the City and County of San Francisco issued marriage licenses to same-sex couples, resulting in approximately 4,000 purported same-sex marriages in about one month's time.See Lockyer v. City and County of San Francisco, 95 P.3d 459, 465, 467 (Cal. 2004). The California Supreme Court held that San Francisco lacked authority for its actions, and ordered that "all same-sex marriages authorized, solemnized, or registered by the city officials must be considered void and of no legal effect from their inception."Id. at 495.2
Repeating that experience would inflict harm on the affected couples and place administrative burdens on the State.
So a stay in necessary because the Prop 8 proponents are concerned for the emotional welfare of same-sex couples. Right. Much bigger reasons around media attention to couples getting hitched and more.
If you're looking for the short and sweet on what this means, Chris Geidner has an excellent FAQ about what could happen today and what it means.
Joe Sudbay has some useful thoughts on how this impacts the Obama Administration around DOMA. For my $0.02, I think the Administration's position and choice to appeal the Massachusetts DOMA cases, and how they present their arguments, will be very interesting if the decision goes the pro-equality way today. For more coverage on the MA DOMA cases and whether to hope for an appeal, I have a post outlining the legal and strategic theories here.
For old time's sake, here's the epic Boies vs. Blankenhorn cross-examination again (parts 1 and 2). It's a case study in how the pro-Prop 8 side has no case- one of their biggest witnesses essentially makes the pro-equality case for us.
What do you think the three most common words/phrases used by NOM to denounce a pro-equality ruling will be? For my money: "activist judge" "ignored a vote of the people" "shameful". If it goes their way, I say "affirm" "marriage is between one man and one woman" "applaud".
If you're looking where to find your local Decision Day rally (there are already a few dozen planned), Rex Wockner has a rapidly updating list.
The hashtag of note to follow on Twitter will be #Prop8.
American Foundation for Equal Rights will be holding a press conference in San Francisco immediately following the decision. The press conference will be livestreamed, and I will see about hosting the video here. The press conference will be with Olson and Boies, as well as many of the plaintiffs and AFER President Chad Griffin. There will also be a public event in West Hollywood at 6 PM PST.
I will be updating this thread as more info comes in, pre-decision. The decision is expected between 1 PST and 3 PST.
UPDATE (11:20 EST): American Foundation for Equal Rights will be holding a press conference in San Francisco immediately following the decision. The press conference will be live-streamed at their website, but not embeddable, so I'll be live-blogging it at Prop8TrialTracker.com. The press conference will be with Olson and Boies, as well as the plaintiffs and AFER President Chad Griffin. There will also be a public event in West Hollywood at 6 PM PST.
UPDATE (11:48 EST): Over Facebook, NOM's Brian Brown issues a fundraising plea:
In a few hours, we will know how Judge Walker rules in the Prop 8 case. His opinion, and especially his findings of fact - regardless of which way he rules -- will shape the litigation as it moves forward on appeal to the U.S. Court of Appeals for the 9th Circuit.
Many expect this case ultimately to be decided by the United States Supreme Court. In less than two years - before the 2012 elections - we could be facing a Roe v. Wade-like ruling on marriage from the Supreme Court, striking down the marriage laws of 45 states, forcing same-sex marriage on the entire nation.
I can't put it more starkly: This case will decide the future of marriage in the United States. Losing is simply not an option.
We need your help today. If each of us do what we can - whether it's $10 or $10,000 - we will help ensure that marriage receives the strongest possible defense at every stage of this journey. Please visit www.Prop8Case.com to make your most generous gift to the NOM Legal Defense Fund right now. All gifts are tax-deductible.
Thank you. Standing together, we will be victorious.
-Brian
UPDATE (11:55 EST): NOM's Maggie Gallagher has already started lowering expectations (via CNN) (link fixed):
"We have little doubt that this trial judge is going to knock down Prop. 8. I hope I'm proven wrong tomorrow," said Maggie Gallagher, chairman of the National Organization for Marriage. "This has been a judge that looks pretty eager to make a historic decision." She added Walker's ruling will likely have national implications as he is a federal judge.
UPDATE (1:43 EST): Plaintiff attorney Ted Boutrous has written a letter to Judge Walker in response to what he calls the "obviously premature" Motion to Stay the decision. Body of the letter:
Dear Chief Judge Walker:
I write on behalf of Plaintiffs in response to the obviously premature Motion to Stay filed
yesterday by Proponents (Doc #705). As the Court is aware, Proponents' motion requests
that a stay be issued contemporaneously with the judgment. Plaintiffs intend to respond to
the stay motion, if a response is a warranted, as soon as practicable after the Court issues its
Order. If the Court is inclined to consider Proponents' request, Plaintiffs respectfully request
the opportunity to be heard on their motion.
Today, the Proposition 8 trial in San Francisco Federal Court will hear its long-awaited closing arguments - as gay marriage advocates prepare to return to the ballot. And a new study conducted by the Haas Jr. Foundation looks at pre-election polling data from 33 states that passed anti-gay marriage initiatives. It concludes (a) we always do worse than what polls say, and (b) voters don't change their minds about this issue during campaigns. The lesson, of course, is that we must work harder to move hearts and minds - and that work can't be done in a short election season. Sadly, the implications of this study will strike many as discouraging - was all the money, time and energy we spent in California and Maine somehow a waste? It's true gay marriage is a sensitive topic that voters develop hard feelings about that can't be changed overnight. But the study did not focus on the small sliver of "persuadable" voters in each election who decide the outcome.
With the New Jersey State Senate rejecting gay marriage last week, the path to equality is now back in the courts. Lambda Legal has filed suit in the New Jersey Supreme Court, and the odds of success - based upon that state Court's ruling in 2006 - appear favorable. But all eyes this morning are on San Francisco - as District Court Judge Vaughn Walker hears Perry vs. Schwarzenegger, the controversial case to overturn Proposition 8 on federal grounds. For years, civil rights groups had carefully kept the federal courts out of gay marriage fights - and the prominent lawyers in Perry filed the suit without consulting them. But with most of marriage's legal benefits coming under federal law, it was only a matter of time before the federal courts weighed in on this issue. The trouble is that a wiser battle to start with would challenge the Defense of Marriage Act (DOMA) - and in fact, there are such efforts in place. If the federal courts uphold Prop 8, it's not likely to affect New Jersey - but it could hurt efforts to repeal DOMA.
In part one, I wrote about the policy problems with the argument that, in the wake of the loss in Maine and the victory in Washington State, the focus for the LGBT movement should shift to domestic partnerships. In this piece, I want to hit on some political issues.
I don't believe the argument that the movement for marriage equality has failed or is failing. Reasons:
The oft-quoted number, one I've used myself, is that we are 0/31 on statewide marriage votes. I've used that number in the sense that it's a streak we need to break. One colleague used that number as evidence that the strategy for marriage equality isn't working. When you're batting .000, you have to change the strategy, the argument goes.
I would actually argue that only two of these losses were the result of the execution of a strategy. From 2004-2006, something of the dark ages for marriage equality, 24 states adopted constitutional amendments banning same-sex marriage. But during that time, we were playing defense, and not in venues in which we chose to fight under a strategy. They were reactionary moves set off by a court decision in Massachusetts and a unilateral move by Gavin Newsom, and with an assist from George W. Bush, not the failure of some comprehensive state-by-state strategy.
The two I will say were evidence of failure are California and Maine. In CA, we passed it through the legislature twice, it was vetoed twice. A court challenge coordinated by Lambda Legal resulted in a favorable decision. Each of these were executions of strategy that resulted in Prop 8. We lost with 47.53% of the vote. In Maine, the we passed a bill through the legislature, which Gov. Baldacci signed. It went to the ballot, where we lost with 47.18% of the vote. Okay. But both losses were by a field goal, not three touchdowns. We lost by 31,909 votes in Maine. I still believe a better No On 8 campaign could have won in California. In reality, the execution of this strategy has failed on two fronts, not 31. Not evidence to argue a wholesale change in strategy.
I'm not sure yet that domestic partnerships should be our Grand Strategy based on Washington State's success. In 2006, Colorado voters rejected a statewide referendum to authorize domestic partnerships, 47%-53%. In 2009, Washington State voters approved a more comprehensive law, 53%-47%. While it is true domestic partnerships/civil unions have been extended in many other states without a successful move to repeal it on the ballot, there isn't a lot of evidence yet that this is successful at the ballot box itself.
The fretting over the 0/31 statistic has also ignored how we can move on marriage without that streak growing. We fought off a ballot vote several years ago in Massachusetts. Neither Vermont nor Connecticut will have a ballot vote. Nor will New Jersey, if we are successful in the lame-duck session. The same is almost assured in New York and DC. In Iowa and New Hampshire it remains to be seen, but a lot of the 0/31 talk ignores that where we are close, we can continue the work without losing a repeal at the ballot.
The movement for marriage equality has actually led to incrementalist measures in several states as a compromise. And if you start by asking for half a loaf, you are more likely to end up with a quarter loaf, so making domestic partnerships our stated policy goal across the country perhaps isn't wise.
I am concerned that if you push for some type of federal recognition of domestic partnerships, it could be embraced a compromise measure by those squeamish about repealing DOMA, and we are forced to wait even longer before moving on that. In the meantime, what about same-sex married couples in Massachusetts and other states who need full federal benefits? You effectively write in a separate-but-equal status at the federal level.
While it's true that civil rights advances have, in many cases, historically been done in incremental approaches, there isn't evidence yet that we are far, far away from enacting full marriage equality in more states. There may be repeal fights in New Hampshire and Iowa in 2010, which will further test this argument. But as I see it, incremental steps should be taken where necessary, not as a comprehensive strategy for the future. As I wrote in part one, there are too many policy problems that do not actually result in full equality. The movement for marriage equality remains successful in many places, and should continue.
This is a second piece of analysis on what happened in Maine, organizing by the campaign and progressive allies, and where the LGBT movement goes from here. For Part 1, click here.
There is a great deal of soul-searching and strategy questions that have come out in the wake of the loss in Maine on Tuesday. I have some thoughts on them all:
1. The LGBT movement is powerless and handcuffed on marriage referenda. A number of very smart people have argued to me the following: that in California, we had a terrible No On 8 campaign and lost by four points, and in Maine, we had a near-flawless campaign and lost by six. The problem, the argument goes, isn't the execution of campaigns but that we are powerless to win these votes until the elderly, who tend to be far more against marriage equality, die off, and the young open-minded supporters of marriage equality take over.
Not only do I think that's wrong, I think it's a very dangerous assumption. In the first place, I, and many close observers, do believe a better No On 8 campaign could have won the vote. We led by as many as 14 points and 17 points in two different reliable polls as late as September. I don't believe those leads are entirely because of some kind of LGBT-specific version of the Bradley Effect. In the second place, these campaigns aren't hopeless. Although the result was reversed in 2008, don't forget we won a statewide marrage vote in Arizona in 2006- not exactly a bastion of liberal college towns and LGBT people- in fact, considering the retirement population, far from it. A switch of 31,909 votes would have won in Maine. Fixing some of the problems I outlined in my earlier post, many of which are execution issues rather than long-term obstacles, would bring us closer by itself. I look at it the same way I do Obama's campaign- lots of people said an African-American could never win until the demographics change or race relations are improved over a long period of time. In the end, he got far more votes from places many never thought he would. We don't need to wait years to switch 31,909 votes. In the third place, the attitude that the LGBT movement is handcuffed by demographics demobilizes supporters who, now more than ever, need to be mobilized and active.
2. Complaints about tyranny of the majority. Others have rightfully complained that the rights of the minority should never be put to the vote of the majority. I fully agree with this. When I testified last week at the DC Council hearing on our own marriage legislation, I thought one of the best points made was by Councilmember Catania, who pointed out to Bishop Harry Jackson, the local majordomo homophobe, and a black man, that the last time civil rights of a minority was put to a vote in DC was Dec. 21, 1856- the right to vote of African-Americans. He's absolutely right that it shouldn't happen.
My problem with this complaint is that it distracts from the issue, and leads to the same lamenting in the LGBT community that these things are hopeless in the short term because so long as these ballot votes exist, the game is fixed. It discourages participation. Look, that is the world as it should be, and not the world as it is. As Adam Bonin at DailyKos commented to me, the nature of democratic self-governance is such that citizens will always be able to amend their constitutions and laws, for better or for worse. The rules of the game are set and we must play within them.
3. Approaches to showcasing gay couples. There is one very notable difference between the No On 8 campaign and No On 1 that advances our cause. A colleague and friend who was on the ground in Maine and ran a 1995 ballot campaign there, which pertained to restricting the state's ability to enact pro-LGBT measures, said something very interesting to me. In 1995, she said, their campaign- like No On 8's refusal to include gay people in their TV ads- made every effort to hide gay people in their campaign, and that was a big reason why they won. They won, she told me, but they didn't advance the overall opinions and attitudes. Contrast that and the similar approach of the No On 8 campaign with the No On 1 campaign, which had married couples, some with kids, out in front at every turn- in TV ads, on their direct mail, on the website, you name it.
There were two completely different approaches from California and Maine, and both got at least 47% of the vote. But for our movement to advance, it is far better to have No On 1's approach. They proved you don't have to hide gay people like it's 1995. A win in Maine would have been the best thing, but it is a strong second choice to move the ball forward in terms of attitudes.
4. Moving the ball forward in steps. I think there is another victory we are overlooking here. People don't always jump from one end of the spectrum to the other in terms of not being in favor of any "special" rights at all to being supportive of marriage equality. Many people are moved from the anti-equality end to grudgingly (or willingly) being supportive of civil unions, for example. They are the folks you hear saying "just don't call it marriage". It's not a perfect situation, but it's a step forward. I've experienced the same thing on a personal level in terms of family and friends being completely opposed to my sexual orientation, who moved to being "okay, just don't tell your grandparents" to inviting my boyfriend to their home to asking if they can help plan a wedding. This is a process, and not only did we get 260,000 people to vote in favor of full marriage equality, but the conversations we started moved people more than if we didn't. Not only is this important to remember, but it is another point against the "we are handcuffed by old homophobes and the rules of the game, so we're not going to win for a long time" argument.
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We didn't win in Maine, but our chances are not handcuffed. Let's remember what could have been done better, remember the take-away lessons from these recent campaigns, and rededicate ourselves immediately.
Check out this video of AMERICABlog's Joe Sudbay at our Maine fundraiser on Saturday night. Joe's a Maine native, and he just got back from the state this past week. He hits on some of the latest details from on the ground.
The part that really gets me is that last year, while we were winning across-the-board in Congress and Obama won the White House, we lost California. It was a bittersweet victory. When someone at the party asks Joe "why does this matter to the other 49 states", Joe rightly replies, "because we've never won one." He's right. We have to break that streak, and we have to do it in Maine.
I remember in California, a lot of celebrities woke up at the very last minute to the notion that we might lose. They even held this big swanky fundraiser at Ron Burkle's mansion less than two weeks, where Melissa Etheridge got up on stage and offered to play any song for a $50,000 donation. There was an awkward silence for quite some time when no one volunteered. It was kind of sad that it had come to that.
That's why giving before October 15th- the day early in-person voting starts and the campaign finance deadline occurs- is so critical. So the campaign, unlike Prop 8, has the resources it needs when it needs them.
Click helow to chip in and take us across the finish line. We're at just $1,866 on the OpenLeft/Better Dems page. Let's take it well past $2K today.
"Yes on 1" - the Maine campaign to repeal marriage equality - aired its first San Francisco produced ad this week, which was kind of a dud. It was like the first "Yes on 8" ad in California - minus the Gavin Newsom footage. Within 24 hours, the "No on 1" campaign aired a strong rebuttal - in contrast to the 12 days it took "No on 8" to respond. Rather than simply deny the "gay marriage in public schools" charge, the ad accused outsiders of harming kids - and that schools protect "all Maine families," allowing our side to stay on the offensive. With 53 days to go before the election, a new poll today shows Question 1 narrowly ahead by 48-46. Supporters of marriage equality should realize that every effort will make a difference - and that we now have an opportunity to finally defeat anti-gay bigotry at the ballot box.
In just 77 days, Maine voters can set the national agenda for marriage equality. The state legislature passed same-sex marriage earlier this year, but now the right has collected enough signatures to put a referendum ("Question One") on the November 2009 ballot - and has hired the same political consultants who successfully passed Proposition 8. Supporters of marriage equality, however, are determined not to repeat the same mistakes we made in California - and will run an inclusive field campaign with a pro-active and pre-emptive message that (with the right resources) can bring about victory. It does not cost a lot to win campaigns in Maine (only $3 million), and voter turnout is expected to only be about 500,000 people. In other words, the campaign is winnable - but has not yet received the national attention it deserves. While Californians are divided on whether to repeal Prop 8 in 2010 or 2012, they can set aside their differences by helping us win in Maine. If we prevail on November 3rd, it will be easier to take our rights back in California.
In 1964, Stanley Kubrick produced the Cold War film Dr. Strangelove, or "How I Learned to Stop Worrying and Love the Bomb." By upholding Proposition 8, the California Supreme Court has learned to stop worrying and love the initiative process. It's an apt analogy, because today's decision leaves an unchecked power of the voters to strike a "bomb" through our basic Constitutional protections. Not only did the Court minimize Prop 8's effect on the right to marry, using logic that contradicted last year's decision on the same subject. It set up a dubious distinction between "amendments" and "revisions" to the state Constitution, which will allow virtually any ballot measure to pass as a mere "amendment." Without adequate safeguards that a "revision" was meant to place, equal protection is no longer sacred - because the power of the ballot is supreme. At the same time, the Court ruled that the 18,000 same-sex couples who legally wed last year are still married - because to invalidate these licenses would be an undue violation of due process and property rights. While that was a wise decision, it remains a mystery why such a right is more important than equal protection.
It's depressing to think - after having just lost an expensive and exhausting campaign - that repealing Proposition 8 could mean going back to the ballot. It is unfair and unjust that a slim majority of California voters took a fundamental right away from a minority, jeopardizing equal protection. But the state Supreme Court heard oral arguments on the City Attorney's lawsuit yesterday, and the signs were very discouraging. Justice Joyce Kennard (who last year voted to grant marriage equality) was hostile to the case against Prop 8, and Chief Justice Ron George was skeptical. Not that there isn't any hope: perhaps the extreme arguments made by Prop 8 lawyer Kenneth Starr will inadvertently sway the Court into recognizing the measure's dangerous effects. But no one should expect the Court to repeal Prop 8. Activists must get ready for a 2010 proposition campaign as the next available remedy, however deficient a political solution that would be. We must learn from the colossal mistakes of the past campaign, and a new generation of activists will make it happen.
I've been asked many times since November 4th what Drinking Liberally does now...as though a Democratic President would negate the need for a national network of progressive social gatherings. I respond that political communities -- and the activism and ideas that flow from them -- don't come and go with campaigns...they are needed between elections just as much.
But it's one thing to say that -- it's another to actually live it. And honestly, many of our chapters are in a little bit of a post-election hangover / holiday daze. We continue to meet, enjoy holidays and plan for the Inauguration, but it feels a little bit like we're waiting for our next moment.
However, one movement that isn't waiting is the marriage equality movement. Obviously Prop 8 served as a jolt that required the movement not to rest -- but at a time when I don't witness as much direct activism taking place, folks like Join the Impact are delivering creative, social, passionate opportunities -- from national rallies to vigils to guerilla activism.
In New York, we're hosting a screening tonight of the Oscar-winning documentary Freeheld. Its story -- about a dying police officer whose same-sex partner is denied pension rights -- resonates with the the chilling results of Prop 8. We're using it to prompt a conversation about how New Yorkers can promote the marriage equality fight in our state, which has a chance of passing it legislatively.
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