California high court upholds same-sex marriage ban

[TotallyOz]

What a true shame that the court allowed this to stand. I think we all knew it would be the final decision given they had requested security and protection once the verdict was reached. But, the decision was not even close. What is the next step for California?

http://edition.cnn.com/2009/US/05/26/calif...iage/index.html

[stevenkesslar]

What a true shame that the court allowed this to stand. I think we all knew it would be the final decision given they had requested security and protection once the verdict was reached. But, the decision was not even close. What is the next step for California?

http://edition.cnn.com/2009/US/05/26/calif...iage/index.html

I just got back from the Supreme Court building, and people are pissed, but not surprised. Some of us are recruiting volunteers to go door to door and start a massive voter education campaign, since this is definitely headed back to the ballot, and others are getting arrested as I write this because they are into the civil disobedience thing. It takes all kinds...gotta love democracy.

There will be a lot of legal hair splitting. The Supreme Court, as expected, upheld the 18,000 same sex "marraiges," and decided that same sex couples have all the same rights as last year, except the word "marraige" can not be used to describe their relationship. So now we apparently will have same sex "things" in California, or whatever they are supposed to be called, which are legally the same as straight "marraiges," except they are not married. Am I the only one that finds that confusing, not to mention insulting?

Legally, it creates a confusing mess, but it does guarantee that the next ballot fight will be focused on marraige equality, not a recall of pro-gay judges. Honestly, I kind of applaud their political savvy. These judges were mostly appointed by Republicans, and they committed the travesty of opening the door to gay marraige, which influenced the Iowa court's decision, and by all appearances they figured out a way to do that did without committing political suicide.

In addition to the judges themselves, here's my own take on the other two big winners.

Winner Number 1 is...............IOWA! In fact, protestors were chanting "Iowa" when they learned about the court's decision. First Iowa gave us whites for Obama, and now they give us farmers for gay rights. What's next? Ultimately, this is going to be a federal issue, even if it is being fought state by state. I have a client in Iowa who is a devoted political centrist, and he loves to tease me about all the political looniness that comes out of California, which is supposedly the nation's trendsetter. So in the long run, it might be a good thing that heartland states like Iowa and Maine are taking the lead in what is really a battle for the hearts and minds of middle Americans.

Winner Number 2 is ............. GAYS! There are some big silver linings in this cloud. First, the Court didn't take any actual rights away, they just upheld what the voters did, which is take away the word "marraige." So no one is suddenly a lot worse off. Second, their decision definitely won't be perceived that way. It will be perceived as an attack on gays, and equality, which is should be. It will force gays and lesbians to organize in a way that would not have happened if the Court threw out Prop 8. Lots of people have complaints about the way the No on 8 campaign was run last Fall, but the fact is we almost won on an issue that has never been won at the ballot box. Ultimately, the only way to make sure we get to keep our rights, and we are treated equally, is to convince the voters of that. And the groundwork for that is being laid, and has been for months. Organizers are being hired, volunteers are being recruited, and precints and parts of the state that were ignored last time around, arguably because there wasn't enough time, are now going to get a lot of attention. There were lessons to be learned from last year's defeat, and we seem to be learning them. It took Harvey Milk three times to win. Hopefully, we'll do it in two.

I don't like losing, and to me the biggest danger is always complacency. If the Court threw out Prop 8, there would have been a huge backlash, and we would have been portrayed as being against democracy, and many people would have just assumed, like they did last Fall, that it was all going to be okay, because after all, this is CALIFORNIA!!!!!! This is exactly the kind of slap in the face that will prevent anyone from being delusional, or complacent. Some people will be out in the streets protesting, and hopefully many will be out on the blocks canvassing voters, or on the phones calling voters, but all in all its the most vibrant and interesting political environment the gay community has seen in a long time.

If there is a loser, it is going to be organized religion. Last year, the Catholic Church pretty much snuck up from behind. (Maybe those of us who are used to taking it from behind just weren't on guard enough). :-) The Mormon Church got a long of deserved attention, but the Archbishop of San Francisco was the one that recruited them. Next time, that won't be so easy.

I was interviewed by one of the TV stations because I was getting people to sign up as volunteers, and I said something about this being like the "civil rights" movement, and the cameraman, who was black, came up to me privately afterward and told me that a lot of black people don't like having our struggle compared to the "civil rights" movement, especially black churchgoers. So I described the various political campaigns for black elected officials I had volunteered on, and told him that I saw all of this as part of the same struggle for equality, and asked him what words he thought we should use, if not "civil rights." His response was dead right: "I wish I could tell you, but there definitely needs to be a conversation."

As far as the African American church goes, that conversation has already started, and my guess is it will go relatively well. I don't think most black people have a deep emotional commitment to hypocrisy, let alone hate, and they certainly have an experience with a struggle for freedom that we can connect ours to, if we take the time to do so.

The Catholic church, which is my own background, is gonna be a whole different story. They are in for a very rocky ride. The success of the Catholic church in America absolutely depends on deep, multiple layers of hypocrisy. I have had priests who are clients. I have had priests who are fuck buddies. My best guess is 1 out of 3 priests are gay. The instituition can not survive without gays, who officiate many of their Masses, and yet it is completely ideologically committed to attacking gays. Its even against rubbers! Even if we are polite, and don't start outting gay priests (who in my experience at least have the sense to use rubbers, despite what the Pope says), something has gotta give, and I don't see how the Catholic church is gonna square their rhetoric around it. Either Jesus is about love, or he is about discrimination. It will be fun to call that question, and watch the nelly priests squirm, or the old priests drone on about "sin."

So save your money for the gay rights struggles that are on the way, whether it is defending the Court's decision in Iowa, or going back to the ballot in California, or whatever else is happening in the other states. And save your prayers, if you like to pray, for the sad and sorry Catholics that are headed into a moral and political buzzsaw. After their last big public relations disaster, which was presenting themselves to the nation as pedophiles, its really the last thing they need.

And for the 18,000 California couples who fell in love and got married and get to stay married.....GOD BLESS YOU!

[MsGuy]

Steven's reaction to Prop. 8 is everything this old gray headed gay could ask for. Our culture war with the religious right isn't about gay marriage or military service or any other particular issue. It's about normalizing gay participation in America's civic forum on an equal basis with straights. We will not and can not win that war in the law courts. We can and will win by changing the preconceptions of our fellow citizens in the court of public opinion.

I'm not trying to make some clever verbal argument when I say that the Prop. 8 campaign was a phyrric victory for social conservatives. Think not? Who could have predicted even 10 years ago that in 2008 gays would fight the bigots to a virtual tie in a public referendum on gay marriage in the most populus state in the union. What did the conservatives get out of Prop. 8? They got a temporary ban on gay marriages in California at the price of demonstrating the fragility of their hold on the electorate and giving gays an ideal platform to carry a massive educational campaign to the public on gay rights. And what does the future hold for them? They face an ongoing grassroots campaign that they already know that they can't win, that in the end they can only lose.

In public the bigots are putting a brave face on their situation, but their leadership is neither stupid nor naive. They know that they pulled all the stops on the Prop. 8 campaign and won by a margin of 52 to 48. Switch one voter in forty and Prop. 8 would have been defeated. Their leaders also know that the ongoing public debate on gay marriage only serves to erode their power to define gays as less than full citizens generally.

We all owe Steven and all the guys like him our thanks and our support.

[Guest StuCotts]

Every good wish for success to all involved in the effort to make same-sex mariage legal in California.

I can't help thinking that none of this strenuous work would be necessary if California's gays hadn't been so complacent as to allow the ban to be voted in to begin with. The friends I spoke to in advance took the worry-free attitude that the proposition was sure to be vote down.

[TownsendPLocke]

Very well put Steven.

I disagree with You and Ms.Guy on winning at the voting booth rather than in the courts however.I think it will have to go back to the courts one way or the other.

Unfortunately now,because discrimination has been added to the state constitution,it will be an uphill battle to get this odious,and IMO UNCONSTITUTIONAL, admendment removed.

I see this going on to the US supreme court in due time.

I also find it strange that none of the conservatives who normally rail against"advocate judges legislating from the bench"are not upset abot this.I guess when their ruling promote prejudice that is "different"and they are ok with it.

[TampaYankee]

Very well put Steven.

I disagree with You and Ms.Guy on winning at the voting booth rather than in the courts however.I think it will have to go back to the courts one way or the other.

Unfortunately now,because discrimination has been added to the state constitution,it will be an uphill battle to get this odious,and IMO UNCONSTITUTIONAL, admendment removed.

I see this going on to the US supreme court in due time.

I also find it strange that none of the conservatives who normally rail against"advocate judges legislating from the bench"are not upset abot this.I guess when their ruling promote prejudice that is "different"and they are ok with it.

I would have been astonished if the Court had ruled any differently. Quite simply, it made the only decision it could. That includes upholding the validity of the 18000 marriages.

I don't support the purpose of the ammendment and I think that California is most unwise in permitting a simple majority rather than a supermajority to ammend the state constitution. However, that is their State Law. The electorate should have some reasonable mechanism for ammending the consitution as long as there are some reasonable safe guards for minority rights -- hence a supermajority requirement.

It is a sad day when a state enshrines in it's constitution second class citizenship for a minority group. IMO a state, any state, shows little forethought for and reverence of its foundation fabric to allow it to be modified by a simple majority. Passions of the electorate run hot and cold. Simple majorities can swing back and forth on a dime. Constitutions should be rooted in enduring principles that enjoy broad support of the electorate unlikely to turn on a dime.

Ultimately, I believe that Prop 8 will be stricken down by the SCOTUS on the basis of Brown vs Board of Education Topeka KS which struck down Plessy vs Ferguson. I don't know when this will happen but I'm confident it will happen eventually. That is unless a sense of shame overtakes the California electorate causing them to restore equal rights to their secondary class of citizens.

[stevenkesslar]

Very well put Steven.

I disagree with You and Ms.Guy on winning at the voting booth rather than in the courts however.I think it will have to go back to the courts one way or the other.

Unfortunately now,because discrimination has been added to the state constitution,it will be an uphill battle to get this odious,and IMO UNCONSTITUTIONAL, admendment removed.

I see this going on to the US supreme court in due time.

I also find it strange that none of the conservatives who normally rail against"advocate judges legislating from the bench"are not upset abot this.I guess when their ruling promote prejudice that is "different"and they are ok with it.

I didn't say or mean to imply that we shouldn't try to win these fights in courts. We should. I love gay lawyers.

My point, which the last year makes obvious, is that we can't count completely on the Courts, either because they may not support us anyway, and even if they do the voters may be able to override them. I wish California's constitution was more like Iowa's, in terms of protecting minorities like us and making it difficult to enshrine discrimination in a constitution. We should use whatever tactics work, and usually that means a combination of working the courts, the legislature, and the street. By the time we get finished in California, we'll probably have won and lost gay marraige half a dozen times in one venue or another.

I hope this does NOT go the Supreme Court anytime soon. My worst fear is that there is a majority on the current US Court that could vote to take marraige away. At some point it may look like the last refuge of the right wing religious zealots. Hopefully a lot of states will enact gay marraige and the conservatives on the court will be constricted by their own state's rights rhetoric. Eventually a different court may finalize the contract, much as they did on civil rights, but that is a long way off.

And I don't think that what the Court did puts us in a bad position. Quite the opposite. One way or the other, everyone knew this was going back to the ballot, whatever the Court decided to do. The fact that we lost, I think, helkps us in two ways. Most important, there is not an ounce of complacency in California anymore. I spent most of the day yesterday shoving a clipboard in people's hand and telling them to sign (I'm used to shoving things inside people and telling them what to do with it, but usually not this way). I don't think I have ever had such an easy time recruiting volunteers. Last Summer, as StuCotts said, there was this smug sense of inevitability that we were going to win, because the polls said so. Now, the sense out there is that it is inevitable that we have to organize and fight hard to win this thing, and we may have to win it several times.

The other gift the Court gave us was shame. It is possible to overwork it, but a lot will be said in the next year about how shamelful it is that we're the state that voted to make discrimination legal and constitutional. And on an even simpler level, we're the state that voted against love and loving people. Who really wants to own that? I'm sure the right will work their "protect marraige" bullshit to death, and we will have to be thoughtful about how we convince swing voters that we are somehow not out to get them or their children. But I think that is better than having to play defense, like we did last year. There would have been a furor about pro-gay judges that helped a political extremists derail democracy, which is exactly the way they are trying to paint Obama as well. Now we get to go on the offense and craft messages that present us as a normal part of society that just wants the same things and the same rights as everybody else. We got 48 percent last time, and even without doing anything different, demography will get us to 50 soon anyway. But its already obvious that a lot of things will be done different next time. This is very winnable.

Honestly, I really have to hand it to the judges here, who are almost all Republican. They did something incredibly activist, and got away with it. Had they thrown out Prop 8, they would have faced an immediate recall election, which would have created a huge distraction about the anti-democratic tendencies of gays (which would have been made to sound even worse than our sexual tendencies.) I wish we would have defeated Prop 8 last fall, but given the fact that we lost, I think this could hardly have played out better. By legalizing gay marraige, which the Republican Court did not have to do, they opened the door wide. Their decision directly contributed to the Iowa decision. It created momentum that was going our way. I don't think what happened yesterday stopped that. What happened yesetrday will be felt as a huge slap in the face, and in slapping us down I think they set up a really good fight. They are being derided as "spineless" and "prejudiced." My favorite line about organizing is Alinsky's - "the action is in the reaction." they gave us a whole lot to react to, and we will be doing that, hopefully wisely, for a very long time.

[MsGuy]

Although Romer v. Evans, the 1996 anti-gay amendment case, maps over to the California situation almost point by point, I hope the question of gay marriage doesn't reach the U.S. Supreme Court until at least one of the conservative justices has been replaced. There is way too much riding on this one to bet the farm on one decision. An adverse ruling could freeze the law for a generation and simultaneously cripple state and local efforts. Why take that risk when we can win this state by state? There's all the difference in the world between losing in a state court and losing in SCOTUS.

The NAACP's 35 year long legal campaign that led to Brown v. Board of Education was the result of a concious decision by its legal arm to avoid directly challenging Plessy v. Ferguson until the necessary legal and social/political groundwork had been done. Let's not fuck this up by trying to short circuit the process. Wouldn't we be better off to wait until 15 or 20 states have acted before asking SCOTUS to make a final decision?

P.S. Steven: Who knew anybody still read Saul Alinsky?

[MsGuy]

Here's a fair article on the Federal lawsuit, with some pro & con discussion. I think it skimps a little on the dangers of seeking Federal relief right now. Note the ACLU and several gay legal groups oppose this suit.

http://www.cnn.com/2009/POLITICS/05/27/sam...ref=mpstoryview