Before I delve into this, I'd like to say that while I'm an attorney, I am by no means an expert in discovery. However, I'll try to explain it as best I can.
To start, discovery runs on good faith backed by a big old stick. The normal process is for each side to ask questions ("interrogatories") and respond to the opposing counsel's questions with responses, and eventually documents. Document review is typically the domain of first year lawyers, who get to spend hours upon hours hunting for the smoking gun amidst heaps and heaps of meaningless paper. In fact, one discovery strategy is to bury the opposing counsel in so much paper that the good stuff remains hidden. A judge can control this sort of gamesmanship if it gets out of hand.
Now, in this particular case, the defendant-intervenors asked for a bunch of documents from the No on 8 Coalition. It was a similar request as the Yes on 8, protectmarriage.com, organization had received. Eventually, Judge Walker's order was slightly limited to exclude completely internal documents within a "core group" of campaign insiders. But, they ended up turning over a bunch of useful documents, which I won't go through now. But, go back over the old posts from the trial, and you'll stumble across them.
In return, the Yes on 8 asked for similar documents. Now, at first blush, you'd think, well, fair's fair. But, not really though. The only actions in question here are the actions of the Yes on 8 team and whether the campaign was seeking to deny equal protection of the law. On the flip side, the No on 8 coalition clearly had no such motives, and the constitutionality was never in question.
The relevant rules here are the Federal Rules of Civil Procedure, particularly Rule 26, which states, in part:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense - including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
The key part of this is relevancy. There are a number of different standards for relevancy, but they are all generally lenient, or at least far more lenient that standards for evidence at trial. That being said, even by these more lenient standards, this is a big reach. And frankly, all of the parties know that, but the Yes on 8 team is trying its best to get as much information as possible for future campaigns. Sure, they won't say that, but that's what is going on here. But, to the issue at trial, I'll let Judge Walker sum it up:
This objection has three parts: first, that the magistrate applied the FRCP 26 relevance standard when a more searching standard was appropriate; second, that the subpoenas do not seek relevant documents under any standard of relevance; and third, that the magistrate failed to weigh the marginal relevance of the documents against the heavy burden production of the documents would impose.
Under the FRCP 26, the court, in this case Magistrate Spero, is to weigh the burden of disclosing the documents against the relevancy of the documents to the case at hand. After all, we don't want our courts to just be a big fishing pond, be it for corporations, individual litigants, or for campaigns, as we have in this case. These issues are all somewhat subjective, that is the judge has to look at evidence and weigh relative merits. Unlike what Justice Roberts would have you believe, this isn't about balls and strikes, it's more like judging a boxing match. Each side has relative merits, and the judge has to use his legal training and experience to end up with the best result.
Now, on the Yes on 8 side, the 9th Circuit ruled that Judge Walker allowed too broad of discovery, a loss for our side. However, the ACLU and EQCA argue that Judge Walker once again allowed for too broad of discovery. This time focusing on relevancy rather than any notion of privilege of free communication within a campaign. The importance of this distinction is critical. There is a bright line for why the Yes on 8 materials were discoverable. However, if the ACLU and EQCA documents are discoverable, any body associated with a campaign that is involved in litigation is discoverable. As Geoff Kors of EQCA points out, that is simply not something that we can allow to go unchallenged:
"Protect Marriage has not subpoenaed Equality for All, the organization that led the No on 8 campaign. Instead, it singled out two allied civil rights organizations that are not parties to the case to intimidate and dissuade all LGBT organizations and our allies from participating in future campaigns to defeat anti-LGBT measures. We want nothing more than for this case to proceed as quickly as possible. But if this ruling is allowed to stand it will set a harmful precedent that will have a chilling effect on all non-profits working in coalitions on social justice issues. They will fear harassment and the threat of being forced to spend precious, limited resources on responding to costly litigation and subpoenas rather than to do the critical work at hand."
I know people are anxious for some resolution on this case, but folks, it's going to be a while. There are still a lot of appeals to go; it's likely to be years before we see a resolution. Even if Judge Walker overturns Prop 8, he's likely to put a stay pending appeal. That's why it is critical that we not take our eyes off the ball, which is the ballot box. In my mind, Prop 8 is clearly unconstitutional for several reasons. That being said, sometimes you have to fight when you shouldn't have to. It's not right, but it's the way it is. We'll win both in the legal arena and the ballot box.
Today, Love Honor Cherish, the leader of the Repeal Prop 8 2010 organization sent out a press release announcing that they had failed to get enough signatures on the ballot. (The full release is available in the full post.)
Love Honor Cherish, which spearheaded an effort to place an initiative on the November 2010 ballot to repeal Proposition 8 and restore equal marriage rights for same-sex couples, announced today that the proponents did not gather the 694,354 signatures necessary to place the proposed initiative on the ballot. The group vowed to work toward the repeal of Prop 8 at the next general election in November 2012.
"This is a heartbreaking moment," said John Henning, Executive Director of Love Honor Cherish. "Despite the dogged efforts of hundreds of volunteers across California, we did not get the signatures we needed within the 150-day window set by the state."
Under California law, it is too late to mount a new effort to repeal Prop 8 in 2010. "Regrettably, Prop 8 will remain as a stain on our constitution until at least 2012, and perhaps later," said Henning. He challenged activists statewide to rededicate themselves and unify behind a 2012 repeal effort.
While this isn't a surprise, it does end a trying divide within the LGBT community. I do not speak for the courage campaign or anybody other than myself here, but generally, I'm inclined to believe gubernatorial elections have a better electorate for our side. That is 2010 would have been better than 2008, and 2014 will be better than 2012. During off year elections, you get better educated electorates, and that correlates fairly well with those who aren't really bothered by marriage equality. I have done some analysis looking at that, but also have spoken to a few huge voter number nerds who agree with that hypothesis. It's still an open question, however.
That being said, time matters as well, probably even more than presidential or gubernatorial year. As more millenials spill into the voting ranks, more pro-equality votes are stacking up on our side. While 2 years won't make a huge difference, many number nerds think it is just under 2 percent per year that the electorate moves toward equality. Obviously, that's far from a precise number, but 4 percent would be enough to flip the Prop 8 vote around.
That being said, this time we would be running a Yes campaign, which is always more challenging. Given this news and the rumblings coming out of major LGBT organizations, it looks we are headed like a laser beam towards a 2012 confrontation for our marriage rights.
It's a shame that Prop 8 still stands, and it is my sincere hope that Judge Walker and the federal courts strike it down. However, I am very cognizant of the fact that we are likely headed to the ballot. Get your door-knocking shoes all polished up, we have work to do.
But, they are now back in California! Huzzah! And as you can see from the ad to the right, they're still up to their old fear-based campaigning methods. While Californians understand that there is a difference between Senator Boxer and Tom Campbell, NOM is trying to tie the two together as some sort of hippie love twins of John Maynard Keynes and Divine.
I would write up some witty commentary about the inanity of this ad, but a comment on the YouTube video pretty well sums it up:
Maggie Gallagher drinks water.
Joseph Stalin drank water!
Maggie Gallagher walks on two feet.
Adolph Hitler walked on two feet!
Maggie Gallagher wears black.
Darth Vader wore black!
Thanks, NOM, for the sophisticated political commentary.
To put in a more sophisticated way, you could pull a slew of policy areas where Boxer and Campbell disagree. Point to real climate change action, stimulating the economy, and getting people back to work, and Boxer has the advantage. But, NOM is simply afraid.
NOM is terrified that the Republicans will give up their hard-hearted and hardened positions on marriage equality in favor of a big tent approach that would welcome those who support marriage equality. They understand that when that happens, eventually those who support equality will ensure complete control of all branches of government. If Republicans are not dogmatic, the rapidly shrinking anti-equality movement will lose its public face in the political sphere. They need the dogma to persist, so they wrap their message in one of general conservatism, completely forgetting that real conservatives (small "c") prefer the government not making decisions such as who they can and cannot marry.
While the Right is afraid of Campbell, there is plenty of reason for us to be as well. While he takes a few socially libertarian positions, he is generally very right-wing on economic issues. He opposed most of the stimulus, which even the American Enterprise Institute has now said was successful at reducing the unemployment explosion. He opposes real environmental protections.
Senator Boxer has been working for every Californian for every day of her term, and will continue to do so for as long as she remains in the Senate.
That Sen. Roy Ashburn was a closet case was one of the worst kept secrets around Sacramento. He would periodically appear in a gay bar, trying to be as discreet as a state senator can be in Sacramento. He's not exactly a rock star or anything, but in a city built around state government, he's pretty recognizable.
And so, on 2 occasions, somebody sent me an email saying that they had seen him at a gay bar. It had become more common over the last few years, as he was heading for his term limit and had no logical place to continue his political career. And, with his vote in support of a few minor tax increases in the California budget dispute last year, his chances of winning a Republican primary for dog catcher were also rapidly decreasing. Apparently, he became sloppy in his closet, either because he didn't care anymore or because he thought he would never be caught. But, I'm no Mike Rogers, and I've never been all that great at the CYA work that's necessary if you are going to start publishing that kind of stuff.
But, one sure way to get your name in lights? Get busted for DUI. And to make sure it is really exciting, bring along a guy that you picked up at the gay bar:
Sources tell CBS13 a state senator from Southern California was arrested for allegedly driving drunk after leaving Faces, a gay nightclub in midtown Sacramento, early Wednesday morning.
The California Highway Patrol pulled over Senator Roy Ashburn at 2:00 a.m. Wednesday after an officer noticed a black Chevy Tahoe swerving at 13th and L Streets.
When the officer stopped the state-issued vehicle, the driver identified himself as Senator Ashburn. He was arrested without incident and charged with two misdemeanors: driving under the influence and driving with a blood alcohol level higher than .08% or higher.
A male passenger, who was not identified as a lawmaker, was also in the car but was not detained. (CBS13)
Ashburn was quickly released (you can get the records by searching for Ashburn here), and probably thought he would just get to make the standard apologies.
I am deeply sorry for my actions and offer no excuse for my poor judgment. I accept complete responsibility for my conduct and am prepared to accept the consequences for what I did. I am also truly sorry for the impact this incident will have on those who support and trust me - my family, my constituents, my friends, and my colleagues in the Senate.
Of course, this was before the part about the gay club came out in the media. I guess you can now read the statement in a slightly different light.
If people choose to live in the closet, it's their own poor choice. It will eventually drive them to do stupid things (like a DUI), and act like a jerk. But Ashburn is a slightly different case. Back when he still had campaigns to think about, he was something of an anti-marriage crusader:
In better days Ashburn, a fierce opponent of gay rights, was fighting marriage equality and organizing anti-gay marriage rallies as part of his "Traditional Family Values" campaign. (TalkingPointsMemo)
In fact, Ashburn's efforts weren't only focused on marriage equality. His little coalition actually wanted to ban domestic partnerships. The effort never really got anywhere; it wasn't until In re Marriage Cases, the case that gave California marriage equality, became more of a threat that the move to ban marriage again really gained steam.
But Ashburn was there. Campaigning against gay rights in the day light while cruising for gay men after hours. You could make a lot of excuses for Ashburn, he was doing what you have to do to get elected in Bakersfield, or some other such nonsense, but he went out of his way to attack gay rights. And, that is often the case for these closet cases. They want to draw attention away from themselves, and so they go as far away politically as you can get from the LGBT community. They are scared of their own shadows.
Ultimately, it takes a little something extra to really go out on the limb against gay rights like Ashburn does. Yeah, some of these people trace it back to their deeply held faith views, but there are so many issues to take up from the Bible. The extreme poverty across the world would seem to be a far bigger issue, with far more and far more direct advice from the Bible. Yet, these people choose to focus on one misinterpreted section of Leviticus amongst a whole volume. In a sea of advice, commandments, and admonishments, they focus on one unclear passage. To spend so much time on one issue, there has to be something else to it than just one passage in the Bible.
The fight against homophobia won't end anytime soon, but at least we can call it for what it is. Recognize those who are hypocritical, and stand up for our own rights. The fight will continue. But, as Martin Luther King, Jr, famously said, the arc of the moral universe is long, but it bends toward justice.
This is crossposted from the Prop 8 Trial Tracker. Today should be the last day of testimony, with the closing arguments coming in a couple of weeks as to let Judge Walker digest the evidence a bit. You can get a whole slew of information about the trial at the Prop 8 Trial Tracker.
Well, this should be the last day of testimony, and the defense's case is looking pretty shabby so far. Unless Blankenhorn's redirect is simply amazing, he's also going to be a net loss for their side. But don't worry, Pugno can tell you how it really is:
The afternoon brought the testimony of our second witness, David Blankenhorn, president of the Institute for American Values, who provided his expertise on the institution of marriage, fatherhood and the family structure. He rejected the suggestion by plaintiffs that marriage is purely a private construct between two adults. Rather, he explained, marriage between a man and woman is a globally recognized and historically public institution. In fact, it is the only social relationship with a "biological foundation" found in the complementary nature of man and woman and their ability to procreate. Across all cultures and times, no other human relationship has been more closely connected to the ultimate goal of uniting the biological, social and legal dimensions of parenthood for the raising of children.
You'll be shocked (shocked!) to know that Pugno doesn't mention Blankenhorn's cross examination where he goes on to say that "We would be more American on the day we permit same-sex marriage than the day before." Pugno argues that their definition is the correct definition, the only definition. But Ted Olson puts the lie to that:
This is the game that they're playing. They define marriage as a man and a woman. They call that the institution of marriage. So if you let a man marry a man and a woman marry a woman, it would de-institutionalize marriage. That is the same as saying you are deinstitutionalizing the right to vote when you let women have it. It's a game. It's a tautology. They're saying, 'this is the definition. You're going to change the definition by allowing people access that don't have it now, and that would change it so that people who currently have access won't want it any more because it's changed.' This is all nonsense. They are not proving that. This is a syllogism that falls apart. The major premise, minor premise and conclusion are empty.
Pugno responds that voting didn't really change when women were allowed to vote. History might disagree. The effects of women voting were pronounced and dramatic. The world, and this country specifically, would be a very different place without universal suffrage. But even if we take Pugno's point on its surface, that the definition of marriage would be changed, it doesn't take much more than a few google searches or a little time with a history book or two to realize that the concept of marriage is and has been a hodgepodge across the nations. Pugno's definition, while perhaps true for him, needn't be given more weight than the definition which excluded miscegenation or the definition of marriage that viewed women as property.
Marriage itself began as a way for human, who were living in caves at the time, to be sure of paternity. In some societies, it became a virtual indentured servitude to the husband. For example, a simple Wikipedia search for marriage will net you several different definitions. The Comanches and Ancient Greeks used marriage to subjugate, the medieval Europeans saw love as antithetical to marriage, and used it as a means of sealing political bonds. In fact, early Christian rulers almost always forced their daughters and siblings into marriages for their games of political chess. The fact behind all this ranting is that you can only use tautology for so long. Eventually, you need some real facts. And throughout this entire case, all we've seen is more empty vessels. Even NPR remarked today that Blankenhorn was the fifth defense expert who ended up giving testimony that favored the plaintiffs.
Today, the dust should settle on the testimony, and the judge will move on to consider the evidence before him. We should get a date for closing arguments soon, but we will definitely keep you posted.
As the Prop 8 trial continues, I'll be doing some blogging over at the Courage Campaign's Prop 8 Trial Tracker. Check it out as the trial proceeds: http://prop8trialtracker.com/
LOS ANGELES, CA - The Courage Campaign today called for more research and time to change hearts and minds before returning to the ballot to restore marriage for gay and lesbian couples in California. At least one initiative to restore same-sex marriage is currently circulating that, if it qualifies, would appear on the November, 2010 ballot...
"For months, we have laid out the criteria for moving forward. Like the Obama Campaign, we understand that we need a combination of powerful and clear research that informs an expertly run campaign, an unstoppable movement that harnesses the new energy we have seen since the passage of Prop. 8 and the connections through personal stories and outreach in order to win at the ballot box," said Rick Jacobs, the Courage Campaign founder and Chair. "We are taking the lessons learned from last year's Prop. 8 campaign, the campaigns in Maine and other states to understand the fundamental work that must be done before moving forward in California. We also must come together as a community to create a broad coalition and governance structure, put in place a strong manager and secure the resources to win. Right now, the pieces are not all in place to do so confidently."
I am understanding this to mean that the Courage Campaign is no longer on board with a 2010 campaign and will be shifting their resources to a 2012 effort (although the language is oddly vague-- if any Courage Campaign people are reading this, any clarification would be appreciated greatly). At a minimum the clear message of this release is that Courage Campaign does not at this time support the specific 2010 ballot filing by Love Honor Cherish, which they reference in the first paragraph.
Courage Campaign is currently soliciting volunteers for their Prop. 8 repeal and "Equality Team" efforts here. EQCA is also soliciting volunteers to canvass for their 2012 repeal campaign here.
Gathering signatures for any initiative is a challenge, make it a constitutional amendment with the added number of signatures, and it is even harder. To assure qualification, you'll need at least a million signatures, probably close to 1.2 million, as you will have a fairly substantial rate of invalid signatures. Pointing that out isn't meant to be a dash a cold water, but an idea of the size of the challenge in front of Love Honor Cherish. LHC is now gathering signatures to repeal Prop 8. From a LHC press release:
SignForEquality.com today launched a groundbreaking effort to gather signatures to repeal Proposition 8 and restore equal marriage rights for same-sex couples, marking the first time that social networking technology has been used to qualify a California initiative for the ballot.
"We're taking names," said John Henning, who is heading the SignForEquality.com effort as Executive Director of Love Honor Cherish. "SignForEquality.com will make history by using custom social networking tools, as well as YouTube, Facebook and Twitter, to support an all-volunteer signature drive to repeal Prop 8. People throughout California can now help us win marriage back by the simple act of signing and collecting signatures."
For historical context, the last time a measure has qualified with a completely volunteer signature gathering force was 1984, 25 years and hundreds of initiatives ago. However, if there were ever motivated volunteers, this is the cause, and this is the time. Good luck to LHC and their supporters as they attempt to put the repeal measure on the ballot.
If you are interested in helping out, go to SignForEquality.com for more information.
You'll find the text of the measure over the flip.
Here we are a year later and where do we find ourselves in the fight for marriage equality in California? Two major camps debating on whether to return to the ballot in 2010 or 2012 and we have to ask ourselves the question, "Have we learned from our mistakes?" Are egos and attitudes being altered in order for power to be shared and different voices heard? Has a clear strategy been created and presented? And what about our motivation - are we still angry and humiliated from our loss a year ago that we are planning to return to the polls with revenge?
While Rev. Stringfellow suggests some answers, he more importantly calls on us to self-evaluate. We are asking voters and society to recognize the dignity of LGBT people, but are we recognizing the value and dignity of those different from us? Of those who live on the East side, over the bridge or in the middle? Of those with whom we disagree about 2010 or 2012? Even of those who do not yet recognize our inherent human dignity as LGBT people?
We politicos are strategic thinkers and implementers who focus much of our energy on winning campaigns, but to achieve permanence in our victories we must ask and answer these questions.
John Garamendi received the endorsement of the Contra Costa Times today. It's basically the same stuff that they said back on the September 1 election. He's experienced, he knows his stuff, he'll have an impact. All stuff I can agree with.
However, there is at least one thing to quibble about, specifically the part about Harmer in this quote:
Garamendi supports the repeal of "Don't Ask, Don't Tell" and a change in the law to allow same-sex couples to legally marry. Harmer has not taken strong positions on either.(CCT 10/28/09)
Now, if one were to peruse over to the SF Chronicle's database of donors to Prop 8, you'd find one David Harmer of San Ramon having given $2200 to Yes on Prop 8. I'm not sure how much stronger of a position somebody could make. He literally put his money where his opinion is. He steadfastly opposes equal marriage rights for same-sex couples.
We lost Prop 8. No matter how you want to slice and dice it now, who you blame, or what organizations were at fault, we lost Prop 8. The fight to repeal Prop 8 will be long and arduous, whether that is next year or in 2012.
But the fight to repeal Prop 8 is always continuing. Two ballot measures from opposite sides of the country deserve our attention at this very moment. It cannot wait.
Paul Hogarth has done a great job bringing the Maine story back to California (and Calitics) by going there to do canvassing and other campaign work. In Maine, the legislature passed a marriage equality bill, and it was signed into law by the Democratic Governor there, John Baldacci. Unfortunately, the opponents of marriage equality were able to gather enough signatures to put the law up for a vote as "Question 1." You might recall many of these same organizations from the Prop 8 fight. The biggest donor to the anti-equality Yes on 1 Campaign is the "National Organization for Marriage." NOM, as it is known, was very active in Prop 8 helping to raise money and spread lies and distortion about what exactly marriage equality was all about. And the Yes on 1 Campaign is even using the same consultant as the Prop 8 campaign, Frank Schubert. And yes, even the same ads, just replace the Pepperdine professor with a professor from Boston College.
But the No on 1 Campaign is fighting back. They've launched several ads (also available over the flip) that directly respond to the lies and distortions. However, while they've booked the TV time, they can still use resources to get the message out. Please consider giving to the No on 1 Campaign on our ActBlue Page:
And in Washington state, some right-wingers are trying to repeal domestic partnership rights. If Referendum 71 fails, we will be back at square one in our West Coast neighbor. It is imperative that this measure succeed in protecting rights for same-sex couples. Here on Calitics, Laurel has been giving us updates from Washington.
You can give to both campaigns on the Calitics ActBlue page. Alternatively, you can fly up to Seattle for $40 from SFO or $60 from LAX on Virgin America. I imagine it's similar on other carriers. Seems like a small cost to help protect human rights from the right-wing attacks.
Sen. Mark Leno has a diverse legislative platform, from single payer health care to fighting against toxics in our homes. However, it is for his work for marriage equality that he has built his name in San Francisco and Sacramento.
Today, the Senator bags two more achievements. First, after getting a veto from the governor last year, the state will now declare May 22 Harvey Milk Day (not a day-off though). The recognition for a man who was dedicated to pushing for equal rights for himself and his community is an important marker for the fight for full equality for the LGBT community. It does not win us any additional rights, but it does give the state a chance to pause and reflect on a man who gave everything for the struggle.
On the other hand, Sen. Leno's SB 54 does have an immediate and real impact that goes beyond symbolism. The bill would grant marriages performed outside of the state before Prop 8 was passed full marriage status, just as the same-sex marriages performed between June and November. Marriages that were performed after that Nov. 5 date will get all the rights and benefits of a California marriage save the moniker "marriage."
Apparently Arnold saw the confusion brought about by the situation that Californians who had previously been married in, say Massachusetts, were in. They were told that they didn't need to renew their marriage, but the law was entirely unclear on the issue.
In a signing message, Schwarzenegger said California will not recognize the couples as married but will "provide the same legal protections that would otherwise be available to couples that enter into civil unions or domestic partnerships out-of-state. In short, this measure honors the will of the People in enacting Proposition 8 while providing important protections to those unions legally entered into in other states." (SacBee 10/12/09)
Expect SB 54 to be challenged by at least some of the right-wingers. There's not much of a substantive legal argument against these measures given the case law as it stands, but that's never stopped them before.
UPDATE: I forgot to point out that Arnold vetoed two transgendered focused bills, but Pam caught it. The vetoed bills would have made birth certificate records easier to handle and allowed for special protection of transgendered prisoners.
Love Honor Cherish has officially submitted ballot language for a repeal of Prop 8 in 2010. The language still has to wind its way through the official process before signature gathering can commence.
But while Equality California opposes the measure, preferring to wait until 2012, Geoff Kors is still trying to ensure that he reigns supreme in the California LGBT land.
We helped Love Honor Cherish draft the language they have submitted, by spending hours with them on the phone for discussion and feedback. We didn't approve the final version, as we aren't involved in the effort to file this language, but we wanted the language to be as good as possible. Submitted language should always be shown to key stakeholders, and different options should be tested.
Good luck with that Geoff. The LGBT community still has some serious soul searching to define who exactly our leaders really are, because I'm not sure if Geoff Kors really has the authority and respect of the community at this point. And while elected leaders are pivotal to broad progressive goals, they cannot be the leaders on a ballot fight.
At any rate, congrats to Love Honor Cherish on this. Whether this actually has the institutional strength to get on the ballot is an open question, but no matter what happens, it must be the priority of every member of the LGBT community, and our progressive allies, to fight like hell once we get a measure on the ballot.
(This appeared in the Sacramento Bee. I'm on the board of Alice, and helped a bit with this. It is an important and valuable proposition. - promoted by Brian Leubitz)
After months of paralysis, the lesbian, gay, bisexual and transgender community has been unable to reconcile the different strategic perspectives for repealing Proposition 8.
A consortium of groups, spearheaded by the Courage Campaign, is moving forward with an initiative to repeal Proposition 8 in November 2010. Meanwhile, Equality California, or EQCA, the largest LGBT advocacy organization in the state, has released its plans to repeal Proposition 8 on the November 2012 ballot. Efforts to reconcile have apparently been exhausted.
Make no mistake: We will repeal Proposition 8, but the current situation is untenable. Both factions are working with one hand tied behind their backs. The 2010 proponents are moving ahead with an undeveloped, piecemeal strategy with very little fundraising support or infrastructure. While we commend their energy and commitment, this is an overly risky way of running a campaign when so much is at stake.
Conversely, the very word "EQCA" has become a lightning rod in the discourse surrounding marriage equality. EQCA has been on the ground since the beginning of this year, conducting extensive outreach to communities across the state, particularly minority and religious communities, but it has not done enough to reinvent itself and its mission since the passage of Proposition 8. Nor has it done enough to address the lack of trust with which a large portion of the community, particularly younger, grass-roots activists, views them.
So what are the solutions to this quandary? While the Alice B. Toklas LGBT Democratic Club decided in July that a slightly longer timetable culminating in a 2012 election is the appropriate strategy, we do feel that there is a lot of middle ground that we are failing to acknowledge. We can, should and must build a bridge to meet in the proverbial middle by creating a governing structure that provides accountability to both camps.
Perhaps our suggestion of a supervising structure will be a difficult pill for both sides to swallow. But think about it - is there any other way? The current situation is untenable. Whether this proposal is the solution or the beginning of the conversation that moves us toward a solution, it is clear that the status quo is completely unacceptable. Accordingly, we propose that a new campaign structure be formed that will govern the longer-term aspects of both the 2010 and 2012 efforts that are compatible.
Campaign structures must be set up to govern both the 2010 and 2012 efforts anyway, and there is no time to lose.
The new organization that we propose will have two distinct branches, both responsive to a central, governing body. One branch will focus on the efforts to repeal Proposition 8 in 2010. The other unit will focus on repealing Proposition 8 in 2012 and presumably will execute the public outreach plan for the 2012 election.
A central governing structure that supervises these operations must reflect the community and be accountable to it. It should conduct and be the repository for the research that is necessary to mount a successful ballot measure. It would coordinate and build upon the political research that the Courage Campaign has begun in support of a 2010 ballot measure and expand that work should a future initiative be necessary.
This central governing structure would also maintain voter databases and voter profiles that both the 2010 and 2012 efforts will inevitably create. This overarching structure would safeguard the data collected and determine what information to release or withhold based on what's good for the community as a whole.
Finally, each consortium, 2010 and 2012, will be responsible for its own fundraising and executing its plan. However, should either initiative wind up on the ballot, this overarching structure would transform into a single campaign committee to oversee, supervise and manage the campaign. Creation of such a structure will bring consensus and, most importantly, accountability to the divergent paths our community has taken.
The 2010 consortium is a fireball of energy, committed to repealing Proposition 8 now. An overarching structure responsible for research, education and expansion of coalitions within ethnic and religious communities would provide accountability to the community and free both the 2010 and 2012 consortiums to focus on the intense grassroots efforts necessary for the success of a ballot measure.
Regardless of how we proceed, we must establish a structure that will have the trust of the entire community and ensure the integrity of any campaign to win back marriage equality. Whether you believe in 2010 or 2012, we are fighting for the same goals and ideals. We need to mutually co-exist and flourish.
The Alice B. Toklas LGBT Democratic Club, our nation's oldest chartered LGBT Democratic organization, urges the LGBT Community to create the structure, supervision and, above all else, accountability needed to move us closer to full equality.
This article was written by Susan Belinda Christian and Charles Sheehan, Co-Chairs of the Alice B. Toklas LGBT Democratic Club, based in San Francisco. It was approved by the Club's Board of Directors. For more information: alicebtoklas.org.
Judge Vaughn Walker has set a January trial date and an October hearing for pretrial motions in the Prop 8 litigation in federal court. Particularly of note is his opinion on who gets to intervene in the litigation. The old school gay rights groups, including the ACLU, NCLR, and a few others, were rejected, while the City of San Francisco was allowed to intervene:
But the judge allowed intervention by San Francisco, which had also challenged Prop. 8 in the state court. He said the city brings a unique perspective to the case, with its claims that denying marriage to same-sex couples leads to higher government costs in health care and social services. (SF Chronicl 8/19/09)
Judge Walker also rejected Randy Thomasson's crazy bigots of the California Campaign For Against Families. See, they thought they should get in on the action because the Prop 8 people were too gay friendly. They wanted to ban domestic partnership. Looking back, it's kind of too bad that ol' Randy didn't win that dispute. An initiative also outlawing domestic partnership would have gone down handily.
Also of note on this case today was a New York Times Story on Ted Olson's process to becoming an advocate of marriage equality. The whole thing is worth a read, if only to explain the enigma that is Ted Olson. Olson lines up his position on marriage equality with his position on affirmative action (he fought a long legal battle against it) and his view on civil rights. It turns out that even during his time in the Reagan and Bush II administrations, he was an advocate for civil rights for the LGBT community. Interestingly, his opponent in this case, Chuck Cooper, was Olson's replacement at the Office of Legal Counsel in 1984.
It also gives a bit of background on his legal thinking on the case.
Mr. Olson points to two more recent Supreme Court cases.
The first is a 1996 decision in which six of the nine justices, citing equal protection grounds, struck down an amendment to the Colorado Constitution that stripped gay residents of existing civil rights protections. This, Mr. Olson argues, is similar to Proposition 8's negating the California Supreme Court decision that recognized the rights of gay couples to marry.
The second is the court's 6-3 decision in Lawrence v. Texas, striking down laws criminalizing sodomy in 2003. Not only did the majority find that Texas had no rational basis to intrude into private sexual behavior protected by the Constitution's due process clause, it also declared that gay men and lesbians should be free to enter into relationships in their homes and "still retain their dignity."
Given Olson's stature, this case could become more interesting than initially thought. While getting the 5 votes on the Supreme Court will be challenging, totally discounting it would be a mistake.
I waded into this conversation a few days ago, and though I might be leaning just slightly towards 2012, I am still a bit mixed on this one. But the sides are full of emotion. There is the emotion of wanting to return to the ballot right now. To not rest and to fight right away.
On the other side, there is some strong emotion. There is a very real fear that if we go back to the ballot, that we will move in the wrong direction. There is concern that we will not have the resources that we need to actually compete, and that we'll have to deal with the CW-ish 3 strikes and you're out theory of ballot measures. (Don't tell that to the parental notification people)
Nonetheless, there is one player in this fight that is bigger than the rest: Equality California. They are the biggest LGBT organization in the state, and while they might have lost some of their luster in the Prop 8 debacle, they are still clinging to primacy. So, when they released their "Roadmap to Equality" today, people paid attention.
First, they start with this premise:
We also surveyed our membership prior to the Court upholding Prop 8 and new polling being released, and found that a majority of those who responded supported going back to the ballot in 2010, although the vast majority of our members either didn't vote or were undecided.
Well, that's all well and good, but the immediate discounting of their memebership kind of puts them in the category of an insider, rather than a grassroots organization. That's not inherently bad, but certainly worth noting.
And in the end, they come up with a plan favoring 2012:
We have one more chance (in the near-term) to get this right and win. Though extremely tempting, we do not believe a 15-month campaign gives us the time to do all that is required to do it right. We are not operating in isolation - our opponents are ready; they are passionate; they know which messages worked for them last go-around; they know the 2010 electorate is about four percentage points better for them; and they know where to find infrequent voters who support their position (conservative churches).
On the other hand, we have a dramatically changed movement; organizations that need to figure out how to work well together; a funding environment that is extremely difficult; a stronge sense from various organizations working in communities of color that the work cannot be done effectively in their communities in 15 months; an issue that is more effectively conveyed in a cultural, rather than a political, context; and the need to do extensive work to revamp our messaging. We recommend that the LGBT and allied community get behind a 38-month campaign to win marriage back in November 2012.
But they are not the only player in this, so the more pressing concern is what happens if it qualifies in 2010? EQCA seems to discount this in their public statements to bloggers and the media, but it isn't really that much of a longshot. They seem to take the tack that one part of the community can go one way, and the other can go another. I'm not sure this is true; it more sounds like a recipe for disaster to me.
I waded into this conversation a few days ago, and though I might be leaning just slightly towards 2012, I am still a bit mixed on this one. But the sides are full of emotion. There is the emotion of wanting to return to the ballot right now. To not rest and to fight right away.
On the other side, there is some strong emotion. There is a very real fear that if we go back to the ballot, that we will move in the wrong direction. There is concern that we will not have the resources that we need to actually compete, and that we'll have to deal with the CW-ish 3 strikes and you're out theory of ballot measures. (Don't tell that to the parental notification people)
Nonetheless, there is one player in this fight that is bigger than the rest: Equality California. They are the biggest LGBT organization in the state, and while they might have lost some of their luster in the Prop 8 debacle, they are still clinging to primacy. So, when they released their "Roadmap to Equality" today, people paid attention.
First, they start with this premise:
We also surveyed our membership prior to the Court upholding Prop 8 and new polling being released, and found that a majority of those who responded supported going back to the ballot in 2010, although the vast majority of our members either didn't vote or were undecided.
Well, that's all well and good, but the immediate discounting of their memebership kind of puts them in the category of an insider, rather than a grassroots organization. That's not inherently bad, but certainly worth noting.
And in the end, they come up with a plan favoring 2012:
But they are not the only player in this, so the more pressing concern is what happens if it qualifies in 2010? EQCA seems to discount this in their public statements to bloggers and the media, but it isn't really that much of a longshot. They seem to take the tack that one part of the community can go one way, and the other can go another. I'm not sure this is true; it more sounds like a recipe for disaster to me.
The LA Times just released a new poll of LA residents on a number of questions. Today, they released their results on marriage equality:
In the state's continuing political battles over gay marriage, both sides are targeting Latino voters, and a new Los Angeles Times poll illustrates why. Overall, the poll showed, a substantial majority of voters in Los Angeles support the right of same-sex couples to legally marry, with 56% in favor and 37% opposed. (LAT 6/19/09)
In the Prop 8 voting, LA County was almost exactly split, so this is progress. Still, if Prop 8 taught us anything, it's that you have to take polling numbers with a grain of salt. Apparently people like to tell pollsters they are voting for marriage equality, but when they get to actually filling out their ballots they change their minds.
On the crosstabs, we once again see that marriage equality will not be an issue in a few years. Voters 18-29 support marriage equality at a 66-29 clip, voters 50-64 supported at a 55-39 rate. The only group to oppose equality are seniors. Those over 65 are at 43-48.
Along ethnic lines, white voters supported at 68-27, Latinos split 45-46, and African-Americans opposed at 37-54.
All in all, this poll is relatively good news, but there is a lot of work left to be done.
As I woke up yesterday morning and scanned the morning headlines, one thing jumped out at me: there were lots of stories about the Fresno counter-protests against marriage equality. Take this one from the LA Times:
In Fresno, about 3,000 demonstrators -- the same number who turned out the day before on the other side -- were told not to accept being called bigots because they support traditional marriage.
"We know we've been called hate-mongers. That's not what we are," said Jim Franklin, pastor of Cornerstone Church, just after the rally.
"We are people who believe in our values."
With all of the wonderful planning and hard work that went into MITM4E, it is disappointing to see this kind of story in the media. But one of the more frustrating aspects was that it didn't have to be this way. In many ways, we are inflicting our own wounds. We must think about the language and images that we present. Demonizing our opponents might feel good, but it doesn't actually help us get to our goals. Calling people bad names validates the right-wing worldview that we are somehow out to get them.
The fact is that a large majority of marriage advocates aren't holding signs comparing pastors to outrageous historical villains. If we are going to win a YES campaign, we are going to need to run a positive campaign with messages that focus on the benefit to the state of marriage equality.
Unfortunately, the timing of Meet in the Middle for Equality gave the opponents a boost. They were able to hold their rally on Sunday, grab the media who was already in town for the Saturday rally, and get the media coverage on a better news day, Monday. It's unfortunate, but the timing favored those who oppose marriage equality. See also: San Diego U-T, AP via Google, CBS-Fresno. On the flip side, there were some great press hits, like this one in E!, and this one from the Chronicle.
I'm not trying to say that the event wasn't successful. I think the concept of meeting in one place to discuss our issues and to work for true marriage equality is a solid one. My point is that we need to be reaching out as much as possible, rather than picking fights.
The key thing is that while rallies are nice and important in mobilizing our friends, the hard work is still yet to come. If we want to win, we have to do it through the hard field work that we really lacked last summer. That means knocking on doors and making personal contacts, perhaps through the Courage Campaign's Equality Teams. That means making the phone calls, and talking to your friends, neighbors, acquaintances, that guy you see on the train who gets really emotional about his bejeweled games, and well, maybe your family too. Despite all the hoopla and the hype of big rallies with celebrities and inspiring messages, it's the one-on-one that gets us the votes. The organizing angle was stressed at MITM4E, but as we proceed towards an initiative, we cannot let that get lost in the shuffle.
For a long time, the LGBT community has avoided bringing a federal claim regarding marriage equality. That will change tomorrow when Ted Olson, former solicitor general under W, and David Boies, his rival in Bush v. Gore.
In a project of the American Foundation for Equal Rights, Olson and Boies have united to represent two same-sex couples filing suit after being denied marriage licenses because of Proposition 8.
Their suit, to be filed in U.S. District Court in California, calls for an injunction against the proposition, allowing immediate reinstatement of marriage rights for same-sex couples.
The California Supreme Court ruled in May 2008 that state law prohibiting same-sex marriage was unconstitutional under the privacy, due process and equal protection guarantees of the California Constitution. (LA Times 5/26/09)
Lamda Legal and other national LGBT legal organizations have explicitly stayed away from pressing this in federal court in order to stay away from the conservative federal courts. But, I suppose it had to happen sometime. The likelihood of success seems slim at this point, especially for the injunction. In all likelihood, we're going to fight Prop 8 at the ballot.
That being said, we are right on the underlying argument: LGBT couples are denied the equal protection of the law.
UPDATE (by Be_Devine): Interestingly, Boies and Olson filed their lawsuit last Friday, before the California Supreme Court even decided the Prop 8 cases. They filed the case in the Northern District of California in San Francisco, and the case was assigned to Judge Vaughn Walker. Judge Walker currently the Chief Judge of the Northern District. He was nominated by President George I in 1989. Reagan nominated him earlier, but his nomination failed. He endured anger from the left because of his membership in the Olympic Club, a private club that was, at the time, all-male and for representing the U.S. Olympic Committee in its suit to stop the use of the term "Gay Olympics." Judge Walker has, however, publicly called for the legalization of drugs. He is considered a conservative judge, but if anything, he is unorthodox.
UPDATE by Brian: I've posted the complaint over the flip. You can also find it here.
