I’ve been watching the circular firing squad begin to form in the blogs and, frankly, I’m rather disappointed.

The simple fact is that the people who are at fault are the 52% of California voters who voted for irrational and baseless discrimination.  That’s where fault lies, and any claims that anyone else is to “blame” is the equivalent of the 1960s police detective telling an abused spouse to go home and talk it out.

I’ll preface it by saying this – I’m one of those people who are apparently at fault for Proposition 8 failing.  I stayed up late last night in my friend’s apartment in Arlington, VA, after hearing the car horns along Clarendon and Wilson Boulevards celebrating the election of Barack Obama and getting second-hand reports of impromptu gatherings on U Street and Pennsylvania Avenue in the District, waiting for a glimmer of hope that Prop 8 would flip over.  It didn’t, and that made this morning’s flight back to Los Angeles rather bittersweet.

I stand by the decision to go to Virginia.  This election was historic.

No fight comes without its setback, and this one is a large one.  We now need to re-group and identify both a tactic to overturn Prop. 8 as well as an underlying tactic to either get rid of or severely curtail this absurd system of propositions.

Here are some of the problems that I saw with the last year, with the above caveat in mind that the only people who are at fault for this are the people who voted for Proposition 8.

1) The No on 8 campaign.  It was the worst campaign I’d ever seen, short of Diane Wilkerson’s State Senate campaigns in Massachusetts.  I attempted to volunteer by phonebanking, but received a condescending e-mail, sent weeks if not months after I had requested to volunteer, that explained the unnecessarily complex training process that appeared to conclude that anyone who phonebanked for the No on 8 campaign was plainly an idiot and needed hand-holding.  I hoped to volunteer through an office instead, but the offices were all too far away from where I live in LA (I can’t drive) and they kept obscene hours.  I finally reluctantly gave up, and because of the fact that the economy has kept me from obtaining a full-time position, have donated a total of $30 this election cycle.  So, bluntly, despite the fact that the No on 8 campaign was so important to me, I found myself locked out of it.  I wish 8 had failed, but I stand by my choices of how I allocated my time – it became plainly clear that any time spent on the No on 8 campaign would just be spinning a hamster wheel.

2) Not only did the No on 8 campaign not allow individual Californians to get involved in any meaningful fashion, but they ran, as I said above, an astonishingly bad campaign.  They were unable to get in front of any attacks, the TV ads were sparse and ineffective (whatever happened to the Let California Ring campaign of last year?  Those ads were plainly effective).  No on 8 allowed the Mormon Church to come in and buy a California law, and their opposition to this was paltry at best.

3) Gavin Newsom’s inflammatory remarks didn’t make the job easier.  They just weren’t helpful.  There’s no better way to put it.  The first time I saw them in an ad I was shocked and appalled that he had said something so inflammatory and unnecessary – you don’t win supporters by saying that their laws (however wrong the laws are) are overturned “whether you like it or not” in that tone.  He’s a politician, he should’ve known right where it would’ve ended up.  He’s not exactly going to find himself as an example of how to win friends and influence people, and immediately after seeing that ad, said “If 8 passes, Newsom will be blamed.”

4) Very few politicians wanted to get in front of this issue.  People try to be angry at Obama for the fact that, at one point, Obama said that marriage should be between a man and a woman.  But he also came out in clear opposition to Prop 8 and his statements on equal marriage sure look mighty close to supporting equal marriage, much closer than Bill Clinton ever did.  Obama had his own job to do, and by ushering in a progressive Presidency and Congress, our job in California gets a whole hell of a lot easier.  The fact that he won Virginia last night and will probably win North Carolina shows how a Democratic progressive candidate can win a mandate.  He now has the ability to translate that mandate into true progress.  Don’t blame Obama, and don’t blame his supporters.  But where was Mayor Villaraigosa?  Where was Arnold and his alleged opposition?  Where were all of the California leaders who ostensibly opposed 8?

I will say this: we now have an opportunity to turn this lemon into lemonade:

1) We could re-focus our efforts to identify a way that we could pass a law, through the Legislature or the defective proposition system, to “re-legalize” equal marriage.  This would show that it can, in fact, be done, and may trigger a tidal wave of similar laws.

2) We could instead re-focus our efforts to demolishing this outrageous proposition system, whereby we can take away civil rights with fewer votes than which we can tax ourselves.  Our proposition system has long made California into a laughingstock, and it’s time to outright abolish it.  We elect legislators to legislate, and propositions should be inherently difficult to pass; our current system allows the Legislature to pass on the tough issues and promotes gridlock and corruption in Sacramento.

Yesterday, the Yes on 8 gave their somewhat premature victory speech. While I think the odds are tough for us to come back in the absentees, it doesn’t look good. Either way, it is what it us. They have the numbers right now on their side. Say what you will about discrimination being written into our constitution, or the threshhold necessary for said constitutional graffiti, we only have this from a statement from the No on 8 campaign:

Based on turnout estimates reported yesterday, we expect that there are more than 3 million and possibly as many as 4 million absentee and provisional ballots yet to be counted.

Here’s hoping for a Dewey defeats Truman moment, but I think they are a bit optimistic about those numbers.  Turnout cratered after the polls closed on the east coast and people started learning about Obama’s success. My guess is that turnout will end up around, or slightly below, the 2004 total of 12.6 million. That’s substantially less than Field’s estimates of 13.6 million, but still much more than the 10.3 million votes currently counted in the presidential election.  So, the fat lady has yet to sing on Prop 8, despite the AP and the Yes campaign.

That being said, the legal response to any prospective Prop 8 victory has already begun. First, there’s the issue of retroactivity.  Jerry Brown said over the summer that he thinks it isn’t retroactive, and the ACLU is backing that position. We probably won’t see a challenge to that until we have some real-life facts to challenge that on. I’m not sure when that will happen, but I can’t imagine the right-wing will want to just leave this hanging for too long.

Then there’s the bigger question of whether Prop 8 is valid at all.  Back in June/July, ACLU, EQCA, NCLR, etc, filed a lawsuit regarding whether Prop 8 was a revision or an amendment.  There is a big difference there. Revisions can only be accomplished through a constitutional convention and lots of 2/3 votes, while amendments require a bare majority at the polls.  Yeah, it’s a big deal.  

Before I go on, I’ll say this.  It’s at best a 50-50 shot, and that might be generous.  Not that we have a weak case, but what is critical here is that this will take monumental courage from our Supreme Court.  As you probably know, our Court faces election, and a decision in favor of marriage here will open them up to even more electoral challenges. Rose Bird is your big case there. However, the Justices should know that if they follow their convictions, and the case law set down before them, the LGBT community, as well as the greater progressive community, will come out in force in support of these Republican judges. We will give them money, and we will support their reelection to the Court.  Rose Bird was a lesson that we shouldn’t forget.

Let’s review the law, over the flip…

I’m just going to bring back my analysis from my previous post, with a few edits here and there. But there is a new Petition to the court.

What’s the deal with this revision argument?

Alrighty, this really goes to the heart of the matter. So, what is a “revision”? Basically a revision is a change to the “underlying principles” of the Constitution. If the Court determines that the question at issue affects the underlying principles of the California Constitution, the initiative must go through a different process. A revision requires a 2/3 vote of both houses of the Legislature or the convening of a Constitutional Convention (a process that I won’t go into here). The revision then must be ratified by the people. Obviously this initiative hasn’t gone through either process.

But what is an “underlying principle”, you ask? Well, good freaking question! There have been only a few cases which have actually dealt with this.  A few months back Killer of Sacred Cows wrote a recommended diary at dKos and crossposted here about an article by Kevin Norte (and a follow-up), a research attorney in the LA Superior Court.

In other breaking news, there is no such thing as a free lunch. This will be a tough case for Chief Justice George and the California Supreme Court.  While he did give a hint in the questioning all the way back in March, it’s not clear by any stretch that there are 4 votes for this, either before or after the election.

The EQCA brief cite several cases where amendments have been tossed. The most notable amongst the amendments that were tossed was at issue in Raven v Deukmijian (52 Cal 3d 336). In that case, Stephen Bomse (the same attorney at Heller Ehrman that field the case on behalf of the voters and orgs in the marriage case) argued that a proposed initiative that would have limited California criminal rights to the extent of the US Constitution.  The CA Sup Ct ruled that such an amendment would so change the structure of the California system of government as to amount to a revision of the Constitution.

The Court stated a rather nebulous standard in Raven:

As explained in Amador, and confirmed in Brosnahan, our revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision. Before examining the applicable authorities in greater depth, we first set forth the nature of petitioners’ revision challenge.

So, the Court goes through a two-pronged analysis when dealing with revisions. Quantitative goes to scope of changes in the Constitution, quite literally. That looks to the actual number of additions, deletions, and amendments to the California Constitution (Raven , III, B, 2).  As to the qualitative aspect, the Court states that “even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision.”

Clearly, the marriage issue is looking towards qualitative aspects. And again, Raven is the case to look at:

Even under respondent Attorney General’s “limited” construction of new article I, section 24, fundamental constitutional rights are implicated, including the rights to due process of law, equal protection of the law, assistance of counsel, and avoidance of cruel and unusual punishment. As to these rights, as well as the other important rights listed in new section 24, California courts in criminal cases would no longer have authority to interpret the state Constitution in a manner more protective of defendants’ rights than extended by the federal Constitution, as construed by the United States Supreme Court.

This is where the case is headed, where the controversy lies. The EQCA attorneys argue that marriage is now a fundamental right. It is implicated under equal protection of the law, as orientation is now a suspect class under In re Marriage Cases.  From the brief:

Equal protection is not merely a discrete constitutional guarantee; it is a trascendent principle that is deeply woven into the fabric of our entire Constitution. (Brief at 17)

There is a substantive argument to be made here. But, there is no case law on the definition of fundamental rights.  This would be the Court going out on a limb and expanding the scope of the revision doctrine.  Now, this is the same court that decided In re Marriage Cases, so it’s not entirely unthinkable.  

But, as the writ points out, the Courts were specifically formed to protect the rights of minorities.  This is the very definition of a majority trampling on the fundamental rights of a minority.

And the court, in In Re Marriage Cases defined the right to marry as exactly that: fundamental.

we conclude that … the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple. In Re Marriage Cases at 10

And the word fundamental is spread liberally throughout In Re Marriage Cases.  But, like I said, this isn’t a question of law, the precedent is there. This is merely a question of courage. Does our justice system allow for the curtailing of fundamental rights by a bare majority? It certainly wasn’t designed to do so…but the jury is still out.

I wrote much of this as a comment in Paul’s post, but wanted to expand some on it and make sure these questions don’t go down the rabbit hole.  There will be a lot of introspection about this campaign, how we lost and why we lost.

I was proud to work along side many wonderful hard working staffers on the campaign down this final stretch.  This post is not directed at them.  They did a commendable job with what they were asked to do.  And for those feeling the if only I volunteered a little earlier, or a little longer I say this.  Prop 8’s passage is not about any one person’s failure at the grassroots level to get involved.  With this margin of loss, the blame has to go to the top.

But who is the top?  That is indeed part of the problem.  Today, I am left with a lot of questions about the strategic decisions the campaign made.  This is not a comprehensive list and is mostly focused on what I saw from within the campaign this past week.  I was not around at a deep enough level earlier to see what happened from the minute they started circulating the petitions to get this on the ballot.  Those who know more about earlier time periods, or have strategic decision questions of your own, please chime in the comments.

These are my thoughts, not that of my employer and I offer them now as part of an effort not to assign blame, as much as figure out how we fix it for the next fight.  What we did this time did not work.  Today we wake up to discrimination being written into our state constitution.  We must figure out a way to take it out, one way or another.  Most likely, that will involve another initiative campaign.

My 16 questions are below the fold:

1) How many campaign managers were there?  

2) How many times did they restructure the decision making tree?  

3) How many different strategies did they have?  

4)How did they only plan for a max budget of $20 million when they ended up with closer to $40M?  

5) Why did they not anticipate and better counter the opposition’s messaging?  

6) Who really thought it would be a good idea to run a No campaign with green check marks and “Equality for All” as the slogan?  

7) Who made the decision not to strongly make the argument that Obama opposes 8 to his supporters?  

8) Who decided that not having a true ground game was a path to victory?  

9) Who thought that paid phones to voters were more effective than grassroots supporters making calls?  

10) Who put together an out of state phone banking program and then never really effectively launched it.  

11) Who thought it was a good idea to have the only ask of volunteers election weekend (Sat-Mon) to come in for a one hour training?

12) Who thought it was a good idea on election day to have the main volunteer ask to stand in front of polling locations, which are mostly churches and schools and pass out cards for a campaign where churches and schools were the main contentious issues?

13) Who thought that waving signs brings a significant amount of voters to the polls?

14) Who never came up with a legal strategy to counter people being kicked away from those locations?

15) How did the campaign really think that they would have the legal right to stand on church property with No on 8 signs?

16) Why was the campaign complacent with just having labor endorsements, instead of getting their advice on how to run a field campaign, use their field resources like phone banks, encourage them to communicate with their members and just generally be a major presence in the campaign?

As you can tell, I have a lot more questions than I have answers.  And right now, I am incapable of writing much more.

This is a terrible terrible day to be GLBT and a Californian.

(Well, education is as good of a place to start digging ourselves out the Bush whole as anywhere. – promoted by Brian Leubitz)

Yesterday's historic election of Senators Barack Obama and Joe Biden as our next President and Vice President was a true victory for every child, student, worker and family in America. I congratulate Senators Obama and Biden, and I look forward to working closely with them to change the direction of our country and get our economy moving forward again.

During the past two years, the U.S. House Education and Labor Committee has focused on strengthening our nation's middle class – a priority that Senators Obama and Biden clearly share, as demonstrated by their careers and the focus of their historic campaign.

With our country facing the worst economic crisis since the Great Depression and our global leadership at risk, this mission is more important than ever.

In the next Congress, this committee will be dedicated to working with the new Obama-Biden administration and members of both parties of Congress to rescue our economy by rebuilding and strengthening America's middle class. We must get started right away by passing a Main Street recovery plan that will get Americans back to work and provide immediate relief to families and workers struggling with long-term unemployment and depleted state budgets.

We will dedicate ourselves to improving our nation's schools and continue our efforts to make college more affordable and accessible, so that every student has the opportunity to succeed. We are committed to rebuilding our country's roads, bridges and schools, and to green retrofitting and other modern energy programs that will create millions of good-paying jobs and reestablish America's technological leadership.

We will fight to restore workers' rights, so that every American can benefit from economic opportunity. And we will make the preservation and strengthening of retirement savings a priority, so that all Americans can enjoy a secure retirement after a lifetime of hard work.

Today marks a new beginning. Together, we can rescue our economy, restore the promise of the American Dream, and ensure that, in a nation as great as ours, the interests of students, workers, families and retirees are at the heart of our nation's priorities.

More information on recent hearings on the economy and the committee's work over the past two years.

(Cross-posted at the EdLabor Journal.)