61% of Californians support marriage equality

by Brian Leubitz

In the continuing data trickle from the good folks at the Field poll, the first covers the subject of marriage equality. As we’ve seen nationally, the numbers continue to shift towards the freedom to marry.

By a nearly two-to-one margin (61% to 32%), California voters approve of allowing same-sex  couples to marry. This represents a complete reversal in views about the issue from 1977, when The Field Poll conducted its first survey on this topic, and is the highest level of support ever measured by the poll. (Field)

No matter what the Supreme Court does on Prop 8, that odious measure is not long for this world. It will either be overturned in the courts or at the ballot before we get a new president.

In today’s data, we get the voters take on the status of the economy. In short, people are still gloomy:

Greater than seven in ten voters (72%) currently describe California’s economy as being in bad times. In addition, six in ten (61%) describe unemployment as very serious in the state, and just  36% expect job opportunities to improve in the coming year.  While this represents a slight improvement in the extremely bleak assessments of the state’s  economy that voters have offered over the past five years, the views of Californians remain gloomy.

In addition, when asked to describe their own financial situation, nearly half (44%) say they are  worse off now than they were last year, while fewer (30%) are better off. This is the sixth  consecutive year in which more voters report being financially worse off than better off. (Field)

Now, the economic indicators show that the economy is slowly improving, but the results are just too modest for the time being. If the sequester can be cleared out in Washington, we should expect to see continued growth. If not, we could see an unfortunate downturn.

Upcoming brief expected to argue that marriage equality should be law of the land

by Brian Leubitz

There has been a lot of discussion over the past few days as to whether the president will file a brief at the Supreme Court about Prop 8. The answer, apparently, is yes.

The Obama administration will endorse same-sex marriage today by telling the Supreme Court that California should not be permitted to ban gays and lesbians from tying the knot.

The highly anticipated legal brief was expected later in the day, just hours before the deadline, the Associated Press reported.

UPDATE: Here’s the brief, my take coming this evening. You can also find it over the flip.

The underlying argument of the brief is relatively simple. Namely, laws prohibiting members of the LGBT community from doing something, in this case getting married, should be subject to “heightened scrutiny.” That is to say, government needs something more than merest rational basis for the discriminatory law. The administration’s brief then goes on to say that the purported reasons given by the Prop 8 proponents do not meet that heightened scrutiny.

You’ve heard all the reasons they came up with why Prop 8 was valid: teh kidz, teh judges, and teh traditions. The government dismisses these with the one bullet that goes to the heart of the issue: California grants all the rights and privileges of marriage to gay and lesbian couples through domestic partnership. So, it can’t be merely to protect children. Denying the word “marriage” is simply done for impermissible purposes. Or, in the solicitor general’s words:

Private respondents, committed gay and lesbian cou-ples, seek the full benefits, obligations, and social recog-nition conferred by the institution of marriage. California law provides to same-sex couples registered as do-mestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.

In other briefing news, NFL players Chris Kluwe (Minnesota’s punter) and Brendon Ayanbadejo (Ravens linebacker) filed their own brief, available here. Not sure it will carry similar weight to the solicitor general’s, but their effort is sincerely appreciated.

Argue that Prop 8 denies equal protection, proponents do not have standing

by Brian Leubitz

A busy day in the Prop 8 case today, as the City of San Francisco filed their brief, and the original plaintiffs filed their reply brief. The links will take you to Scribd to read them.

The Supreme Court asked two questions, one on the merits of the case, the other on whether the Prop 8 proponents have standing to appeal the case. After discussing why they don’t think there is standing, both move quickly on to the merits. The arguments are two-fold, that Prop 8 violates due process of the law, and that it is a violation of the equal protection clauses of the fifth and fourteenth amendments.

As the March 26 hearing approaches, I’ll dig into all of the briefs and summarize what to watch for at oral argument. You can peruse all of the various filings at AfER’s website.  

Supreme Court takes on marriage equality, Prop 8 and DOMA

by Brian Leubitz

Mark your calendars for June 2013. That’s the close of the current Supreme Court session, and by that time we should have a decision on marriage equality. On Friday, the Court announced that it would hear cases on both Prop 8 and the so-called “Defense of Marriage” Act. But there is a caveat in the Supreme Court’s order:

About two decades after the campaign to win the right to marry for same-sex couples began, the Supreme Court on Friday afternoon agreed to consider – but not necessarily to decide – some of the most important constitutional issues at the heart of that national controversy.  Each side gained the opportunity to make sweeping arguments, for or against such marriages.  But the Court left itself the option, at least during the current Term, of not giving real answers, perhaps because it lacks the authority to do so. (ScotuBlog)

With respect to that open question of whether the Court has standing, it is a question that was at the center of much speculation before the 9th Circuit’s decision. Ultimately, the Ninth Circuit determined that the proponents of the law, ProtectMarriage.com, had standing to defend it. If the Court decides that it doesn’t have standing, Judge Walker’s original decision will hold and marriages will resume in California.

Now, as a matter of scheduling, we should have oral argument for both cases early next year. The cases will likely be scheduled for the same day, but that is not definite at this point.

Turning to the merits, well, you can find many reasonable predictions. But the Dean of UC-Irvine Law is both esteemed and usually pretty accurate at this game. His take:

“I believe the court will find that Prop. 8 and (the Defense Of Marriage Act) are unconstitutional,” Chemerinsky said. “The court decision will be 5-4 and I predict Justice Kennedy will write it. The court will say that the government has no legitimate interest in denying gays and lesbians the right to marry. …

“Justice Kennedy wants to write the next Brown v. Board of Education, not the next Plessy v. Ferguson,” Chemerinsky said.

Kennedy has actually been pretty good on LGBT rights issues, having written Lawrence v Texas and Romer v Evans, two of the most noteworthy gay rights cases.

For further discussion of possible options on how the Court goes on these cases, check out the Same Sex Marriage Section of ScotusBlog. NYU Law Professor Kenji Yoshino has a particularly interesting take on the three main ways that the Court could strike down Prop 8 without requiring nationwide marriage equality.

Supreme Court to decide on future of Prop 8 litigation

by Brian Leubitz

It has been over four years since Prop 8 passed in November 2008. Though it would now appear as pro-equality forces are on the march nationally, and could have flipped the 2008 final tally this year, we are still waiting for news from the Supreme Court.

In theory, that should come today. While the court could possibly hold over a final decision, that’s the luxury of being the nation’s highest court, I suppose. However, the justices were to discuss the case and announce a decision on whether to grant review of the decision today. So, what are we looking at?

If they decline to review the decision, Prop 8 remains dead in California. Marriages would likely begin once the Ninth Circuit lifts the stay and clears the last few procedural hurdles. Unfortunately, due to the narrow decision of the panel, the case only directly impacts California.  However, you would certainly have to think that marriage inequality amendments in other 9th Circuit states will be looked at skeptically until there is a Supreme Court decision.

If they take the case, a decision would likely come in the batch of decisions released in June after oral arguments. The Court also will decide whether to look at the constitutionality of the Defense of Marriage Act.  With DOMA have being ruled unconstitutional in several states, it seems at least better than a 50-50 call that the Court will deal with at least one of the LGBT rights issues.

And, so the waiting continues…

UPDATE: Well, as soon as I post this, it seems that they may be pushing it off. Not official yet, but ScotusBlog has a good track record. Their rumor  is that the Court is determining which marriage equality cases to take, especially with regards to the DOMA cases.

#scotus did not act today on #ssm petitions.Could issue orders Mon, but Dec 7 more likely.2 other grants, including gene patents.

— SCOTUSblog (@SCOTUSblog) November 30, 2012

UPDATE: Well, the time has come and gone on Monday now too. It looks like Friday is the next best guess. More from ScotusBlog.

This is an article written by Matthew Fleischer for Frying Pan News. Check Frying Pan News for regular in-depth coverage of Prop 32, its funders, and how it will impact working Californians.

Brothers David and Charles Koch, and other libertarian billionaire backers of Proposition 32, including Charles Munger Jr., like to wrap themselves in the toga of individual freedom. However, despite their supposed ideological fervor for personal liberties, they have allied themselves with some of the nation’s most vociferously anti-gay religious activists – all for a campaign to outlaw the use of automatic payroll deductions from union members and corporations for political purposes. Although it is not widely seen as a “gay issue,” Prop. 32’s passage could have far-reaching consequences for California’s gays and lesbians.

“If we lose organized labor as a funded political ally in California, the LGBT movement is in big trouble,” says Courage Campaign founder and LGBT activist Rick Jacobs.  “Would you rather have Howard Ahmanson thinking about your rights in the workplace, or organized labor? That’s what this is about. Mark my words, people like the Kochs and Ahmanson are not thinking about how LGBT people are welcome in the workplace and not discriminated against.”

Howard Ahmanson, the Prop. 32 supporter to whom Jacobs refers, is a wealthy heir who once told the Orange County Register his political aspirations for the country embraced “the total integration of biblical law into our lives.”

In 2008 Ahmanson was one of the leading backers of the successful Proposition 8, which banned gay marriage in California where, briefly, it had been legal. He donated nearly $1.4 million to fight against marriage equality. That sum is even greater than the $1 million he donated to the American Anglican Council, a religious advocacy organization, in the early aughts-ostensibly to help undermine the tide of tolerance growing in the church towards LGBT participation. The Episcopal Church, which falls under the Anglican umbrella and to which Ahmanson belongs, was the first major Protestant denomination to allow the ordination of openly gay bishops.

It’s telling that for a bill advertised as a campaign finance reform measure, Prop. 32 wouldn’t have put the slightest dent in Prop. 8’s funding, had Prop. 32 been law in 2008. It would have, though, prevented more than $2 million in union donations from flowing to the marriage equality side.

Ahmanson isn’t the only Prop. 32 backer looking to stifle LGBT rights in California. Despite his fundamentalist politics, he may not even be the most anti-gay. That honor likely belongs to real estate investment magnate Larry T. Smith, who thus far has given $255,000 to Prop. 32.

A strong supporter of Prop. 8, Smith was recently among the fiercest critics of SB 1172-the California legislative effort to ban gay-to-straight conversion therapy for minors – which passed in September.

Smith fundamentally rejects the notion that parents forcing their underage children to endure conversion therapy could be psychologically harmful. On the contrary, he feels it’s a “parental right.”

“It in fact appears most of the evidence supports the thesis or the concept that that lifestyle is the result of early childhood experiences,” Smith told the Christian news site Onenewsnow.com. “If early childhood experiences tend to motivate a person in that particular direction, then it would seem reasonable … that proper therapy would help them get out of that particular lifestyle, which I don’t care where you stand – there’s no question that it’s unhealthy.”

In other words, there’s no question that being LGBT is “unhealthy” and a lifestyle choice, and that all you need is some behavior modification at a young age and everything will be good-like curing bedwetting.

Smith isn’t merely opining. He’s the billionaire founder of the religious-right political action committee Family Action-which, with the help of fellow Prop. 32 backer and Family Action board member Mark W. Bucher, helped qualify and pass Proposition 22, a 2000 law amending California’s Family Code to effectively ban same-sex marriage.

For more than a decade, the Family Action PAC has routinely funneled money to anti-gay conservative politicians across the state of California, including Orange County State Assemblyman Allan Mansoor, whom Smith recently praised as “an effective voice for conservative values.”

Mansoor caught the attention of LGBT activists when he ran for a Costa Mesa city council seat in 2002 by posting homophobic comments and articles on the message boards of the website Concerned Costa Mesa Citizens. He also supports the claim that homosexual men commit acts of sexual child molestation at a disproportionately high rate.

Recently, Smith came out as an opponent of this year’s Assembly Joint Resolution 43 – otherwise known as the LGBTQ Bill of Rights. Proposed by Bell Gardens Assemblyman Ricardo Lara, the resolution urged Congress and President Obama to extend California’s robust LBGT civil rights protections against bullying, harassment in the workplace, and discrimination in pay, loan opportunities, housing, hiring and family leave, to gay and lesbians across the country.

“The California Legislature spends their time on trivia instead of dealing with the major problems that the state has,” Smith complained of AJR 43 to Onenewsnow.com. “And it also tells you how the special interests control the California Legislature.”

Smith’s definition of gay rights as a “special interest” should tell LGBT-rights supporters all they need to know about Prop. 32-whose website explicitly advocates “taking back California by reducing the influence of Special Interests across the board.”

LGBT activist Robin Tyler, an original plaintiff in the California Marriage Equality case and a member of the first lesbian couple to be legally married in California, sees Prop. 32 in the same vein as Prop. 8, and thinks its passage would have disastrous effects on the marriage equality movement in California.

“Prop. 32 is another glaring example of why Californians are being fooled into thinking that if they voted for stopping ‘special interests,’ they will be voting in their own favor,” she says. “Like Prop. 8, which misled the public who voted ‘Yes’ into thinking they were protecting their children, Prop. 32 once again misleads the public into thinking they are protecting themselves.”

Reached by phone, Larry T. Smith had “no comment at this time” on Tyler’s remarks or anything having to do with Prop. 32.

Should Prop. 32 pass, Smith, Ahmanson and their compatriots will undoubtedly continue pushing their religious, anti-gay agenda on the state of California and beyond.

“This is not just about California,” says the Courage Campaign’s Jacobs. “Labor communities have been very supportive of LGBT rights in the workplace and in the political space. They are reliable allies. If 32 passes, California’s 2.5 million unionized workers won’t be able to contribute their money for political purposes out of state either. The next time there’s a fight in Washington over the Defense of Marriage Act, for instance, labor has less capacity to join us. California is a donor state. The whole chain is interrupted.”

Blankenhorn testified at Prop 8 Trial, Now says we should work for marriage equality

by Brian Leubitz

In many ways, it was actually better for David Blankenhorn to be on the other side. He was something of a comic figure. He testified on behalf of the ProtectMarriage.com crew, and ultimately got so twisted around that his testimony likely did them more harm than good. In fact, he ended up saying that we would be “more American” on the day that we allowed marriage equality.

So it shouldn’t be all that shocking that he’s decided to write an op-ed in the New York Times calling for an end to the discrimination against same-sex couples. (h/t P8TT) Now, I’m not trying to be too cynical here, but how else was David Blankenhorn going to get an op-ed in the New York Times?

But, I digress, here’s a snippet on his change of heart:

But there are more good things under heaven than these beliefs. For me, the most important is the equal dignity of homosexual love. I don’t believe that opposite-sex and same-sex relationships are the same, but I do believe, with growing numbers of Americans, that the time for denigrating or stigmatizing same-sex relationships is over. Whatever one’s definition of marriage, legally recognizing gay and lesbian couples and their children is a victory for basic fairness.

*** **** ***

And to my deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus. To me, a Southerner by birth whose formative moral experience was the civil rights movement, this fact is profoundly disturbing.

So, is he saying that he is just now figuring out that much of the opposition to marriage equality is/was animus? Or, was his faith in his position strong enough that he could look past that. Either way, either he’s insensitive or kind of slow.

But, there is value in the symbolic import of having somebody who testified in favor of Prop 8 changing their position, for whatever reason. If Blankenhorn can truly persuade a few folks to change their minds too, then perhaps his decades arguing vociferously against marriage equality can be forgiven.

Marriage equality case looks set for the Supreme Court

by Brian Leubitz

Today the 9th Circuit denied the motion for en banc rehearing of the case. The Yes on 8 supporters had sought review from an 11-judge panel, but the denial means that their only recourse at this point is the Supreme Court.

Interestingly, this puts the case on a similar time schedule as the Defense of Marriage Act (DOMA) case that was just decided at the 1st Circuit. We could potentially see the future of marriage equality firmly established (or severely set back) within the very near future.

You can get all the documents from the Prop 8 case at the 9th Circuit’s case page.

Somewhat interestingly, the dissenting judges, O’SCANNLAIN, BYBEE and BEA, went off on the President’s statement on marriage equality, suggesting that we should have a “greater conversation” and that blocking the en banc hearing cuts off the conversation.  Judges Hawkins and Reinhardt respond:

We are puzzled by  our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.

9th Circuit in San Francisco will hear similar case in September

by Brian Leubitz

A quick word on the marriage equality front, as today the 1st Cir. in Boston struck down DOMA’s prohibition of federal recognition of marriage unconstitutional. You can read the decision here.

In something that twists judicial “conservatives” into knots, the argument for recognizing marriages performed in Massachusetts is one of “federalism”.

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today.  One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage.  Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest. (Decision at p.34])

In other words, this is a state’s rights issue. In Massachusetts and several other states, they have defined marriage to include same sex couples. Who is the federal government to ignore that definition? Judicial restraint and the Supreme Court’s precedent simply do not lead to any other decision than that DOMA is unconstitutional.

The 9th Cir in San Francisco will hear a similar case on DOMA in the fall.  With the Prop 8 case stalled at the 9th Cir., the DOMA cases may arrive at the Supreme Court first. While the issues are substantially different, the Court may choose to deal with the whole marriage equality issue in one term, rather than dragging it out.  However, one thing is certain, an electoral victory, or more optimistically several, would be very helpful when the case comes to the Court. Maine and Washington offer the best opportunity come November, and it may be that we here in California may never have to vote on this issue again.

While Prop 8 Decision Remains pending, President Obama “Evolves”

by Brian Leubitz

It may have been the Amendment 1 vote in North Carolina, but for whatever reason, today the President of the United States announced that he supports marriage equality. From ABC News:

California politicians on the “evolution”:

“This is a historic day and another step in our country’s long march toward equal rights and justice for all. The President’s statement is a milestone and so important for the millions of American families who deserve full equality. None of us can rest until marriage equality is a reality for all Americans.” – Sen. Barbara Boxer

“I am proud and elated that the President of the United States today announced his support for same-sex couples across our nation who wish to recognize and validate their relationships through marriage,” said Senator Leno. “This is an historic moment for our country, and I applaud President Obama for standing up for freedom, justice and equality for all people in a time when other elected officials are reluctant to do so. Denying committed same-sex couples the choice to marry has no benefit to our society and only divides communities and hurts loving couples and their families. I am confident the President’s support will help build momentum for the international movement to achieve full equality for same-sex couples everywhere.” – Sen. Mark Leno

“I applaud President Obama for endorsing same-sex marriage,” said Congresswoman Sánchez.  “If we truly believe in the Constitution, it’s clear that lesbian, gay, bisexual, and transgendered individuals deserve equal rights.  They deserve the right to stand in front of family and friends and proclaim their love and devotion for each other in a ceremony recognized in the eyes of the law.  We have a long way to go before we achieve full equality for the LGBT community, but today’s announcement by the President puts us one step closer.” – Rep. Linda Sanchez

“This is an inspirational, watershed day in an epic struggle.  Every day, we are moving closer to living up to our founding ideals as a nation.  Every day, we are moving further away from a past in which LGBT people were marginalized, delegitimized, and often completely ostracized, their relationships relegated to second-class status.” – Rep. Lynn Woolsey

“Today, President Obama reaffirmed the hope and promise most Americans felt nearly four years ago when he was elected. After yesterday’s disappointing defeats in North Carolina and Colorado, the President still had the political courage to do the right thing and publicly support marriage equality. I commend his leadership and commitment to all Americans, and I look forward to the day when such announcements cease to be viewed as momentous and start being viewed as common sense.” – Sen. Leland Yee

“The American Dream will be stronger for all of us when marriage equality is achieved across our country, though we still have a long road ahead. I’m proud that President Obama is now leading the way as we continue on that journey.” – Eric Bauman, Chair, LACDP

“President Obama’s words today will be celebrated by generations to come. For the millions of young gay and lesbian Americans across this nation, their President’s words provide genuine hope that they will be the first generation to grow up with the freedom to fully pursue the American dream. Marriage-the promise of love, companionship, and family-is basic to the pursuit of that dream.” – Chad Griffin, Chair of AFER and incoming president of HRC

“I’m delighted that President Obama has publicly announced his support for marriage equality.  The President’s evolution on this important civil rights issue mirrors that of millions of Americans over the last several years, and I’m confident his leadership will help change the hearts and minds of millions more in the days ahead.  With his announcement today, President Obama now stands with San Francisco on the right side of history.”   – Dennis Herrera, SF City Attorney and litigant in Prop 8 cases

“Today’s announcement by President Barack Obama moves our country one step closer to marriage equality. With the President’s personal support on the issue of same-sex marriage, we celebrate and recommit ourselves to the fight for all families.  Here in San Francisco, we stand ready to begin marrying same sex couples, and we will take this hard fought fight all the way to the nation’s highest court, if necessary. We remain as deeply committed to the fight for marriage equality today as we were nearly eight years ago when then Mayor Gavin Newsom led the charge on one of the most important civil rights issues of our generation to ensure equal protections and rights for all.” – SF Mayor Ed Lee