Cross posted from EENR Blog

One of the most important progressive equal rights issues for me is Marriage Equality for same sex couples.  Why?  Because it’s one of the last Government sanctioned forms of discrimination.

This week there was a huge victory for Marriage Equality with the California Supreme Court striking down the State’s 2000 ban on gay marriage.  

One of the first knee jerk reactions of  Republicans in the State was to declare that the Court was legislating from the bench, just a bunch of “activist” judges (Of course the minor detail they forget to mention in their partisan bigot filled hissy fit is that 6 of the 7 judges were appointed by Republican Governors).  They also argue that this will lead to the legalization of “polygamous and incestuous marriage”.  Another whopper is that the ruling undermines the voters because the bill was passed with 61% supporting the ban on gay marriage.  And of course the best argument is that we as citizens must protect marriage and I wrote earlier in the week, Protect Marriage?  From What Exactly?.

So, what is all the fuss about?  It’s a sea change and Republicans can sense that they will probably lose this battle in the end.  This is when all politics become local politics.  A precedent in such a large State like California will resonate with other States who have yet to take this issue head on.

Here is an excerpt from a blog post by a local Republican Assemblyman.

The California Supreme Court’s Supremely Bad Decision

By Chuck Devore

The California State Supreme Court, lead by Chief Justice Ron George, repealed California law stating that marriage is between a man and a woman as set forth by both the Legislature and the people through the passage of Prop. 22.

The Court’s ruling is breathtaking for its overreach.  Using words like “dignity” (23 times), “liberty” (34 times), and “privacy” (37 times) to describe same sex partners full right to marry, the Court overturned millennia of experience and more than 150 years of state law precedence.  (For the ruling, see: http://www.courtinfo.ca.gov/op…  In so doing, their strained justifications threw the door wide open to polygamous and incestuous marriage.  How?  By using the flawed logic that marriage is none of the government’s business insofar as marriage should be afforded to all to afford people privacy, liberty and dignity.  The same weak logic can be applied to the “plural” marriages of the Fundamentalist LDS cult in Texas or to a devout Muslim citizen of Saudi Arabia who wishes to emigrate to California with his four wives.  In fact, due to the equal protection provisions of the Fourteenth Amendment, both a Fundamentalist LDS cult member and a devout Muslim could argue that their First Amendment right to free exercise of religion are being violated by any restriction on polygamy – after all, their “dignity,” “liberty,” and “privacy” would be violated otherwise.

OC Blog

Lovely isn’t it?  I love how Republicans can use words such as “dignity” as being something supremely evil when talking about the individual rights of another human being.  And of course, they go into the straw man argument that by legalizing same sex marriage the next thing you know you will find people wanting to marry their brother or attempting to turn their personal life into a legal version of “Big Love”.

Ultimately the most important issue here is fighting back on these poorly argued oppositions and labeling them for what they are, flat out bigotry and homophobia.  The Chief Justice in this case understood why it was so very important that the right decision come down from the highest court in the State.  He said it was the hardest decision of his life.

But as he read the legal arguments, the 68-year-old moderate Republican was drawn by memory to a long ago trip he made with his European immigrant parents through the American South. There, the signs warning “No Negro” or “No colored” left “quite an indelible impression on me,” he recalled in a wide-ranging interview Friday.

“I think,” he concluded, “there are times when doing the right thing means not playing it safe.”

…

Asked whether he thought most Californians would accept the marriage ruling, George said flatly: “I really don’t know.”

He indicated he saw the fight for same-sex marriage as a civil rights case akin to the legal battle that ended laws banning interracial marriage. He noted that the California Supreme Court moved ahead of public sentiment 60 years ago when it became the first in the country to strike down the anti-miscegenation laws.

California’s decision, in a case called Perez vs. Sharp, preceded the U.S. Supreme Court’s action on the issue by 19 years. Even after that ruling, Californians passed an initiative that would permit racial discrimination in housing. The state high court again responded by overturning the law, George said.



Rather than ignoring voters, “what you are doing is applying the Constitution, the ultimate expression of the people’s will,” George said.

LA Times

To me this is the most compelling argument that Justice George makes for his ruling, it’s not about subverting the people’s will, just as we’ve seen in the past, the “people” have been wrong before.  It’s about upholding the State’s constitution and in that way supporting the ultimate will of the people.

I believe that the new initiative that Republicans are fighting to get on the ballot in November will not pass this time though.  Even in my conservative area of town in the local paper of record, the OC Register, the online poll they have shows 52% supporting Gay Marriage.  In the article I quoted Justice George in, the margin was much larger, 72% of respondents support Gay marriage.  Now granted, many Republicans are hoping that such a ballot initiative will bring out Republicans in droves but they forget something just as important, many new Democrats will also be coming out to vote and they will more than likely vote against change the State Constitution to ban Gay Marriage.  

And another factor to consider in California for this November?  Republicans in the State are stepping away from wedge issues like Gay Marriage.  

“I think we have bigger fish to fry than do people have a right, if they are gay, to get married or not,” Schwarzenegger said. “I think that we should think about fixing the budget system and think about fixing the health care system and rebuilding California.”

Sacramento Bee

And you know what, I agree with the Governator.  We do have bigger issues to deal with and as it stands, gays will be able to marry legally in this State if the initiative in November doesn’t pass.  I hope that moderate Republicans will heed the Governor’s logic and  reject yet another ban that violates the State Constitution.  

I would love to see my gay and lesbian friends have the right to marry so they too can have the same protections that many married straight couples take for granted.  I also hope then that in such a case we can put more energy into issues such as universal health care and education.  Wouldn’t it be nice to say we’ve moved passed the issue altogether?

California Gay Marriage made legal! Press Briefing & Rally

“Full and equal recognition of our relationships means that we have crossed a final barrier toward full and equal citizenship, at least in California. This day has been years in the making, but we know we can’t celebrate for long…

today we celebrate. Today we savor the full and equal recognition of our relationships, our families, and our responsibilities that come with it. But tomorrow, we organize. Our equality did not come easily. We will not let it go. – Ed Bennett, President of Sacramento Stonewall Democrats

…

Dan Chmielewski, on May 15th, 2008 at 10:27 am Said:

Its a great day for equal rights and personal freedom and liberty. Nice job on this Andrew

…

The Lovable Curmudgeon, on May 15th, 2008 at 10:32 am Said:

I had prepared for the worst. Now I’m numb. Truly a historic day.

Does anyone know of any celebrations scheduled in OC?

(And my security word was “equality”)

…

Sean H. Mill, on May 15th, 2008 at 10:44 am Said:

This is truly a great day. California should have been on the forefront of this and led the way in this fight for equal rights. Being the second state isn’t half bad though. I am proud to be a Californian today!

…

Vern Nelson, on May 15th, 2008 at 11:21 am Said:

SWEEET! Equality and justice, as they do too infrequently, lurch forward another step! And TEH GAY ROCKS!!!

…

OCDemoGrl, on May 15th, 2008 at 11:21 am Said:

It is great to see discrimination take a hit today. To my best friend, a proud gay American, who said he would not see gay marriage in his life-time, the door has swung open in your favor. Go forth and be marry!

…

Drew C., on May 15th, 2008 at 11:48 am Said:

This is absolutely awesome! Coming from working on the Equality for All campaign this is great progress…Congratulations to everyone in the LGBT community, I am so exited for you guys! As I always said, “Live better, promote equality!” Oh yea…thanks for coming out to phone bank for equality Andrew!

…

Bill Spaulding, on May 15th, 2008 at 12:55 pm Said:

Great news indeed. It’s a beautiful day in the neighborhood.

Celebrate in Long Beach this weekend at the Pride Festival both days and the Parade on Sunday morning.

Celebrate by donating to and/or volunteering for candidates who support the community.

Celebrate by helping in whatever way you can to make sure the initiative likely to be on the ballot this November fails to undo the court’s decision.

But first: Savor the moment.

OC Liberal

Dave alluded to the conservatives’ reaction to the ruling and I want to take some time to unpack their arguments here.  The Flash Report has a “special report” from Karen England of the Capitol Resource Institute.  She writes:

Four elitist, activist judges decided that they would redefine marriage by overturning the voter-approved Proposition 22. Out of thin air, the court created a “fundamental right” to gay marriage, equal with the rights to life, liberty and the pursuit of happiness. The main issue in this case is not whether marriage should be redefined – marriage is an institution that by its very nature cannot be redefined, regardless of political action. No, the main issue here is whether Californians will allow a handful of justices to impose their radical social agenda on citizens.

We often hear about judicial activism but this case will be recorded as the very definition of the term.  These activist judges demonstrated their need for a refresher course in the fundamentals of government and separation of powers.

Let’s take this point by point now, shall we…

As a friend of mine and a real leader in the fight for GLBT equality, Candace Gingrich likes to say when listing things:

A of all, what makes the judges who ruled on this case elitist?  I am pretty damn sure they would never use this descriptor had the court ruled in their favor.  It is simply a way to discount the opinion of the majority of the court.

B of all, Prop. 22 was statutory.  The judges in this case were asked to consider if that law squared with the California Constitution’s equality language.  The opinion of the public simply does not matter.  As Glen Greenwald writes:

(flip-it…the list goes to H of all)

Equally misinformed will be anyone arguing that this is some sort of an example of judges “overriding” the democratic will of the people. The people of California, through their representatives in the State legislature, twice approved a bill to provide for the inclusion of same-sex couples in their “marriage” laws, but both times, the bill was vetoed by California Gov. Arnold Schwarzenegger, who said when he vetoed it that he believed “it is up to the state Supreme Court” to decide the issue.

C of all, marriage has always been a shifting institution, evolving with society.  No longer do we treat women as property, or let men rape their wives.  This is from a NYT op-ed back in 2005 called “The Heterosexual Revolution”:

Marriage has been in a constant state of evolution since the dawn of the Stone Age. In the process it has become more flexible, but also more optional. Many people may not like the direction these changes have taken in recent years. But it is simply magical thinking to believe that by banning gay and lesbian marriage, we will turn back the clock.

D of all, the court did not create a “fundamental right” to marriage.  They simply stated that whatever straights get to do, so do gays.  If the state legislature wants to switch everyone over to civil unions they are free to do so.  The key here that the state treats both equally.

E of all, the main issue in this case is whether the California constitution requires all individuals to be treated equally with regards to marriage.

F of all, it does look like the voters will have their say.  The initiative that has been submitted and is awaiting approval of the signatures by the Secretary of State would change the California constitution and if that happened, the only way it could be reversed is by changing it again.

G of all, separation of powers worked exactly the way it should with regards to this case.  The Supreme Court is the final arbiter of what is constitutional or not.  That is their job.  The public passed a law, and the court gets to rule.  Now the governor has to enforce it.  That is the way our government works.  It is England that needs a refresher course in the fundamentals of the American system of government.

H of all, BRING. IT. ON!  I  cannot wait for this fight.  I will be fighting to protect my rights.  You are trying to take away my rights.  My generation is slowly but surely replacing yours.  We will prevail.  

And guess what?  It will have absolutely no impact on your life.  Your church can do what ever the heck it wants.  But I have a dream of someday calling a woman my wife and that I am going to fight like hell to protect it.

Cross-posted with Beyond Chron:

Yesterday’s decision by the California Supreme Court was historic because it set a huge precedent.  Not because the Court found the ban on same-sex marriage similar to earlier bans on interracial marriage, nor because it said domestic partnerships are inherently unequal.  What really mattered is that the Court ruled sexual orientation a “suspect class,” which means that all laws that discriminate on that basis must now pass strict scrutiny – a crucial step forward in the rights of LGBT people.

But same-sex couples in California still lack the federal benefits of marriage that straight people take for granted – like Social Security and immigration – because the Defense of Marriage Act (DOMA) precludes them from doing so.  Marriage equality supporters must defeat a constitutional amendment in November that would repeal the Court’s ruling, but they also need a President Obama.  If DOMA gets repealed in 2009, gay couples in California will finally be equal in the eyes of the law.

After the Supreme Court heard oral arguments in March on whether the state’s marriage law is unconstitutional, most legal observers predicted that the Court would uphold the ban on same-sex marriage.  If California’s Domestic Partnership Law offers many of the same legal rights as marriage, how are same-sex couples harmed by not getting married?

The Court answered this question by ruling that the term “marriage” is a necessary part of that constitutional right.  By framing the right to marry within the right to have a family, families of same-sex couples must be accorded the same “dignity, respect and stature” as other families enjoy. Offering the “historic and highly respected designation of marriage” only to straight couples – while giving gay couples “the new and unfamiliar designation of domestic partnerships” presents a “serious risk” of denying them such stature.

It’s what gay marriage supporters have argued for years, and is similar to the “separate is unequal” argument made by the Massachusetts Supreme Court in 2004.  But while that was a victory for California, it wasn’t the best part of yesterday’s ruling.

California’s law defining marriage as being between “a man and a woman” discriminates against gay couples – but to strike it down a court would have to rule that it violates equal protection.  If a law discriminates against a “suspect class” – like race, gender, religion or national origin – it must pass “strict scrutiny.”  In other words, the law is presumed to violate equal protection – unless the state can prove that it serves a compelling public interest, and is narrowly tailored through the least restrictive means toward that end.

But the courts have not recognized sexual orientation as a suspect class – so laws that discriminate against gays and lesbians have been upheld on “rational basis” grounds.  That means a law does not violate equal protection as long as the court can find some intelligible argument for why it makes sense.  New York, for example, upheld its ban on gay marriage through the “rational basis” test – its high court said the state had a greater interest in marrying straight people because they might accidentally have kids.

For decades, LGBT advocates have gone to Court and argued that laws discriminating against them are “gender discrimination.”  Hawaii’s landmark decision in the mid-1990’s on gay marriage was argued on this basis, and S.F. Superior Court judge Richard Kramer originally ruled in the present case in favor of marriage equality on the basis that it was sex discrimination.  The reason for taking this route was strategic: the courts have long considered “gender” to be a suspect class – but not “sexual orientation.”

Yesterday’s decision was historic because it ruled “sexual orientation” a suspect class.  I predicted this might happen when I read the Appellate Court decision in October 2006, where the lower court actually laid out what are the “necessary” elements of a suspect class: (a) the group has historically been oppressed, (b) the trait does not relate to a person’s value to society, and (c) the trait is immutable – i.e., cannot be changed.

Back then, the Appellate Court agreed that sexual orientation fit the first two categories – but said that they lacked evidence to conclude the third point.  At the time, I urged gay marriage advocates in Beyond Chron to give the Supreme Court ample factual evidence that sexual orientation is an “immutable trait” – and that if successful, the Court would have no choice but to strike the ban on same-sex marriage.

But the Supreme Court ruled that it didn’t matter if sexual orientation is “immutable” – because that’s not a necessary element of a suspect class.  “A person’s religion,” said the Court, “is a suspect class for equal protection purposes – and one’s religion is a matter over which an individual can control.”  The Court added that one can cease to be an alien (which is also considered a “suspect class”) by applying for U.S. citizenship.

Treating sexual orientation as a “suspect class” is a breakthrough for gays and lesbians in achieving their rights that will go beyond yesterday’s marriage decision.  In the future, any state law in California that discriminates on the basis of sexual orientation must pass “strict scrutiny” – just like laws that discriminate on race, gender, religion or alienage.

San Franciscans were in a festive mood yesterday – after having waited 4 years for this outcome – but the practical legal effect on gay couples is rather minimal.  That’s because California Domestic Partnerships already gave same-sex couples most of the legal rights of marriage.  Moreover, California’s Supreme Court could only require that the state let gay people marry – without extending any marriage rights under federal law.

And the Defense of Marriage Act (DOMA), which President Bill Clinton signed in 1996, explicitly says that same-sex couples cannot enjoy any federal rights – such as Social Security benefits, immigration laws that allow you to sponsor a foreign spouse, and the right to file a joint federal tax return.  Even Massachusetts, where gay couples have had the right to marry since 2004, does not have complete marriage equality for this reason.

But a President Barack Obama – along with bigger Democratic majorities in both houses of Congress – could change this after the November elections.  Obama has pledged to fully repeal DOMA, whereas Republican John McCain would not.  There will certainly be a fight in Congress, so marriage equality advocates must focus on the various House and Senate races in November – to ensure that a Democratic Congress will make it possible.

Meanwhile, the extreme right in California will put a constitutional amendment on the November ballot to prohibit marriage equality.  Because yesterday’s Court ruling was based on the California Constitution – not the U.S. Constitution – passage by the voters would effectively repeal the Supreme Court’s decision.  Therefore, much is at stake this November – and marriage equality supporters must mobilize now to defeat the initiative.

Yesterday’s court ruling was historic – and has created an exciting new precedent for gays and lesbians in California.  But we now run the risk of losing in November at the ballot box – and we still need to repeal DOMA at the federal level to get full marriage equality.  Defeating the initiative and repealing DOMA are both doable goals.

EDITOR’S NOTE: Paul Hogarth was a law school intern at Equality California during the summer of 2005, and got his J.D. from Golden Gate University in 2006.  He is an attorney licensed to practice law in California.

(I want to make sure I re-emphasize the first sentence. I do not know the outcome. I can only look to the judgment and hope that what I have here is complete and utter balderdash. As shayera said at dKos today, this is one of those times that I hope I totally screwed up. So, I look to tomorrow optimistically, with complete awareness of the fact that either way we have a long, hard fight in front of us. – promoted by Brian Leubitz)

UPDATE: I’ve decided to re-title this to reinforce the flimsiness of this stuff.  I’ve gotten word that the clerk was planning on changing roles for some time.  So, I’m going wait and see. Only 3 hours left anyway.

I don’t traditionally ply in loosely sourced rumors, but here I go. Some troubling news has emerged from the California Supreme Court regarding In re Marriage Cases due to be announced tomorrow. First, Justice Kathryn M. Werdegar’s only openly gay law clerk abruptly resigned today. I’m still looking to get additional details on this, but I am told that there was no indication of the resignation prior to today. If you have any further details on this, shoot me an email.

Next, from another source intimately familiar with the case and the Court, I’m hearing that the Court is prepared to take a step that stands in stark contrast to their bold and courageous position in Perez v. Sharp. Specifically, it looks like we might get a decision that dramatically rules against granting individuals the freedom to marry whomever they choose. The total voting correctly could be limited to one justice (if even that) by dissenting from a decision that would be looked back upon as a cop-out at best.

Leadership takes courage. Some have it. Others do not.  

I don’t like to use exclamations in my titles, but I felt this deserved one. A friend of mine emailed me a PDF foretelling a ruling in In Re Marriage Cases from the Supreme Court’s website.  So, tomorrow is the judgment day, the day we will learn if, in California, we all really do have equal rights to marry the one we love.

The decision is scheduled to come out at 10am. The Supreme Court has all sorts of interesting documents, audio, and other stuff related to the case at a special “High Profile Cases” page.

I’m sure you watched at least a little coverage of Pennsylvania yesterday, and while it seems this primary is destined to extend into June, that does not mean that there is not work to be done here and now. We have a June election, and we seemed to have dodged the major bullet with only one putrid initiative on the ballot. Prop 98 is truly bad, but we could have seen a wave of bad propositions. But the Dirty Trick is dead, and we only have the one stinker.

But, November is really, really important. Already, the Humane Society’s initiative for humane treatment of food animals will be on the ballot.  The anti-marriage gangs at “ProtectMarriage” have turned in their signatures, according to Equality For All. Signature gatherers are getting big bucks for several measures, particularly the Schwarzenegger redistricting measure. Parental notification will likely be on the ballot.

Toss in what might be one of those “turning point” elections for the presidency, and you’ll see a very large turnout.  And to those concerned that supporters of the losing Democrat will stay home, I say, “Supreme Court.”  Really, those people want John McCain to replace at least Stevens and Ginsburg? I doubt it.

But more important, hopefully, this will be one of the most progressive turnouts in our history. We’ll need every last bit of it to win, to save marriage equality that we will, hopefully, have won by that point.  To save the safety of California’s teens. To end the war in Iraq, to end torture, and to restore the tarnished “America” brand.

So, yup, Nov. 4, 2008. It’s really THAT important.

Yesterday, I sat down for a discussion with San Francisco Mayor Gavin Newsom to discuss his take on some of the issues that he’s dealing with right now.  You can hear the discussion right now on BlogTalkRadio, or you can download the podcast on iTunes. We have an array of technology here at Calitics.

We talked about several subjects, but began with a discussion of hybrids and the environment. The Mayor was recently named the “Greenest Mayor in the World.” (Um, that’s kind of lofty. I suspect we could talk to some European Mayors about that.) He certainly understands many of the issues related to alternative energy, but there is much work to be done here in SF so that we continue to be a leader on the environment.

We shifted to the Torch Relay and the fact that China has the Olympics. He acknowledges that it wasn’t perfect, but I’m not so sure that I really believe that it was a “real-time” decision. Surely there was planning before the day for the route to be transitioned to Van Ness. He said that he was trying to protect the First Amendment rights of everybody at the relay. I’m not sure how this could have better been handled, though. Would the planned route have been successful? I really can’t say.

As to China’s human rights record and getting the Olympics, the Mayor argues that those in glass houses shouldn’t cast stones.  In other words, America has its problems, Gitmo, wiretapping, Iraq, etc. To which, I didn’t have much to say.

On Marriage, he called the governor “consistently inconsistent” with his flip-flopping. And finally, on the budget, Newsom argues that he has insufficient flexibility to do much in the area of raising revenue. So, he’s raising parking fines, and other “hidden taxes.” The Bay Guardian argues that Newsom cuts too deep. It is obvious that the cuts will draw blood. I’d love to see the revenue sources that allow us to balance our budget. I’d love to see additional revenue at the local level, but that’s easier said than done.