It’s tempting to look at the recent gay marriage defeats in Maine and California, and say at least we’re on the “right side of history.”  The opposition is running on borrowed time, as young people increasingly support marriage equality.  But the trend is not moving fast enough, and it’s clear that gay marriage supporters have been losing the “swing vote” in every election.  Same-sex couples have largely won the battle for civil unions, but there’s something about “marriage” that makes moderates uneasy – and it’s time that we speak directly to their concerns.  Third Way, a Washington DC based think tank, conducted a poll of 600 Maine voters right after Question One passed in November – which holds important conclusions we should build upon.  As we look at repealing Prop 8 in California, going straight to those voters so we can win and finally move on to other battles is key.  None of us want to wait until the old generation dies out, and nor should we have to.

As a Californian who traveled to Maine twice to help the “No on 1” effort, the Third Way report should not imply that we ran a bad campaign.  Gay marriage advocates made important strides in Maine – such as not being afraid to talk about same-sex couples – that will move hearts and minds in the future.  “No on 1” also did a great job mobilizing the base in an off-year election.  It’s because we ran a good campaign that made losing so much more painful than California, where we all woke up after Election Day knowing that we could – and should – have done much better.

But what the report clearly shows is how we lost the “middle voters” – people who don’t explicitly support same-sex marriage, but who are persuadable on the issue.  The poll asked voters to pick one of four positions: (a) 39% said gay couples should have full marriage rights, i.e., the base; (b) 22% said they should have the “same legal rights” but not call it marriage; (c) 25% said that marriage is between a man and a woman, but “there should be domestic partnerships or other legal rights” for gays; and (d) only 10% opted for no legal recognition.  The 47% who picked (b) or (c) are the “movable” swing voters.

And we got creamed with those folks.  On Maine’s Question 1, we lost 71% of those who picked (b) and 87% who chose (c).  Third Way did a similar poll in Washington, where on the same day voters upheld a domestic partnership law for gays and lesbians.  In that poll, nearly half of the “middle” voters sided with us.  We can draw two conclusions from this.  Either swing voters are “not ready” for gay marriage and we must settle for civil unions and domestic partnerships, or we can figure out how to get them to vote with us.  Given that at least a portion of these voters are persuadable, there is no reason not to.

“Equality” Argument is Not Adequate

Although gay marriage campaigns focus on “equality” and “discrimination” as central themes, it is far more effective at mobilizing the base – but does not resonate with most swing voters.  Only 22% of “middle” voters in the Maine poll agreed that denying gays and lesbians the right to marry is “discrimination,” and 31% agreed with the “separate but equal” analogy.  The argument that we should not have “one set of rules” for one group of people (including marriage laws) did better (43%), but in general it is not sufficient.

In its report, Third Way had an interesting explanation: “the middle sees marriage as an ideal as opposed to a legal construct, and they have yet to be persuaded that gay couples fit into this ideal …  Using the language of equality and rights to describe marriage feels legalistic to the middle and misses the true spirit of how they envision marriage.”  That’s why “equality” is enough to persuade them to support civil unions, but not gay marriage.

In order to win, we must re-frame the debate about the fundamental values of marriage.

What is Marriage – and What Do Gays Want?

Like all voters across the spectrum, the “middle” is concerned about the state of marriage in this country.  More in the Maine poll said marriage has “major problems” than said it was in “good shape” or has “minor problems.”  So when gay marriage advocates argue that half of all straight marriages end in divorce anyway, that does not really address their concerns.  They already fear that marriage is “threatened,” and don’t want it to get worse.

How respondents describe “marriage” had a major impact as to whether they opposed Question 1.  If they said it was a “lifetime commitment,” they voted with us 62-38 – but calling it a “sacred bond” made them vote three-to-one against us.  A “union between two people” also helped us, but very few swing voters agreed with that description.  In other words, pushing the notion that gays take marriage seriously enough to make a “lifetime commitment” goes a long way in helping these voters understand why it’s so important.

Whether people thought gays want to “change” marriage – as opposed to “join” marriage – also made a huge difference.  Those who said “change” voted “Yes on 1” by a nine-to-one margin, while 74% of respondents who picked “join” went with us.  The problem is, more swing voters believed that gay people are trying to “change” marriage.  Explaining that we just want to be part of an institution that values lifetime commitment will help.

One of the most effective ads that the “No on 1” campaign did was with Yolande Dumont, a French Catholic grandmother – as her gay son, his partner and their ten-year-old son look on.  “I believe marriage is a great institution,” she said.  “It works, and it’s what I want for my children.”

Can Somebody Think of the Children?  Go Talk to Your Kids!

Just like in California, the “Yes on 1” campaign in Maine focused their message almost exclusively on the impact it would have on schools – which had a big impact on swing voters.  74% of Maine voters in the “middle” said they were concerned about schools “teaching homosexuality.” The Third Way report speculated it’s not just about schools, but children in general.  “They are trying to make people feel uncomfortable about the consequences for kids of allowing couples to marry and stoke fears that kids will not value marriage in the same way if gay and lesbian couples are allowed to participate.”

But there are indications the approach we took in Maine had an incremental positive effect.  Rather than respond to the charge that schools will “teach” gay marriage, “No on 1” talked about how the opposition wants to make our families “feel ashamed” for being different.  The Third Way poll used this language with half its respondents, and used the other half as a control group.  It moved nine points in our favor, and eight points among swing voters.

The most fascinating statistic, however, was that those who actually have kids under 18 were more likely to vote our way: by 52-48, when we lost the election 47-53.  This suggests to me the “Yes on 1” ads were more effective on voters who “care” about “the children” – but don’t have kids at home to understand what really goes on at school.

On that note, voters who said they actually talked to their kids about Question 1 were more likely to vote “no” – by a 55-45 margin.  And while half of them believed it was “likely” that schools would teach about homosexuality if gay marriage were legal, only 40% said they were “concerned” about that.  Could it be that when parents talked to their children about gay marriage, they realized they didn’t have much to worry about?

It reminds me of a canvassing experience I had outside of Bangor.  I was talking with a mother who had seen the “Yes on 1” ads about schools, and said she was confused about what it all meant.  I explained that what our opponents fear is schools teaching tolerance, they want our kids to feel ashamed if they don’t come from the traditional family.  There are many kids with gay parents, I said, and they get teased at school for being different.

The mom turned to her daughter and asked, “is that true?”

“Yes,” said the six-year old girl.

Gay marriage activists always talk about the need for LGBT people to “come out” in their communities – that people won’t vote to take our rights away if they can actually put a human face on the issue.  The Third Way poll certainly showed that Mainers were more likely to vote “no” if they knew a gay person (especially if they knew them well), and people who had talked to a gay person about the issue voted two-to-one in our favor.

But in small rural towns in Maine (and other parts of the country), most people don’t know any gays.  While 70% of parents in the poll said they had talked to their kids about the issue, only 46% of all respondents said they talked to a gay person about the election.

Rather than wait for the old generation to die, it makes more sense to start having kids talk to their parents about marriage equality.  And it certainly won’t take that long …

Paul Hogarth is the Managing Editor of Beyond Chron, San Francisco’s Alternative Online Daily, where this piece was first published.

Cross-posted from the Prop 8 Trial Tracker

Remember all those experts who were scared of appearing on YouTube? Well, I don’t know if they knew this when they were lining up to be deposed, but depositions become part of the public record, and fortunately for us, we have said depositions. And even more helpfully, we have clips on YouTube of Paul Nathanson and Katherine Young, you know the people who believe that men are constantly and subtly being discriminated against.

Anyway, these folks go around doing expert testimony for social conservative causes. Apparently hiding their faces while doing so.  Perhaps Paul Nathanson should have hidden more than his face during the Iowa same-sex marriage, Varnum V. Brien, and just gone mute. It would have done more benefit for the opponents of marriage equality.   Nathanson’s testimony Varnum was so ridiculous that the court struck it from the record stating that his testimony was “not based on observation supported by scientific methodology or . . . on empirical research in any sense.”

Forgetting my legal training, and just looking at a quick behavioral and textual reading of this testimony, it is clear that neither of these two witnesses would have done a lick of good for the Prop 8 defense. As we go through these clips, you’ll know exactly what I mean. Let’s start with Paul Nathanson (transcript here):

Q – Let’s try to break that down into two parts.  First, you recognize that gay couples are today raising children, correct?

A – Yes.

Q – And you believe that enabling those gay couples to marry would enhance their ability to be good parents to the chi-

A – Yes.

Basically, this guy admits something that David Blankenhorn ended up admitting on the stand: lack of marriage equality harms children being raised by LGBT parents. While the defense completely failed to prove that there was any damage whatsoever from marriage equality on the children of straight parents, over and over again, event the defense’s own witnesses acknowledged that there was real and serious harm done to not only LGBT couples, but their families. Meanwhile, Nathanson is looking unhappy and snippy. All in all, he was just another Blankenhorn debacle waiting to happen. And, I think even the defense would privately admit that could have gone better.

And Katherine Young would not have been much better.  See the thing is that with these scientists, they’ve actually read these studies, and understand the background. This is where Boies picked apart Prof. Miller. Miller had to eventually admit that his position was contrary to the great bulk of research in the field. And Miller’s testimony, at its best, could only go to a small portion of what they were trying to show.  Young wound up admitting a gold mine’s worth in her deposition. It’s almost hard to pick out selections from the transcript of Young’s deposition.

Q – My question is, is it your view that because something was the norm in the past, it should be continued in the future? …

A – Just because something is a norm, it doesn’t necessarily mean it is an appropriate norm, and it has to then be reassessed in the contemporary context to see if t norm should remain.

***

Q – And you believe that allowing gay couples to marry will increase the durability of those gay couples relationships, correct?

A – Okay.  I’ll say yes.

***

Q – Okay.  And increasing the durability of those relationships is beneficial to the children that they’re raising, correct?

A – On that one factor, yes.

While Young does come across looking annoyed, she doesn’t seem quite so smug as Blankenhorn and Nathanson, so point for her on that. However, the factual admissions she makes were just too much for the Prop 8 defense to consider putting her on the stand.

At any rate, both Nathanson and Young hardly look fearful of appearing either on YouTube or on the witness stand. This was a purely tactical decision masquerading as something else.  After all, they have written several books together about how men are an oppressed minority, they are hardly afraid of spouting controversial opinions in public.  The reason these two didn’t testify has nothing to do with being scared, and everything to do with the fact that they were simply bad witnesses.

(It stinks, but with every day, we are one step closer to equality. Also, it seems Frank Schubert agrees with Paul, No on 1 did run the better field operation. – promoted by Brian Leubitz)

I hate losing elections, but what I REALLY hate is losing after a high turnout.  Losing because our base didn’t vote is depressing, but at least it tells us what we need to do to win next time – and progressives can take heart in the fact that “the people” are truly on their side, if only they showed up.  Last night, Maine’s Question 1 passed 53-47 – despite a much higher turnout than expected (we matched last year’s Obama level at the University of Maine in Orono, winning the campus 81-19.)  The “No on 1” campaign also had a far greater field presence than the opposition, and superior financial resources.  It reminds me of 2004, when Bush won despite the progressive base voting in record numbers.  When California’s Proposition 8 passed last year, everyone could tell that our side ran an awful campaign.  It was painful, but gave us many lessons to learn – lessons that the “No on 1” campaign in Maine took to heart, and performed beautifully.  That’s why this loss is so much worse than Prop 8.  I don’t know what we could have done differently, and am too sleep-deprived to think it all through.

Paul Hogarth is the Managing Editor of Beyond Chron, San Francisco’s Alternative Online Daily, where this piece was first published.

BANGOR – “Welcome to the real Maine,” said Regional Field Organizer Gabi Bérubé as I arrived yesterday at the “No on 1” office in Brewer, just across the Penobscot River from Bangor.  That’s what Mainers up here call their part of the state, and it’s where I am spending the rest of my time on the campaign.  I asked to go to Bangor because I wanted to help our field effort in more challenging places, after “No on 8” spent too much time last year preaching to the choir.  The Bangor office covers everything north and east of here – in other words, two-thirds of the state’s land mass.  Replicating Howard Dean’s 50 State Strategy, “No on 1” believes we have gay marriage supporters everywhere – and it’s our challenge to organize them.  But we’re also targeting the University of Maine in Orono, whose 11,000 students make it the largest college in the state.  Mobilizing young people on campus – and turning out identified supporters in rural areas – will prevent us from getting creamed in northern Maine, which will help us win statewide.

Last year, “No on 8” had an office in the Castro – which made sense, because they could get a lot of walk-in volunteers.  But the campaign never had them engage voters outside of San Francisco, instead stupidly having them wave signs at street corners.  Meanwhile, LGBT activists in the Central Valley were ignored and under-utilized – prompting a mass rally in Fresno on May 31st to kick off the movement to repeal Prop 8.  If our side simply writes off those who live in conservative areas, how can we deserve to get a single vote there?

I’m not asking to be sent to the outer reaches of Arostook County – but Bangor appealed to me as a marginal area with enough voters to decide this election.  With a population of 30,000, it is the second largest city in Maine (third if you count Lewiston-Auburn as one city.)  It has a “small town” vibe, where many residents don’t lock their doors.  Bangor has a vocal LGBT community, but it currently has no gay bars – and the 1984 murder of Charlie Howard in the Kenduskeag Stream still haunts that community’s consciousness.

I came up from Portland yesterday morning, on a two-hour drive that took me through the most gorgeous fall colors I have ever seen.  I would have taken more time, but Gabi had asked me to arrive in Bangor around 12:00 noon.  She had to leave at 1:00 p.m. sharp for Washington County (also called “Sunrise County,” because it’s the easternmost part of Maine) to run a phone-bank in Machias – and wouldn’t be back until very late that night.  When I heard she was driving 83 miles on a two-lane road to go supervise ten volunteers, I was floored.  But that’s what it takes to do campaign organizing in the “real Maine.”

Just like Howard Dean’s 50 State Strategy showed Democrats they can start winning if they competed everywhere, “No on 1” has identified marriage equality supporters in the most conservative pockets.  Even if we still lose those areas badly, mining enough votes by encouraging supporters to “vote early” can pay dividends on Election Day.  As I wrote yesterday, Maine’s gay community had a 20-year losing streak of statewide ballot measures until 2005.  One of the strategies we changed that year was to start engaging conservative regions.

But working from the Bangor office won’t always be about driving for hours to meet ten volunteers.  The University of Maine is in Orono (about 15 minutes away), and same-day voter registration means we can generate a huge turnout for marriage equality on campus.  I met up with the four campus organizers yesterday afternoon, who had spent the whole morning doing volunteer recruitment.  Before they had to stop because of the rain, they had signed up 84 students to a shift.  They are organizing phone-banks on campus, and we discussed more outreach strategies.  I’ll be spending some of my time there.

It’s important, however, to realize the challenge “No on 1” organizers are facing in this area.  On Sunday night, I was at a phone-bank in Portland – with over 50 volunteers that required an overflow room.  Even if you take out the twenty volunteers who had come “from away”, we had 30 Portland residents making calls.  Last night, I was at a volunteer recruitment phone-bank on the outskirts of Bangor and only four people showed up.  The good news, however, is that pretty much everyone we called and spoke to committed to a volunteer shift later in the week – as we conveyed the urgency of mobilizing early voting.

This is actually the second time I’ve been to Maine.  The first time was in the summer of 2000, when I did a 28-state road trip after college.  I set out to do the entirety of Route 1 on the East Coast – which goes all the way to Key West, Florida.  That meant I would go to Maine, and drive up to Fort Kent in Arostook County – at the very northern tip of the state.  Before going, a lot of Mainers told me I was crazy – telling me that all I would find up there is “moose and woods and French people.”  I doubt that I’ll be going back to Fort Kent this time – but it’s exciting to be working out of the “No on 1” office for this region.

EDITOR’S NOTE: Paul Hogarth is the Managing Editor of Beyond Chron, San Francisco’s Alternative Online Daily, where this piece was first published.  He is helping to run Travel for Change, which helps bring out-of-state volunteers to Maine with money and donated airline miles for the “No on 1” campaign.  Hopefully later today, the site will launch “Drive for Equality” to organize carpools in East Coast states for day and weekend trips to Maine. Stay tuned …

“Yes on 1” – the Maine campaign to repeal marriage equality – aired its first San Francisco produced ad this week, which was kind of a dud.  It was like the first “Yes on 8” ad in California – minus the Gavin Newsom footage.  Within 24 hours, the “No on 1” campaign aired a strong rebuttal – in contrast to the 12 days it took “No on 8” to respond.  Rather than simply deny the “gay marriage in public schools” charge, the ad accused outsiders of harming kids – and that schools protect “all Maine families,” allowing our side to stay on the offensive.  With 53 days to go before the election, a new poll today shows Question 1 narrowly ahead by 48-46.  Supporters of marriage equality should realize that every effort will make a difference – and that we now have an opportunity to finally defeat anti-gay bigotry at the ballot box.

Proposition 8 passed last year, because the “No on 8” campaign spent its time reacting to the opposition’s attacks – even though we’ve seen the right make the very same attacks on gay marriage in state after state.  There was no excuse for supporters of marriage equality to not have a pre-emptive strategy before the opponents launched their ads, or to be prepared with a response that kept us on message.  Instead, we saw “No on 8” flailing throughout the campaign – as attacks began to resonate with swing voters.

Probably the most effective attack we heard was that gay marriage would be “taught” in public schools.  But it took “No on 8” twelve days to respond to that charge on the air.  When they did, they had an ad with State Superintendent Jack O’Connell – a politician that most voters are not familiar with – who simply said it wasn’t true.  All it took was for one class of 1st Graders to attend their lesbian teacher’s wedding (which the SF Chronicle shamefully treated as “front-page news”) for swing voters to believe that it was our side that was lying to them.

My sister was a First Grade teacher for many years, and she made a really good point to me after Proposition 8 passed.  Gay marriage may not be “taught” in public schools, but teachers do explain to kids that families are different.  Some kids have a mom and dad, some kids have only a mom, some kids may have two sets of moms and dads because the parents are divorced, some families have foster children, and – yes – some kids have two moms or two dads.  You don’t have to use the word “gay” or go into any more detail, she explained, because it’s not about “gay marriage” – it’s about respecting diverse families.  In other words, by simply denying its existence the “No on 8” campaign fell in a trap.

Now, the “Yes on 1” campaign in Maine has launched the same attack – but we are ready.  Less than 24 hours after the opposition’s San Francisco-produced ad hit the airwaves, “No on 1” had their own rebuttal.  The ad effectively countered the schools attack for two reasons.  First, they had a real teacher (Sherri Gould, who was named Maine’s “Teacher of the Year” in 2005), as opposed to a politician.  Second, it framed the issue around protecting “all families” – and Ms. Gould said that in her classroom, “we teach respect and Maine values.”  This allowed the “No on 1” campaign to stay on message pro-actively – rather than just reacting to lies.

Will that be enough to win?  A new poll that will be released today by Research 2000 (commissioned by Daily Kos) shows Question 1 narrowly ahead by a 2-point margin.  This makes the race a statistical dead heat, so anything can happen over the next 53 days.  Only about 500,000 people are expected to vote in Maine, which makes an intensive field campaign that reaches every voter eminently winnable.  Marriage equality supporters – especially Californians who are determined not to see another Prop 8 happen – must come to Maine, and be part of an historic campaign that protects marriage equality, and stops the right’s momentum.

That’s why the “No on 1” campaign is urging supporters to take a week of vacation time in October (when the Maine fall colors are in their full glory) – and come volunteer.  And because flying from California can be expensive and challenging, local Obama activists who helped send volunteers to the swing states last year have launched “Travel for Change” – where supporters can donate money and/or airline miles to send a volunteer to Maine.  No Californian who wants to go to Maine should feel deterred by the expense of a trip – just plan to go for at least a week.

Last year, many of us did not do enough to defeat Prop 8.  For sure, a lot of people were distracted by the Presidential race.  But the truth is “No on 8” did an awful job giving volunteers useful stuff to do – like standing at a street corner in the Castro.  I tried to help, but ended up working on other campaigns because “No on 8” was making us do inane stuff that someone like myself – who has over a decade of campaign experience – could tell was pointless.  When I volunteered for David Chiu in San Francisco – or went to Wisconsin to help Obama – the campaigns were organized enough to put volunteers to good use.

Having talked with the “No on 1” campaign in Maine, I am confident that out-of-state volunteers will be put to work – placed in local field offices to execute an intelligent strategy.  Now, people in California need to start making their volunteer vacation plans.

EDITOR’S NOTE: Paul Hogarth will be in Maine October 3-13, and will offer daily dispatches for Beyond Chron readers (where this piece was first published.)

In just 77 days, Maine voters can set the national agenda for marriage equality.  The state legislature passed same-sex marriage earlier this year, but now the right has collected enough signatures to put a referendum (“Question One”) on the November 2009 ballot – and has hired the same political consultants who successfully passed Proposition 8.  Supporters of marriage equality, however, are determined not to repeat the same mistakes we made in California – and will run an inclusive field campaign with a pro-active and pre-emptive message that (with the right resources) can bring about victory.  It does not cost a lot to win campaigns in Maine (only $3 million), and voter turnout is expected to only be about 500,000 people.  In other words, the campaign is winnable – but has not yet received the national attention it deserves.  While Californians are divided on whether to repeal Prop 8 in 2010 or 2012, they can set aside their differences by helping us win in Maine.  If we prevail on November 3rd, it will be easier to take our rights back in California.

The fight for marriage equality has made crucial progress in the past six months – from a court victory in Iowa to legislative victories in Vermont, New Hampshire and Maine.  The American Taliban is scared of the inevitable trend toward justice, and views the upcoming Maine referendum as “ground zero” in this battle.  Groups like the National Organization for Marriage have already thrown massive resources into Maine, and are taking it seriously.  “The side that cares more will win,” said “No on 1” field director Monique Hoeflinger.

The LGBT community is aware that whenever marriage rights have been on the ballot, bigotry has prevailed.  Arizona rejected an anti-gay marriage amendment in 2006, but it threatened both marriage and domestic partnerships – and the campaign to defeat it focused on the latter.  Two years later, the right put another measure in Arizona that only banned marriage – and it passed by a 13-point margin.  In other words, winning a campaign in Maine at the ballot box will change the conversation – and help us repeal Proposition 8.

Everyone knows that defeating Prop 8 was winnable, but our side ran an awful campaign that – like Michael Dukakis – blew a seventeen-point lead.  It had a reactive message that did not anticipate or preempt attacks from the other side, failed to run an adequate field campaign that included California’s diverse constituencies, and suffered from an early complacency that led to its downfall.  But after meeting some leaders from Maine’s No on One campaign at the Netroots Nation conference in Pittsburgh last week, I am confident they have learned from our mistakes.

A Grassroots Campaign that is Proactive and Preemptive

Unlike in California, where gays and lesbians won marriage rights at the Supreme Court, in Maine the legislature and Governor passed it into law – less than three months ago.  It took an intense grassroots lobbying campaign to make this happen, and now the same Mainers who fought for their marriage rights are ready to defend them at the ballot box.  

On Election Day last November, marriage equality advocates stood outside polling places in Maine with pledge cards for the legislative campaign.  By the time the legislature voted six months later, they had identified 50,000 registered voters who support gay marriage – but what’s interesting is where most of them came from.  Lobbying efforts come down to persuading “swing” legislators, and most of them don’t represent liberal communities.  Most of the 50,000 identified supporters live in “swing” parts of the state, giving the campaign an advantage to make inroads in places that will decide this election.

Compare this with the “No on 8” field campaign in California, which focused almost entirely on gay neighborhoods in San Francisco and Los Angeles – while ceding the rest of the state to opponents.  Mobilizing your base is important (especially in a low-turnout election), but a winning campaign needs to have a visible presence in every part of the state.

“No on 8” also ran a reactive campaign that spent too much time responding to lies that the opposition hurled at us.  It was inexcusable to not anticipate the “gay-marriage-will-be-taught-in-public-schools” line, because it’s only been used as an attack from the right in every state that had a marriage amendment.  The “No on 1” effort has already planned a TV ad when the other side makes this argument.  And unlike in California, where we put a politician on the air (State Superintendent of Public Schools Jack O’Connell) to say it’s not true, the Maine campaign will counter that message with teachers and families.

People of faith have been part of the coalition for years – and are framing support for gay marriage in moral terms.  On the day after the California Supreme Court ruled for marriage equality, they had five press conferences throughout Maine lauding the decision.  This pro-active show of force actually put the religious right on the defensive.  If this is how they plan to run the “No on 1” campaign, it’s an effort worth giving your money to.

Not a Lot of Resources Required

At Netroots Nation, the “No on 1” campaign said they needed about $3 million to win a statewide campaign in Maine (“we’re a cheap date,” they said.)  All of us Californians laughed, because we spent $40 million last year only to have our marriage rights taken away.  But it’s not just how much money a campaign spends, but whether they use their resources wisely – and when the money comes in.  “No on 8” ultimately outspent the opposition, but too much of the funds came in late in the game – when there was a tangible fear of losing.  In Maine, it’s important to send a contribution before Labor Day – so the campaign can hire enough field directors that requires weeks of hard work.

Mainers have a “live-and-let-live” approach, but they don’t like outsiders trying to buy the election process.  Most of the “No on 1” money has come from Maine residents, in small contributions from supporters of the legislative campaign to pass marriage equality.  The opposition has already raised $343,000 – and all but $2,000 from four big donors: $160,000 from the New Jersey-based National Organization for Marriage, $100,000 from the Roman Catholic diocese of Portland, $50,000 from the Knights of Columbus and $31,000 from Focus on the Family Maine.  No sign yet if the Mormons are sending in their millions from Utah, but when they do I hope to see more creative YouTube spots like this one.

Finally, the “No on 1” campaign is inviting volunteers to come “vacation” in Maine – where they will put you up in the homes of supporters.  Help is especially needed during the first week of October, when early absentee ballots get mailed out.  Volunteers should go to the campaign website, and let them know when they plan to visit the state.  This will be a campaign mostly run by Maine residents, but unpaid assistance from those passionate for marriage equality are welcome.

In California, gay marriage supporters who plan to repeal Prop 8 at the ballot box are deeply divided between doing it in 2010 – or in 2012.  Equality California has endorsed 2012, in part because their donors do not feel confident winning in 2010 is possible.  But grass-roots supporters at the Courage Campaign want to try next year.  It’s a stupid internecine fight that threatens to hurt the LGBT community, when we should all be working together.

I’m undecided about 2010 or 2012, and am willing to be persuaded either way.  But there’s one thing I know for sure – defending marriage equality in Maine in 2009 will make it easier to repeal Prop 8, regardless of what year it gets on the ballot.  Californians who believe in marriage equality have a moral responsibility to help out the Maine effort.  Depending on my vacation schedule and budget, I plan to fly out there in a few weeks.

Paul Hogarth is the Managing Editor of Beyond Chron, San Francisco’s Alternative Online Daily, where this piece was first published.

Greetings –

We are writing to inquire about the recent fundraising activities of EQCA.  In early July, it was brought to our attention that EQCA had hired a professional fundraising corporation known as Grassroots Campaigns Inc (www.grassrootscampaigns.com).  Since then, we have heard numerous reports that this money was being raised with a script promoting 2010 – Several people on this list, including Stacey Simmons and Robert Polzoni can attest to this.  On August 5th, Melissa Staten, a director for Grassroots Campaigns, confirmed that her organization has raised $530,000 in the San Francisco Bay Area and over $ 1 million dollars statewide for EQCA’s “repeal of Prop 8 in 2010.”  We have a few questions as it relates to the money for 2010 and EQCA’s announcement later today:

A) Should EQCA announce that they are supporting and/ or in favor of 2010, will a portion of this money be used to pay for the additional research?  The Courage Campaign, along with Winner & Mandabach, have stated that we need to raise nearly $200,000 to conduct additional polling, research, and focus groups to solidify ballot language and a campaign plan.

B) On August 11th, 2009 at 2:31pm, Becky – director of the San Francisco office of Grassroots Campaigns Inc. (415-447-9396) – confirmed that money being raised is for 2010.  If EQCA announces 2012, we have two questions: 1) will the money that was raised using a script for 2010 be given to support the efforts of the grassroots moving forward or 2) will this money be refunded?  At the very least, people should be able to request a refund, if they wish, as numerous individuals were assured that their money was being used for 2010.

C) In addition to the million-plus dollars EQCA has raised since May, the Courage Campaign has raised over a $100,000 in a week’s time.  Regardless of a particular campaign date, it has become evident that significant funds can be raised at the grassroots level, despite major donor’s reluctance.

Our final question: what systems are in place to assure accountable and transparent use of funds being raised?  Perhaps this is a question better suited for the August 22nd campaign structuring meeting – but it is a question that the community should ask nonetheless.

Sincerely,

Yes! on Equality

In 1964, Stanley Kubrick produced the Cold War film Dr. Strangelove, or “How I Learned to Stop Worrying and Love the Bomb.”  By upholding Proposition 8, the California Supreme Court has learned to stop worrying and love the initiative process.  It’s an apt analogy, because today’s decision leaves an unchecked power of the voters to strike a “bomb” through our basic Constitutional protections.  Not only did the Court minimize Prop 8’s effect on the right to marry, using logic that contradicted last year’s decision on the same subject.  It set up a dubious distinction between “amendments” and “revisions” to the state Constitution, which will allow virtually any ballot measure to pass as a mere “amendment.”  Without adequate safeguards that a “revision” was meant to place, equal protection is no longer sacred – because the power of the ballot is supreme.  At the same time, the Court ruled that the 18,000 same-sex couples who legally wed last year are still married – because to invalidate these licenses would be an undue violation of due process and property rights.  While that was a wise decision, it remains a mystery why such a right is more important than equal protection.

California is famous for its wacky initiative process – where the voters get to decide on a myriad of complicated matters, much of which could arguably be better left to elected leaders.  But the grounds for overturning Prop 8 was not about the 48% of voters who disagreed with taking marriage rights away from same-sex couples.  It was that some rights are too important to be stricken by mob rule, and the state Supreme Court’s job is to protect these constitutional protections – even if a bare majority of the electorate (without safeguards) wants to change the Constitution.  The Court has declared “open season” on the rights of all minorities, setting a dangerous precedent for future elections.  Here’s why …

Court Contradicts Itself on the Term “Marriage”

In May 2008, the state Supreme Court ruled that same-sex couples have a constitutional right to marry – as a natural extension of the right to privacy, due process and the right to raise a family.  Now, the same Court says Prop 8 is not unconstitutional because it carves out a “narrow exception” to these rights.  It only changes the definition of “marriage,” not the rights or benefits that committed same-sex couples enjoy with domestic partnership – nor does it alter the right to raise a family.

This opinion clearly contradicts last year’s ruling – where the Court said the very term “marriage” was a necessary component, so that same-sex couples can have their family relationships accorded the “same dignity, respect and stature of others.”  What the Court effectively said today is that gay people didn’t really lose anything substantive with the passage of Prop 8.  But if true, they also did not gain anything important from last year’s Court decision.  Back then, the Court made it clear it was a crucial right.

The Unchecked Power of Voters to Change the Constitution

Granted, the Court will say Prop 8 changed the state Constitution – and thus last year’s interpretation is irrelevant and obsolete.  But while the people have “sovereign power” and can “alter or reform” the Constitution as they see fit, our framework does not allow them to make all changes to the state Constitution.  A minimum threshold of voters can collect signatures to put an “amendment” on the ballot, but only the state legislature – or a constitutional convention – can initiate a major “revision.”  And the Court failed to understand both the history and basic structure of this distinction.

Before 1911, California did not have an initiative process – and all “amendments” had to come from the state legislature.  Every state that distinguishes between “amendments” and “revisions” (and California based its constitution off New York) has a common thread – none of them allow the people alone to make the most profound changes.  An “amendment” to the California Constitution is there to “improve” the existing framework, but a “revision” would substantially alter its “substance and integrity.”  Even states that passed equivalents of Prop 8 only generally did so after the legislature put it on the ballot.

The Court said Prop 8 was not a revision because it “simply changes the substantive content of … one specific subject area – the … designation of ‘marriage.'”  It did not alter the “scope” of the Constitution, and only has a “limited effect on the fundamental rights of privacy, due process and equal protection.”  The Court even implied that only changes affecting a wide spectrum of our Constitution are protected from the whims of the public opinion – and explicitly said that a revision is not anything that “abrogates a foundational constitutional principle of law.”  Based upon the Court’s narrow definition, it is hard to see how any change to the Constitution would qualify as a “revision.”

Open Season on the Rights of Minorities

Prop 8 is a major change to the Constitution that cannot just be left to the voters, because it deprives equal protection to a specific minority group.  But the Court quietly dismissed this concern, because it was not the first time in California history that a majority took rights away from a minority.  In 1964, the voters passed a measure allowing homeowners to racially discriminate when selling their property – which was struck down in federal court.  In 1996, California passed Prop 209 to repeal affirmative action.  And in 1894, the state passed a measure to deprive voting rights for anyone who didn’t speak English.

How did the Court conclude that none of these ballot measures were revisions?  At the time, no one sued to have them repealed for that particular reason – a dubious basis to conclude that they were therefore proper “amendments.”  According to this Court, it is acceptable for the voters – without any scrutiny by the legislature or a constitutional convention – to amend the Constitution to repeal basic rights from a minority group.  

This creates a dangerous precedent. What if, after September 11th, California had passed an amendment requiring Muslims to travel with passes?  The Court dismissed such concerns as a “dubious factual premise of a highly unrealistic scenario of future events.”

But Property Rights are Protected …

If there is one bright spot from today’s Court decision, the 18,000 same-sex couples who wed before November 4th are still legally married – despite efforts by Kenneth Starr to convince the Court otherwise.  California law presumes that ballot measures are not retroactive, without clear and unambiguous proof that it was the voters’ intent.  But the Court also pointed out that these couples had acquired “vested property rights as lawfully married spouses,” and to suddenly take their licenses away would be a blatant violation of due process.

It is unclear why the Court believes the “will of the people” is more important than the equal protection rights of minorities, but not the due process of property owners.  If we are to take the Court’s logic on what constitutes a valid “amendment” and uphold the validity of Prop 8, anything that doesn’t obviously change the “scope” of the California Constitution can be enacted by the voters – without any restrictions.  By that rationale, due process would take a back seat – and the 18,000 marriage licenses would be null and void.

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.  He is the Managing Editor of Beyond Chron, San Francisco’s Alternative Online Daily, where this piece was first published.

Today we must turn anger into action.

It’s cold comfort to many that history is moving in the right direction, with five states already on their way to marriage equality. But it’s our job to make sure history moves faster towards equality here in California.

We must redouble our efforts in California to finally win this fight for equal rights. Please, take a moment today and lend your voice to this just cause.

Sign our petition for marriage equality.

Join the tireless efforts of the Courage Campaign and Equality California.

Let’s be respectful. But let’s be clear. We must start changing minds today. I know many of my fellow Californians may initially agree with this ruling, but I ask them to reserve final judgment until they have discussed this decision with someone who will be affected by it.

Please talk to a lesbian or gay family member, neighbor or co-worker and ask them why equality in the eyes of the law is important to every Californian. Please talk to local business leaders who know that this will cost jobs and make California less competitive. Please remember we all know someone who is hurt by this decision today. Please reach out to these friends, family members, co-workers and neighbors and discuss why this decision is wrong for California.

California, at its best, is a beacon of equal rights and equal opportunities. If we want to prosper together, we must respect one another.

That’s why we must resolve to restore marriage equality to all Californians. Let this work start today. Sign our petition and join the efforts of the Courage Campaign and Equality California.