How do you get voters in a supposedly tolerant state like California to vote to take away rights from people without making yourself look like a hateful bigot in the process? Simple – you cast yourself as a victim of hate, even though you’re the one trying to take rights away from people.

One of the most powerful weapons in the Yes on Prop 8 campaign’s arsenal was the argument that same-sex marriage rights would somehow limit religious or parental freedoms. The No on 8 campaign never effectively countered this, and this conservative victimology helped insulate Prop 8 supporters from being called to account for their bigotry.

As the marriage equality movement racks up victory after victory – Iowa, Vermont, and soon New Hampshire – the opponents of equal rights are plotting their counterattack. The National Organization for Marriage is running this creepy ad shown at right arguing that a “storm” is coming – that the “rights” of religious people and parents to teach hate and inequality are under attack by those damn liberals who want to turn all your children gay.

Their arguments are based on lies, and always have been – marriage equality in California wouldn’t have changed how preachers preach or how teachers teach, and Vermont’s new marriage law makes clear that religious freedom is still respected.

But these arguments are also powerful. Conservative victimology has been one of the key methods by which Prop 8 supporters have escaped responsibility for their actions or even acknowledging what Prop 8 was – an attack on the legal equality of thousands of Californians merely for their sexual orientation. When framed this way the Yes on 8 position becomes almost unassailable, immune to criticism. “They’re just protecting their freedoms,” we’re supposed to think, and not be allowed to ask them to face the realities of what they have done, not be allowed to criticize them for voting to take away equal rights and destroy existing marriages, and not be allowed to act with our own conscience by demanding equal rights for everyone. Each of those acts is cast as an aggressive and hurtful act, where the oppressed are cast as oppressors.

Pam Spaulding puts it well:

These folks have nothing left in the tool box after the Iowa ruling decimated the excuse that religious opposition should govern civil law. So now the folks at the National Organization for Marriage have decided to send out e-blasts and a new video that uses a multi-racial set of actors to portray the aggrieved heterosexuals affected by same-sex couples being allowed to marry.

You might laugh at these fundnuts, but they are crafty, and don’t mind continuing to promote outright lies and deception.

Jeremy at Good As You has an excellent video response:

We’re winning the battle for equal rights. But to ensure that equal rights prevail across the nation – and here in California – we have to push back against these lies.

UPDATED by Brian: It seems the audition videos tape was leaked, and it’s now on YouTube. Yay, fun!  Nothing makes you cynical like seeing a bunch of actors saying the same thing, because they, you know, really care about it.  Check the video (h/t CapAlert) over the flip.

(Now also in Orange – promoted by Brian Leubitz)

I’m doing my taxes today.  It’s always a fun weekend around the house. Or, well, completely devoid of fun is a better description.  At any rate, you all have been there so I don’t need to describe the emotions of the tax weekend.

But guess what? I get extra super duper fun! As one of the lucky 18,000 or so couples that got married in California, we get to also prepare a phony federal tax form that will not actually be filed.  Because somehow the federal government doesn’t really need to give full faith and credit to the marriage licenses issued to same-sex couples.

I posted the news on the book of faces today that I’d be doing the glorious chore of taxes, and friend of Calitics, Chad Jones, spoke up:

We paid an extra Gay Tax not being able to file our federal return jointly. It’s a total pain in the ass to have to do a phony federal return to base your state taxes on (which makes the Gay Tax glaringly obvious). And the FTB can’t handle electronic filing from same-sex couples so you have to mail it in and wait for your refund.

Like Chad, we too will be paying the gay tax. There is simply no other reason than our sexuality that we are paying this tax. I’m not going all anti-tax here, it’s just that I don’t see the reason that one couple should be treated differently than another for tax purposes.

Just as a reminder to all any judges who happen across the issue, this is actually in the constitution:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. (U.S. Constitution, Art. IV, Sec. 1)

But, really the failure of courts to enforce the full faith and credit is a bigger issue than taxes, it has a larger effect on our system of property generally.  In a very real way, that we don’t apply this clause allows people to escape valid obligations. It is a crack in the greater “Rule of Law.” Or, well, Harvard Law Professor Joseph William Singer said it a lot better just after the Massachusetts marriages were performed:

Now that same sex marriages have been occurring in Massachusetts for almost a year, the issue of interstate recognition is no longer merely a theoretical issue. Most scholars have either argued that the full faith and credit clause does not mandate recognition of same sex marriages or that it does so for limited purposes or for marriages of Massachusetts residents but not nonresidents seeking to evade their restrictive home state marriage laws. This article argues that the full faith and credit clause should be interpreted to require interstate recognition of same sex marriages validly celebrated in Massachusetts and that Congress does not have the power to deny such recognition under the “effects thereof” language of the full faith and credit clause. Rather than focusing on the rights of same sex couples to have their valid Massachusetts marriages recognized elsewhere, we should focus on the obligations inherent in the marriage relationship. Both Congress and the majority of states have passed so-called Defense of Marriage Acts (DOMAs). If these laws are constitutional, they effectively authorize partners in same sex marriages to relocate to other states and evade their obligations as spouses and parents under Massachusetts law. Those states have made themselves havens for fleeing debtors. Using traditional and modern choice-of-law analysis, as well as analogies to the law of divorce and corporate governance, this article argues that the full faith and credit clause should be interpreted to require recognition of marriages that are valid where celebrated to avoid inconsistent obligations, to allow free interstate travel and commerce, and to prevent the states from authorizing married partners to walk away from their concededly valid and persisting obligations under Massachusetts law. (Stanford Journal of Civil Rights and Civil Liberties)

Eventually, the issue of marriage equality will all get sorted out.  After all, the arc of history is long, but it bends towards justice. But in the interim, there is no “tax fairness” and the rule of law itself bends as the tortured logic of bigotry pushes it to its limits.

And so we wait on that arc to continue its bend.

Rational, Considered Legislating. But I’ll get back to that in a second.

The big news out of Iowa today is that the Iowa Supreme Court upheld a lower court decision striking down the state’s Defense of Marriage Act.  This is great news for the LGBT community, and really anybody who cares about equality and the rule of law.

You can catch the PDF Summary or full opinion at Iowa Politics. The opinion is strong in its analysis of the situation, such as dismissing tired arguments that marriage is simply for children:

Same-sex couples currently raise children in Iowa, even while being excluded from civil marriage, and such couples will undoubtedly continue to do so.  Recognition of this under-inclusion puts in perspective just how minimally the same-sex marriage ban actually advances the purported legislative goal.  A law so simultaneously over-inclusive and under-inclusive is not substantially related to the government’s objective.  In the end, a careful analysis of the over- and under-inclusiveness of the statute reveals it is less about using marriage to achieve an optimal environment for children and more about merely precluding gay and lesbian people from civil marriage.   (Varnum at 57-58)

And of the “stability of heterosexual marriages”:

While the institution of civil marriage likely encourages stability in opposite-sex relationships, we must evaluate whether excluding gay and lesbian people from civil marriage encourages stability in opposite-

sex relationships.  The County offers no reasons that it does, and we can find none. (Varnum at 60)

And, of course, the deciding paragraph gives me the chills:

Iowa Code section 595.2 is unconstitutional because the County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage.  A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution.  This record, our independent research, and the appropriate equal protection analysis do not suggest the existence of a justification for such a legislative classification that substantially furthers any governmental objective.  Consequently, the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.  (Varnum at 60)

This is an opinion worthy of our nation and of the topic.  I highly suggest you take a gander at it. Even if you don’t have a background in the law, it is well-written and explains the background well enough for everybody to understand the legal questions.  The logic persists here in California, despite the success of Prop 8. Or even because of the success of Prop 8. One of the questions that the court grappled with was the political power of the relevant group.  And the passage of Prop 8 here, in California, the loony Left Coast, shows that clearly. If we are to have equal protection, it must truely be equal, and it cannot be subject to political whims.

But, back to where I started.  The rational, considered legislating.  You see, in Iowa, a Constitutional Amendment cannot be placed on the ballot simply by gathering a slightly higher number of signatures. No, it must go through the legislature not once, but twice.  The good folks at Bleeding Heartland suggest that the large Democratic majority will likely resist any such efforts.

Instead of immediately subjecting these new rights to a vote of the people, the Legislature considers how this process will turn out to work in reality.  Iowans will see the sky doesn’t fall and that everybody won’t just run out of their marriages because the gays get to marry. They will see the moral fabric of society is stronger, not weaker.  And tomorrow will be better than today.

That, my friends, is how the process should work, if in fact a process of voting on rights should occur at all.  Sit back and think of what you do. Let the leaders you elect consider the policy options before you move forward.  A novel concept from our perspective, I know, but it certainly puts an exclamation on our own structural dysfunction.

We haven’t had a funny Prop 8 video here for a while, so here’s a really good one:

The Mormon Church went to great lengths to hide their invovlement in the Prop 8 campaign.  Sure, we all know that they were deeply engaged, but Fred Karger, of Californians Against Hate, alleges that they deliberately obfuscated their activities, in violation of California’s Political Reform Act.  Karger previously filed a complaint alleging unreported contributions, which the Mormon church later admitted and filed an amended report.

This one takes a slightly different angle. Karger argues that the Mormon Church set up an organization, the National Organization for Marriage, with the express purpose of passing Prop 8, and then funded that without properly reporting. While complete records aren’t available, it is believed that over $2 Million passed through NOM, with little reporting on where that money came from.

The pattern follows, almost eerily, the pattern that the Mormons used to pass a marriage amendment in Hawaii in the late 90s.  If you are interested in the Mormon Church’s involvement in the Prop 8 campaign, I recommend you check out the full letter detailing the NOM organization at the Californians Against Hate blog.

November 4th was a bittersweet day for our LGBT brothers and sisters in California. Even as we made history for electing a young black man named Barack Hussein Obama to the White House, a narrow majority of California voters chose to take away their right to legally marry. For them, it was one step forward, two steps back.

But here’s the thing, rather than accept defeat, they took to the streets. Not only in California, but nationwide. New LGBT leadership grew out of the ashes of thefailed “No on 8” campaignand taking a page from Obama, began a organized from the bottom up.

In Los Angeles, former Obama organizers (including my partner in the campaign, Mike Bonin) teamed up with the Courage Campaign to create “Camp Courage” – weekend workshops on marriage equality that borrow heavily from the “Camp Obama” model and the teachings of Marshall Ganz.

After taking the concept out for a successful one-day test drive in West Hollywood, the organizers took the show on the road: First stop, Fresno.

From today’s Beyond Chron.

It’s depressing to think – after having just lost an expensive and exhausting campaign – that repealing Proposition 8 could mean going back to the ballot.  It is unfair and unjust that a slim majority of California voters took a fundamental right away from a minority, jeopardizing equal protection.  But the state Supreme Court heard oral arguments on the City Attorney’s lawsuit yesterday, and the signs were very discouraging.  Justice Joyce Kennard (who last year voted to grant marriage equality) was hostile to the case against Prop 8, and Chief Justice Ron George was skeptical.  Not that there isn’t any hope: perhaps the extreme arguments made by Prop 8 lawyer Kenneth Starr will inadvertently sway the Court into recognizing the measure’s dangerous effects.  But no one should expect the Court to repeal Prop 8.  Activists must get ready for a 2010 proposition campaign as the next available remedy, however deficient a political solution that would be.  We must learn from the colossal mistakes of the past campaign, and a new generation of activists will make it happen.

Unlike the federal Constitution – which can only be amended by a two-thirds vote of the U.S. Senate and a three-fourths vote by the state legislatures – California can change its constitution by a simple majority vote of the people.  The state distinguishes between an “amendment” and a “revision” (with the latter requiring a higher threshold), but there is very little case law to flesh out the details.  Generally speaking, an amendment tinkers around the edges of the constitution – while a revision has a more profound impact.  Prop 8 abolished a fundamental right for a protected minority group (i.e., gays and lesbians), when a core purpose of the Courts and the constitution is to protect minorities.  If that doesn’t have a profound impact, I don’t know what does – since no rights are sacred.

The legal grounds to overrule Prop 8 are sound, but that doesn’t mean the Court would do it.  Roe v. Wade didn’t just happen because an all-male Supreme Court woke up one day to discover that women have a constitutional right to choose.  A mass movement worked for years to make this inevitable.  A political movement is necessary to overturn Prop 8, giving judges the “space” to do the right thing.  Even then, the courts are an inherently conservative institution that shy away from controversy – and rely heavily on caution, tradition, legal and historical precedent.

Shannon Minter of the National Center for Lesbian Rights (NCLR) had barely started his oral argument yesterday morning, when Chief Justice Ron George interrupted.  “Are you saying the passage of Prop 8,” said George, “also took away – beyond the label of marriage – the core of the substantive rights of marriage?”  Minter gave an admirable response, but the question wasn’t a good sign.  George had written the marriage decision that argued the term ‘marriage’ was essential to enjoying its rights and dignity, but now he was parsing it out as just a word.  And he’s the “swing” vote on the Court’s 4-3 split.

Associate Justice Joyce Kennard – who had also supported the Court’s marriage decision – then piled on, maintaining an adversarial tone throughout the three-hour proceeding.  “What Prop 8 did was take away the label of marriage and its applicability to same-sex couples,” she said, “but it left intact our holding that sexual orientation is a suspect class.  Is it still your view the sky has fallen in and gays and lesbians are left with nothing?”

By far the most revealing exchange was when Deputy City Attorney Therese Stewart began to mention Kennard’s opinion last year.  Kennard cut her off, became extremely defensive and said: “in the Marriage cases, the Court was asked to do what it normally does – interpret a statute.  Here, we have a body of case law that talks about amendments and revisions.  We are talking about the power of the people – an inalienable right.”  The right of voters to change the Constitution was Kennard’s main concern throughout the arguments.  “How can the court willy nilly disregard the will of the people,” she asked.

Kennard also zeroed in on the precedent of an earlier case, where voters were allowed to restore the death penalty by passing a constitutional amendment – after courts had thrown it out as cruel and unusual punishment. “It would appear to me,” she stated, “that life is a fundamental right.”  But unlike equal protection or fundamental rights, the definition of cruel and unusual punishment is “public standards of decency” (i.e., will of the voters.)  As attorney Raymond Marshall said, “cruel and unusual punishment is unique because it’s an issue that can be decided by the people.”  He also added that voters did not single out a suspect class to receive the death penalty, and the matter still has judicial review.

Chief Justice George repeatedly focused on two points throughout the oral arguments, which don’t bode well for the result.  When Shannon Minter explained how rights cannot be taken away by mere amendments (because an amendment must be consistent with the Constitution’s general principles), George characterized that logic as a “one-way street.”  How can an amendment extend rights, he asked, but then not take them away?  He also repeatedly asked if the problem was with how California changes its constitution, and that maybe the amendment process could just be changed – a “political solution.”

As I stood in Civic Center Park to watch the proceedings on a satellite video, George’s skeptical queries – peppered with Kennard’s “questions” that were actually long-winded statements – gave me a sinking and depressing feeling that we were going to lose.

If there’s a glimmer of hope, it may be from the other side’s presentation.  Kenneth Starr (of Monica Lewinsky fame) gave the oral argument for upholding Prop 8, and blurted out a few legal points that – if drawn to their conclusion – would create an awful precedent.  By arguing that Prop 8 could not be overruled, he said: “the people are sovereign … even if unwise.  And they can tug at equality.”  In other words, no protections for minorities are sacred – as long as a majority of the voters choose to enshrine it in the constitution.

Can the Court reconcile the precedent of upholding Prop 8, with Ken Starr’s notion that we can “tug at equality”?  When asked if rolling back domestic partnerships for gay couples would also be a valid use of the initiative process, Starr said it would be an “acceptable amendment” – which may have disturbed some of the Justices.  It was clear from oral arguments the Court will not go along with Starr’s request to invalidate the 18,000 marriage licenses of same-sex couples who wed before the passage of Prop 8, but how can they recognize it as a valid amendment without incorporating Starr’s logic?

Don’t count on the Supreme Court to do the right thing – certainly not after today’s oral arguments.  If we’re going to win back marriage equality, it may have to be at the ballot box in 2010 – after an organized, grassroots effort collects signatures and then passes a constitutional amendment to repeal Prop 8.  Everyone agrees that “No on 8” ran an awful campaign, and a whole new crop of activists who felt alienated by its top-down structure are coming out of the woodwork to create a better future.  The trick is to keep that energy going.

What’s amazed me is how many groups organically sprouted out of Prop 8’s passage.  Join the Impact is still going on strong, and One Struggle, One Fight is planning a March to Sacramento at the end of the month.  The Courage Campaign is building the grassroots infrastructure we’ll need to run a successful statewide campaign, and a new group – And Marriage for All – is doing the critical outreach to communities of color.  And I’d be remiss not to acknowledge what Marriage Equality USA and Molly McKay has done for years, cultivating a network of grassroots chapter leaders through the state.

I won’t lie.  The prospect of having to wage another statewide electoral campaign for me is overwhelming, exhausting and depressing.  The lawyer in me still yearns for “justice in the courts,” with a majority of Justices concluding Prop 8 was not a proper amendment.  It would make those right-wing blowhards explode, because we’d have marriage equality in this state for good – and they could never take it away at the ballot box again with lies and distortions.  But I know that if we must go back to the voters, we’ll never walk alone.  A whole new army of allies have joined us, and this time we’re determined not to lose.

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.

The California Supreme Court finds itself center stage tomorrow when it will hear oral arguments on whether it should uphold Proposition 8’s ban on same-sex marriage.

The case touches the heart of our democracy and poses a profound question: can a bare majority of voters strip away an inalienable right through the initiative process? If so, what possible meaning does the word inalienable have?

The state faced a dilemma like this before. In 1964, 65 percent of California voters approved Proposition 14, which would have legalized racial discrimination in the selling or renting of housing. Both the California and U.S. Supreme Courts struck down this proposition, concluding that it amounted to an unconstitutional denial of rights.

As California’s Attorney General, I believe the Court should strike down Proposition 8 for remarkably similar reasons – because it unconstitutionally discriminates against same-sex couples and deprives them of the fundamental right to marry.

Some vigorously disagree. That’s the position of Ken Starr and those who argue that a simple majority can eliminate the right to marry. But such a claim completely ignores California’s history and the nature of our constitution.

Fundamental rights in California are recognized and protected by our constitution, which declares in Article I, Section 1 that “all people are by nature free and independent and have inalienable rights” and “among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

These fundamental premises of a free people were declared when the constitution was first adopted. The initiative process came much later in 1911, when the immediate concern was to give the people power over the railroads, which were seen as having a stranglehold over the legislature. In creating this initiative process, there was no discussion or any evidence of intent to permit a simple majority of voters to take away the pre-existing rights deemed inalienable by Article I.

In 2008, the California Supreme Court was faced with the question of how the values enshrined in Article I apply to same sex marriages. It concluded that the concept of “liberty” includes the right to form the enduring relationship called marriage and that no compelling interest justified denying this right to same sex couples. Just like the right to be free from discrimination in housing, citizens have the right to be free from discrimination in state-granted marriage licenses.

With this Supreme Court decision, same sex marriage has the protection of Article 1 and, like other inalienable rights, cannot be taken away by a popular vote – whether it be 52% (as was the case in Proposition 8) or 65% (as it was for Proposition 14).

I believe, therefore, the Court must conclude as I have that Proposition 8 is unconstitutional and should be stricken.

Jerry Brown is California’s Attorney General. Become a supporter of Jerry on Facebook or sign-up on his website (www.jerrybrown.org/join).