Judge Vaughn Walker has set a January trial date and an October hearing for pretrial motions in the Prop 8 litigation in federal court.  Particularly of note is his opinion on who gets to intervene in the litigation. The old school gay rights groups, including the ACLU, NCLR, and a few others, were rejected, while the City of San Francisco was allowed to intervene:

But the judge allowed intervention by San Francisco, which had also challenged Prop. 8 in the state court. He said the city brings a unique perspective to the case, with its claims that denying marriage to same-sex couples leads to higher government costs in health care and social services. (SF Chronicl 8/19/09)

Judge Walker also rejected Randy Thomasson’s crazy bigots of the California Campaign For Against Families. See, they thought they should get in on the action because the Prop 8 people were too gay friendly. They wanted to ban domestic partnership.  Looking back, it’s kind of too bad that ol’ Randy didn’t win that dispute. An initiative also outlawing domestic partnership would have gone down handily.

Also of note on this case today was a New York Times Story on Ted Olson’s process to becoming an advocate of marriage equality. The whole thing is worth a read, if only to explain the enigma that is Ted Olson. Olson lines up his position on marriage equality with his position on affirmative action (he fought a long legal battle against it) and his view on civil rights. It turns out that even during his time in the Reagan and Bush II administrations, he was an advocate for civil rights for the LGBT community. Interestingly, his opponent in this case, Chuck Cooper, was Olson’s replacement at the Office of Legal Counsel in 1984.

It also gives a bit of background on his legal thinking on the case.

Mr. Olson points to two more recent Supreme Court cases.

The first is a 1996 decision in which six of the nine justices, citing equal protection grounds, struck down an amendment to the Colorado Constitution that stripped gay residents of existing civil rights protections. This, Mr. Olson argues, is similar to Proposition 8’s negating the California Supreme Court decision that recognized the rights of gay couples to marry.

The second is the court’s 6-3 decision in Lawrence v. Texas, striking down laws criminalizing sodomy in 2003. Not only did the majority find that Texas had no rational basis to intrude into private sexual behavior protected by the Constitution’s due process clause, it also declared that gay men and lesbians should be free to enter into relationships in their homes and “still retain their dignity.”

Given Olson’s stature, this case could become more interesting than initially thought. While getting the 5 votes on the Supreme Court will be challenging, totally discounting it would be a mistake.

I waded into this conversation a few days ago, and though I might be leaning just slightly towards 2012, I am still a bit mixed on this one. But the sides are full of emotion.  There is the emotion of wanting to return to the ballot right now. To not rest and to fight right away.

On the other side, there is some strong emotion.  There is a very real fear that if we go back to the ballot, that we will move in the wrong direction. There is concern that we will not have the resources that we need to actually compete, and that we’ll have to deal with the CW-ish 3 strikes and you’re out theory of ballot measures. (Don’t tell that to the parental notification people)

Nonetheless, there is one player in this fight that is bigger than the rest: Equality California.  They are the biggest LGBT organization in the state, and while they might have lost some of their luster in the Prop 8 debacle, they are still clinging to primacy.  So, when they released their “Roadmap to Equality” today, people paid attention.

First, they start with this premise:

We also surveyed our membership prior to the Court upholding Prop 8 and new polling being released, and found that a majority of those who responded supported going back to the ballot in 2010, although the vast majority of our members either didn’t vote or were undecided.

Well, that’s all well and good, but the immediate discounting of their memebership kind of puts them in the category of an insider, rather than a grassroots organization. That’s not inherently bad, but certainly worth noting.

And in the end, they come up with a plan favoring 2012:

We have one more chance (in the near-term) to get this right and win. Though extremely tempting, we do not believe a 15-month campaign gives us the time to do all that is required to do it right. We are not operating in isolation – our opponents are ready; they are passionate; they know which messages worked for them last go-around; they know the 2010 electorate is about four percentage points better for them; and they know where to find infrequent voters who support their position (conservative churches).

On the other hand, we have a dramatically changed movement; organizations that need to figure out how to work well together; a funding environment that is extremely difficult; a stronge sense from various organizations working in communities of color that the work cannot be done effectively in their communities in 15 months; an issue that is more effectively conveyed in a cultural, rather than a political, context; and the need to do extensive work to revamp our messaging. We recommend that the LGBT and allied community get behind a 38-month campaign to win marriage back in November 2012.

But they are not the only player in this, so the more pressing concern is what happens if it qualifies in 2010? EQCA seems to discount this in their public statements to bloggers and the media, but it isn’t really that much of a longshot. They seem to take the tack that one part of the community can go one way, and the other can go another.  I’m not sure this is true; it more sounds like a recipe for disaster to me.

Peep the whole report over the flip.

EQCA-WINNING_BACK_MARRIAGE_EQUALITY –  

I waded into this conversation a few days ago, and though I might be leaning just slightly towards 2012, I am still a bit mixed on this one. But the sides are full of emotion.  There is the emotion of wanting to return to the ballot right now. To not rest and to fight right away.

On the other side, there is some strong emotion.  There is a very real fear that if we go back to the ballot, that we will move in the wrong direction. There is concern that we will not have the resources that we need to actually compete, and that we’ll have to deal with the CW-ish 3 strikes and you’re out theory of ballot measures. (Don’t tell that to the parental notification people)

Nonetheless, there is one player in this fight that is bigger than the rest: Equality California.  They are the biggest LGBT organization in the state, and while they might have lost some of their luster in the Prop 8 debacle, they are still clinging to primacy.  So, when they released their “Roadmap to Equality” today, people paid attention.

First, they start with this premise:

We also surveyed our membership prior to the Court upholding Prop 8 and new polling being released, and found that a majority of those who responded supported going back to the ballot in 2010, although the vast majority of our members either didn’t vote or were undecided.

Well, that’s all well and good, but the immediate discounting of their memebership kind of puts them in the category of an insider, rather than a grassroots organization. That’s not inherently bad, but certainly worth noting.

And in the end, they come up with a plan favoring 2012:

But they are not the only player in this, so the more pressing concern is what happens if it qualifies in 2010? EQCA seems to discount this in their public statements to bloggers and the media, but it isn’t really that much of a longshot. They seem to take the tack that one part of the community can go one way, and the other can go another.  I’m not sure this is true; it more sounds like a recipe for disaster to me.

Peep the whole report over the flip.

EQCA-WINNING_BACK_MARRIAGE_EQUALITY –  

The LA Times just released a new poll of LA residents on a number of questions. Today, they released their results on marriage equality:

In the state’s continuing political battles over gay marriage, both sides are targeting Latino voters, and a new Los Angeles Times poll illustrates why. Overall, the poll showed, a substantial majority of voters in Los Angeles support the right of same-sex couples to legally marry, with 56% in favor and 37% opposed. (LAT 6/19/09)

In the Prop 8 voting, LA County was almost exactly split, so this is progress. Still, if Prop 8 taught us anything, it’s that you have to take polling numbers with a grain of salt.  Apparently people like to tell pollsters they are voting for marriage equality, but when they get to actually filling out their ballots they change their minds.  

On the crosstabs, we once again see that marriage equality will not be an issue in a few years. Voters 18-29 support marriage equality at a 66-29 clip, voters 50-64 supported at a 55-39 rate.  The only group to oppose equality are seniors. Those over 65 are at 43-48.

Along ethnic lines, white voters supported at 68-27, Latinos split 45-46, and African-Americans opposed at 37-54.

All in all, this poll is relatively good news, but there is a lot of work left to be done.

As I woke up yesterday morning and scanned the morning headlines, one thing jumped out at me: there were lots of stories about the Fresno counter-protests against marriage equality. Take this one from the LA Times:

In Fresno, about 3,000 demonstrators — the same number who turned out the day before on the other side — were told not to accept being called bigots because they support traditional marriage.

“We know we’ve been called hate-mongers. That’s not what we are,” said Jim Franklin, pastor of Cornerstone Church, just after the rally.

“We are people who believe in our values.”

With all of the wonderful planning and hard work that went into MITM4E, it is disappointing to see this kind of story in the media.  But one of the more frustrating aspects was that it didn’t have to be this way.  In many ways, we are inflicting our own wounds.  We must think about the language and images that we present. Demonizing our opponents might feel good, but it doesn’t actually help us get to our goals.  Calling people bad names validates the right-wing worldview that we are somehow out to get them.

The fact is that a large majority of marriage advocates aren’t holding signs comparing pastors to outrageous historical villains.  If we are going to win a YES campaign, we are going to need to run a positive campaign with messages that focus on the benefit to the state of marriage equality.

Unfortunately, the timing of Meet in the Middle for Equality gave the opponents a boost. They were able to hold their rally on Sunday, grab the media who was already in town for the Saturday rally, and get the media coverage on a better news day, Monday.  It’s unfortunate, but the timing favored those who oppose marriage equality.  See also: San Diego U-T, AP via Google, CBS-Fresno. On the flip side, there were some great press hits, like this one in E!, and this one from the Chronicle.

I’m not trying to say that the event wasn’t successful. I think the concept of meeting in one place to discuss our issues and to work for true marriage equality is a solid one.  My point is that we need to be reaching out as much as possible, rather than picking fights.

The key thing is that while rallies are nice and important in mobilizing our friends, the hard work is still yet to come. If we want to win, we have to do it through the hard field work that we really lacked last summer. That means knocking on doors and making personal contacts, perhaps through the Courage Campaign’s Equality Teams. That means making the phone calls, and talking to your friends, neighbors, acquaintances, that guy you see on the train who gets really emotional about his bejeweled games, and well, maybe your family too. Despite all the hoopla and the hype of big rallies with celebrities and inspiring messages, it’s the one-on-one that gets us the votes. The organizing angle was stressed at MITM4E, but as we proceed towards an initiative, we cannot let that get lost in the shuffle.

For a long time, the LGBT community has avoided bringing a federal claim regarding marriage equality.  That will change tomorrow when Ted Olson, former solicitor general under W, and David Boies, his rival in Bush v. Gore.

In a project of the American Foundation for Equal Rights, Olson and Boies have united to represent two same-sex couples filing suit after being denied marriage licenses because of Proposition 8.

Their suit, to be filed in U.S. District Court in California, calls for an injunction against the proposition, allowing immediate reinstatement of marriage rights for same-sex couples.

The California Supreme Court ruled in May 2008 that state law prohibiting same-sex marriage was unconstitutional under the privacy, due process and equal protection guarantees of the California Constitution. (LA Times 5/26/09)

Lamda Legal and other national LGBT legal organizations have explicitly stayed away from pressing this in federal court in order to stay away from the conservative federal courts. But, I suppose it had to happen sometime. The likelihood of success seems slim at this point, especially for the injunction. In all likelihood, we’re going to fight Prop 8 at the ballot.

That being said, we are right on the underlying argument: LGBT couples are denied the equal protection of the law.

UPDATE (by Be_Devine): Interestingly, Boies and Olson filed their lawsuit last Friday, before the California Supreme Court even decided the Prop 8 cases.  They filed the case in the Northern District of California in San Francisco, and the case was assigned to Judge Vaughn Walker.  Judge Walker currently the Chief Judge of the Northern District.  He was nominated by President George I in 1989.  Reagan nominated him earlier, but his nomination failed.  He endured anger from the left because of his membership in the Olympic Club, a private club that was, at the time, all-male and for representing the U.S. Olympic Committee in its suit to stop the use of the term “Gay Olympics.”  Judge Walker has, however, publicly called for the legalization of drugs.  He is considered a conservative judge, but if anything, he is unorthodox.

UPDATE by Brian: I’ve posted the complaint over the flip. You can also find it here.

boies complaint – Get more Business Documents  

Calitics can be very 30,000 feet. We look broadly at the policy issues that face Californians, point out what’s good, what’s bad, and what’s stupid.  On occasion it turns personal, in that one member of our community or another is affected by the decisions made in Sacramento and throughout California politics. I’ve seen people struggle with EDD, and people get laid off and furloughed. These are all very real and poignant to me.

But the decision to uphold Proposition 8 deals a devastating blow to so many Californians, and it does for me. Marriage equality is really a whole lot less about any one specific marriage, my own or any other, than about the fact that the state draws a line between a marriage between those of the same gender and an “opposite marriage” as Carrie Prejean likes to say. In a very real way, the Supreme Court said today that second-class citizenship is sufficient for a suspect class.  

More broadly, this decision strikes at the heart of California’s equal protection clause. It is far reaching in that it allows the people of California to vote on people they do or do not like.  It turns our bedraggled system of initiatives into a high school popularity contest, where the cool kids get to do as they like. Or, as Justice Moreno summed it up:

The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities.  It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. (Justice Moreno’s dissent, at 2)

Yes, this does affect me personally. Sure, sure, my marriage is still valid, but frankly so what? My marriage now carries an asterisk. A footnote, an exception that only mocks those who bear it. What a prize, I get to keep using the word “marriage” but I’m simultaneoulsy slapped across the face.

Ultimately, this too shall pass. At this point, it is merely a question of when Prop 8 will be repealed.  It is a question of campaign strategy, and of polling, and of money. But never doubt that this decision was an anachronism before the ink was dry. It is a stain upon our legal heritage, but a stain that can be smudged, with enough hard work, into something that we can point to as a moment of transformation through adversity.  

Because now it is up to us to turn that stain upon our legal system into a piece of art worthy of the masters at the ballot. It is not enough to merely state that we oppose Prop 8. We must do the very tough work to defeat the measure. We must build a campaign structure that combines the energy of the grassroots support for marriage equality, but also the best lessons from campaigns in the past. We must have a structure that is responsive, yet nimble. Our failures in the past must be a lesson.

But, this is the last blow of a dying effort.  We’ve tasted marriage equality here. We have it elsewhere. As Eva Patterson states in the video, life will go on. We will have to work harder and smarter in the future, but the days of such nonsense will get rarer and rarer. Because some truths really are self-evident:

But even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the California Constitution since 1849.  Promising equal treatment to some is fundamentally different from promising equal treatment to all.  Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment.  Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights. (Justice Moreno’s dissent, at 6-7)

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.  

Here’s the full decision, as the court’s site can be a bit janky :

California Supreme Court ruling on Proposition 8 –

In the spirit of helpfulness, here is a link to the Supreme Court’s Prop 8 High Profile Cases page. You’ll find the decision posted there in just under an hour.

UPDATE by Dave…I guess we can all go home, because Tommy Christopher already posted his story on the ruling at 8am, two hours before the opinion is released. (h/t msblucow)

UPDATE by Dave: The egg stays off Tommy Christopher’s face, as the Court upholds Prop. 8 by a 6-1 count, with Judge Moreno the only dissenting vote.  The judges unanimously uphold the 18,000 existing marriages.

UPDATE by Robert: The decision is about as bad as it can get – the logic used to uphold Prop 8 is everything Ken Starr hoped it would be. Two key excerpts:

Contrary to petitioners’ assertion,

Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases – that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage”  (Marriage Cases, supra, 43 Cal.4th at p. 829).  Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion.  Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

And the clear embrace of the Starr Doctrine:

Neither the language of the relevant constitutional provisions, nor our past cases, support the proposition that any of these rights is totally exempt from modification by a constitutional amendment adopted by a majority of the voters through the initiative process.

To the CA Supreme Court, voters can do whatever the fuck they want to via the initiative process.

CA is officially broken.

UPDATE by Dave: State Senator Mark Leno, who wrote the two gay marriage bills passed by the legislature and vetoed by Arnold Schwarzenegger, has released a statement.  So has Sen. Feinstein, CDP Chair John Burton, House Speaker Pelosi and Lt. Governor Garamendi.  I’ll catalog them on the flip:

UPDATE by Brian:I’ll post videos from SF City Attorney Dennis Herrera’s press conference as soon as I can upload them.

Sen. Leno:

“Today’s decision is extremely disappointing for California and hurts thousands of caring couples who wish to make lifelong commitments to one another through marriage. Let today’s decision be a rallying cry for all Californians who believe in equality and fairness, and encourage thousands more to stand up and fight the pervasive injustices LGBT people face in our community and our nation.”

“The issue before this court was much greater than marriage equality. The question asked of our justices goes to the core of our society. Can a majority vote undermine a foundation stone of our constitutional democracy, equal protection under the law? Today our highest court ruled that minorities do not matter.”

“Through our disappointment, we will still find hope and encouragement, including the 18,000 couples whose marriages in California remain secure and protected today. Through our sadness, our resolve to fight for justice and equality only grows stronger. Love is an unstoppable force, and equality is right around the corner.”

Speaker Pelosi:

Today’s ruling by the Supreme Court in support of Proposition 8 is deeply disappointing because this ballot initiative takes away individual rights.

I have long fought for equality for all of California’s families and will strongly support efforts to restore marriage equality in California, so it can join the ranks of states such as Iowa and Vermont.

Lt. Gov. Garamendi:

Today we lost an important battle, but on this disappointing day, it’s worth remembering that the final outcome of this struggle has already been determined. Time is on our side, and Californians will one day soon repeal Proposition 8. Patti and I have been married for 43 years, and we stand shoulder-to-shoulder with the LGBT community and their allies as they work to convince the electorate that all Californians, regardless of sexual orientation, deserve access to marriage and equality. While we will always face roadblocks, our society journeys down a path of increased equality under the law.

Sen. Feinstein:

I know today’s decision is a tremendous disappointment for many people. But I also know that the opinions of Californians are changing on this issue, and I believe that equal marriage rights will one day be the law in this state. This is already the case in Connecticut, Iowa, Maine, Massachusetts and Vermont. So, I believe this issue will come before the voters again, and I am very hopeful that the result will be different next time.

Today’s State Supreme Court ruling also declares that the 18,000 same-sex marriages that have already taken place in California are valid, and I believe these marriages will allow people to see for themselves that marriage equality is a step forward for California and not a step back.

Chairman Burton:

Today’s decision, while heartbreaking, doesn’t end the historic struggle for marriage equality. It renews our dedication to making sure all California families can again enjoy the dignity, commitment and responsibility of marriage.

I commend the California Supreme Court for validating the rights of the 18,000 lesbian and gay couples who married last year before Proposition 8 passed.  These couples and their children will continue to enjoy the full security and legal protection of marriage.    

Within the next few years, I know California will restore legal, civil marriages for gay and lesbian couples.  The California Democratic Party will play a leading role in ending marriage discrimination in California and I look forward to the day when that happens.