You might have noticed all the marches around the state and the nation after the passage of Proposition 8.  Join the Impact’s marches certainly made the issue visible. Well, a few organizers have gotten together to try to replicate the success of the Great American Boycotts aka “Day without Immigrants” by organizing “Day without A Gay.”

The worldwide media attention surrounding our massive grassweb efforts for gay rights has been tremendous.  Join the Impact was a HUGE success and will continue to thrive because of our efforts. We’ve reacted to anti-gay ballot initiatives in California, Arizona Florida, and Arkansas with anger, with resolve, and with courage. NOW, it’s time to show America and the world how we love. Gay people and our allies are compassionate, sensitive, caring, mobilized, and programmed for success. A day without gays would be tragic because it would be a day without love.

On December 10, 2008 the gay community will take a historic stance against hatred by donating love to a variety of different causes. On December 10, you are encouraged not to call in sick to work.  You are encouraged to call in “gay”–and donate your time to service! December 10, 2008 is International Human Rights Day. CLICK HERE to join us, and search or add to the list of human rights organizations that need our help RIGHT NOW.

At the same time, pollsters and demographers are predicting that Prop 8 won’t last all that long. In an article in Capitol Weekly, Rick Jacobs of the Courage Campaign echoes a sentiment felt around the state: We will be ready for another fight in 2010. The Public Policy Institute of California’s demographer Hans Johnson puts its outer limit at 10 years.

“I don’t know if I’d say two years,” Johnson said. “When you look at the age structure, there is no doubt that sometime in the next 10 years, the votes of California will accept, in the majority, gay marriage.”

In the end, the right wing has bought themselves a few years. But what was their real return? It is not like they really could use the boost for McCain’s chances here that came with a Prop 8 turnout. And it’s doubtful they even knew or cared about the other down-ballot races (Bill Hedrick anyone?). No, this wasn’t some sort of strategery, it was bigotry for bigotry’s sake.

So what did they win? They won the right to be the laughingstock of history.  Yes, you too can be a modern day George Wallace. When this book is written, and this chapter of the LGBT civil rights fight comes to a close, the only real losers are those who stood in the way of justice.

Despite threatening weather, organizers estimated that nearly 5,000 people came out to City Hall in Boston, MA to stand together as supporters of marriage equality.  Organizers, including local politicians, leaders with Mass Equality, and U.S. Congressional Representatives Rep. Nikki Tsongas and Rep. Edward Markey all spoke to the crowd.  

Massachusetts made history in 2004 when it became the first U.S. state to legalize same-sex marriage.  That thought was not lost on organizers today, many of whom traveled to California in the lead up to the vote on Proposition 8 to help with the No on 8 campaign.  State Rep. Carl Sciortino read from the Constitution of the State of California, “All people are by nature free and independent and have certain inalienable rights.”  Thus launched the demonstration.

Some quotes and highlights:

Rep. Nikki Tsongas (D-Mass.): “We are a partner with everyone across the country when it comes to bringing about marriage equality.”

State Rep. Byron Rushing: “I am here this afternoon because we are engaged in struggle.  If there is no struggle, there is no progress.  We are here to struggle.  In this democracy, marriage is a civil institution, and in a democracy, all civil institutions must be open to all who qualify.”

Rep. Edward Markey (D-Mass): (Reflecting on the fact that gay marriage is now illegal in California, while it is legal here in Massachusetts) “There is one thing that distinguishes Massachusetts from California on the issue of gay marriage.  We are right, and they are wrong! … Gays should have the same rights as straights.  As God’s children, they should have the same rights straights have.  Everyone is entitled to full rights under the U.S. Constitution, so now we engage in this great struggle.  … They asked the ancient Greek philosopher when we would know full and true justice.  And he answered: We would know true justice when all of those who have not been harmed are as angry as those who have!”  

Gary Daffin (LGBT political activist and Executive Director, Multicultural AIDS Coalition): “Here in Massachusetts, we wanted our brothers and sisters in California to wake up after the Election and relax and feel at home in their country.  It took Black people 400 years for us to feel at home in our own country.  It might not take the LGBT community 400 years, but we need to keep fighting.”

Heather Baker (special ed teacher and Boston LGBT rights activst): “We are the American family, we live next door to you, we teach your children, we take care of your elderly. We need equal rights across the country.”

Even though the weather wasn’t picture perfect, the scene outside of Boston City Hall was.  And yeah, that may sound cheesy, but the energy level at today’s “Join the Impact” rally in Boston gave me faith that we can build this national movement to ensure marriage equality, and work to foster LGBT rights in all 50 states.

To view a set of photos from the Boston “Join the Impact” rally, go to: http://www.flickr.com/photos/3…

To view a few You Tube clips from today’s event, go to:

http://gayrights.change.org  

Yesterday, the Yes on 8 gave their somewhat premature victory speech. While I think the odds are tough for us to come back in the absentees, it doesn’t look good. Either way, it is what it us. They have the numbers right now on their side. Say what you will about discrimination being written into our constitution, or the threshhold necessary for said constitutional graffiti, we only have this from a statement from the No on 8 campaign:

Based on turnout estimates reported yesterday, we expect that there are more than 3 million and possibly as many as 4 million absentee and provisional ballots yet to be counted.

Here’s hoping for a Dewey defeats Truman moment, but I think they are a bit optimistic about those numbers.  Turnout cratered after the polls closed on the east coast and people started learning about Obama’s success. My guess is that turnout will end up around, or slightly below, the 2004 total of 12.6 million. That’s substantially less than Field’s estimates of 13.6 million, but still much more than the 10.3 million votes currently counted in the presidential election.  So, the fat lady has yet to sing on Prop 8, despite the AP and the Yes campaign.

That being said, the legal response to any prospective Prop 8 victory has already begun. First, there’s the issue of retroactivity.  Jerry Brown said over the summer that he thinks it isn’t retroactive, and the ACLU is backing that position. We probably won’t see a challenge to that until we have some real-life facts to challenge that on. I’m not sure when that will happen, but I can’t imagine the right-wing will want to just leave this hanging for too long.

Then there’s the bigger question of whether Prop 8 is valid at all.  Back in June/July, ACLU, EQCA, NCLR, etc, filed a lawsuit regarding whether Prop 8 was a revision or an amendment.  There is a big difference there. Revisions can only be accomplished through a constitutional convention and lots of 2/3 votes, while amendments require a bare majority at the polls.  Yeah, it’s a big deal.  

Before I go on, I’ll say this.  It’s at best a 50-50 shot, and that might be generous.  Not that we have a weak case, but what is critical here is that this will take monumental courage from our Supreme Court.  As you probably know, our Court faces election, and a decision in favor of marriage here will open them up to even more electoral challenges. Rose Bird is your big case there. However, the Justices should know that if they follow their convictions, and the case law set down before them, the LGBT community, as well as the greater progressive community, will come out in force in support of these Republican judges. We will give them money, and we will support their reelection to the Court.  Rose Bird was a lesson that we shouldn’t forget.

Let’s review the law, over the flip…

I’m just going to bring back my analysis from my previous post, with a few edits here and there. But there is a new Petition to the court.

What’s the deal with this revision argument?

Alrighty, this really goes to the heart of the matter. So, what is a “revision”? Basically a revision is a change to the “underlying principles” of the Constitution. If the Court determines that the question at issue affects the underlying principles of the California Constitution, the initiative must go through a different process. A revision requires a 2/3 vote of both houses of the Legislature or the convening of a Constitutional Convention (a process that I won’t go into here). The revision then must be ratified by the people. Obviously this initiative hasn’t gone through either process.

But what is an “underlying principle”, you ask? Well, good freaking question! There have been only a few cases which have actually dealt with this.  A few months back Killer of Sacred Cows wrote a recommended diary at dKos and crossposted here about an article by Kevin Norte (and a follow-up), a research attorney in the LA Superior Court.

In other breaking news, there is no such thing as a free lunch. This will be a tough case for Chief Justice George and the California Supreme Court.  While he did give a hint in the questioning all the way back in March, it’s not clear by any stretch that there are 4 votes for this, either before or after the election.

The EQCA brief cite several cases where amendments have been tossed. The most notable amongst the amendments that were tossed was at issue in Raven v Deukmijian (52 Cal 3d 336). In that case, Stephen Bomse (the same attorney at Heller Ehrman that field the case on behalf of the voters and orgs in the marriage case) argued that a proposed initiative that would have limited California criminal rights to the extent of the US Constitution.  The CA Sup Ct ruled that such an amendment would so change the structure of the California system of government as to amount to a revision of the Constitution.

The Court stated a rather nebulous standard in Raven:

As explained in Amador, and confirmed in Brosnahan, our revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision. Before examining the applicable authorities in greater depth, we first set forth the nature of petitioners’ revision challenge.

So, the Court goes through a two-pronged analysis when dealing with revisions. Quantitative goes to scope of changes in the Constitution, quite literally. That looks to the actual number of additions, deletions, and amendments to the California Constitution (Raven , III, B, 2).  As to the qualitative aspect, the Court states that “even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision.”

Clearly, the marriage issue is looking towards qualitative aspects. And again, Raven is the case to look at:

Even under respondent Attorney General’s “limited” construction of new article I, section 24, fundamental constitutional rights are implicated, including the rights to due process of law, equal protection of the law, assistance of counsel, and avoidance of cruel and unusual punishment. As to these rights, as well as the other important rights listed in new section 24, California courts in criminal cases would no longer have authority to interpret the state Constitution in a manner more protective of defendants’ rights than extended by the federal Constitution, as construed by the United States Supreme Court.

This is where the case is headed, where the controversy lies. The EQCA attorneys argue that marriage is now a fundamental right. It is implicated under equal protection of the law, as orientation is now a suspect class under In re Marriage Cases.  From the brief:

Equal protection is not merely a discrete constitutional guarantee; it is a trascendent principle that is deeply woven into the fabric of our entire Constitution. (Brief at 17)

There is a substantive argument to be made here. But, there is no case law on the definition of fundamental rights.  This would be the Court going out on a limb and expanding the scope of the revision doctrine.  Now, this is the same court that decided In re Marriage Cases, so it’s not entirely unthinkable.  

But, as the writ points out, the Courts were specifically formed to protect the rights of minorities.  This is the very definition of a majority trampling on the fundamental rights of a minority.

And the court, in In Re Marriage Cases defined the right to marry as exactly that: fundamental.

we conclude that … the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple. In Re Marriage Cases at 10

And the word fundamental is spread liberally throughout In Re Marriage Cases.  But, like I said, this isn’t a question of law, the precedent is there. This is merely a question of courage. Does our justice system allow for the curtailing of fundamental rights by a bare majority? It certainly wasn’t designed to do so…but the jury is still out.

( – promoted by Be_Devine)

Two months ago, when Del Martin died, we all lost a beacon of light and Phyllis Lyon lost her wife and companion of 56 years.

Upon Del's death, Phyllis said, “Ever since I met Del 55 years ago, I could never imagine a day would come when she wouldn’t be by my side. I am so lucky to have known her, loved her, and been her partner in all things. I also never imagined there would be a day that we would actually be able to get married. I am devastated, but I take some solace in knowing we were able to enjoy the ultimate rite of love and commitment before she passed.” 

But that's not how those who support Prop 8 saw it. This is how they saw it, as captured by the amazing photographer Bill Wilson at Del Martin's memorial service at City Hall in San Francisco.

These people who hide behind the euphemism of “family values” protested Del's memorial with signs like “MOURN FOR YOUR SINS,” “DON'T WORSHIP THE DEAD,” and “YOU'RE GOING TO HELL.”

The public face of those who support Prop 8 is not their real face.  This is who they are.  Narrow minded, hateful bigots who interrupt a memorial service to tell an 83 year old widow that her wife is going to hell for having loved.

These are the people who want to tell Phyllis that she was never really married to Del.  The ones who want to forcibly end my marriage to Brian.  The ones who think they are wise enough to decide who other people can and can't love.

And just where do these people come from that have donated $4,499,258.05 from 10/27-10/30? It's not surprising that the vast, vast majority of the money donated to the Yes on 8 campaign is from out of state.Take a look at the donations from this week alone.  Only a quarter of the donations to Yes on 8 came from California.  The biggest chunk came from Utah.  Texas had a sizable chunk as well.  Take a look at the graph compiled my by lovely husband, Brian Leubitz.

We need to fight these out-of-state hatemongers with all of our power.  Stop the lies!  Stop the hatred!  Walk, knock, call, e-mail, tell everyone you know that we need to protect our residents and our Constitution.  NO ON 8!!!

This is very preliminary right now, and we’re still working on getting all of the details. That being said, it appears that the No On 8 website has been hit with some sort of attack coordinated with an attack on website opposing the Constitutional Amendment against marriage equality in Florida, No on 2.

Obviously, if such an attack did occur, it would be illegal and highly unethical. While nothing has been proven yet, the facts surrounding this case, with the dual attacks, points toward a hack.

We’ll attempt to get more details about this when we get them. If you have any information, please post in the comments.

UPDATE: The No on 2 Website is back for the time being. A similar pattern occurred with the No on 8 site as well, with the site coming online and then being attacked again. As of 11:26PM, No on 8 is still down.

UPDATE 2, 11:31: I’ve now received confirmation from the No on 8 campaign, that they are currently the victim of a Denial-of-Service attack.  The internet folks are working on it, but these things are tough to defend against, especially when you have a dedicated opponent.

UPDATE 3, 11:46 (Lucas): Before this attack hit, No on 8 was on pace to hit its final stretch fundraising goals. It was ambitious, but it’s required to go toe-to-toe through election day. Difficult to quantify how many dollars are being lost while the site is down, but this is simply where things are now. We must double down and keep this campaign rolling in spite of and to spite these attackers. Equality for All is on the Calitics ActBlue page. Throw in now (again). A November ramen diet is good for the mind, body and soul. Leave it all on the road.

• An update on a previous story I wrote about Knobbe Martens, the law firm for whom I used to work.  While I included the $25K+ worth of contributions to Yes on Prop 8, I neglected to mention that there were at least $2K of contributions to No on 8. So, to those attorneys at Knobbe who stand on the side of equality: Thank you.

• Here are some photos from a No on Prop 8 fundraiser in LA last night.  I think in one of those pictures you can see former Speaker of the Assembly Fabian Nunez dancing the Robot.  Get Funky!  The event raised about $3.9 million for No on 8, including some interesting fundraising techniques and performances from Melissa Etheridge and Mary J. Blige. From Karen Ocamb at Bilerico:

Bruce Cohen, the Oscar-winning producer who co-produced the event, brought her back onstage to announce that a gay couple was pledging $50,000 if Etheridge would sing at their wedding. She said yes and the crowd erupted in applause.

*  *  *  *  *

With heads bobbing, and couples clutching each other’s hands, Bruce Cohen dancing wildly, the scene looked and felt more like a secular revival than a political concert. Blige opened up about how she had survived being her own worse enemy, when on one would accept her – and “you say, ‘No more…no more pain, no more tears…” as tears started welling up in the eyes of those listening, identifying. “I chose to win!” she said, raising her fist in the air – to screams of glee and thunderous applause.

• And here we have another lying Prop 8 video. Despite the fact that California law allows parents to pull their students out of any class they deem objectionable, despite the BYU law professor who wrote that these claims were not true.  This isn’t subjective. This isn’t open to various opinions. This is the law.  And the Religious Right is lying to you, to me, and to 37 million Californians.

It’s up to all these Californians to see through the lies of the Religious Right. It’s up to us to say that they can’t come to California from Utah, from Colorado, from wherever and change our laws and to write discrimination into the constitution. It’s up to Californians to say No on Prop 8, we treat all Californians equally.

Cross posted at Big Orange.

A week or so ago, the legislature held a hearing regarding Proposition 8, the anti-marriage measure. These hearings are required by law to be held for every proposition, but this one, of course, was a bit more interesting.  A future Assemblyman, John Perez, an openly gay community and union leader running to replace the termed out Fabian Nunez, spoke of the inherent discrimination of seperate but equal. Samuel Thoron spoke of the importance to families of marriage equality.

On the other side, you had Dr. Jennifer Roback Morse basically said, “Why do you hate the children? THink of the Children who will be forced to grow up in a loving stable home where two parents love and support them?”

Ok, maybe not so much with the second part of that quote.  I’ve dutifully captured that video (after much labor with a corrupted DVD…let’s just say I spent way too much time on this) and offer it up to you.  Sincere Kudos go out to Assemblyman Dave Jones (D-Sac) who absolutely put Dr. Morse in her place. Exposing her argument as completely devoid of logic, and that is essentially a pretext.

Asm. Dave Jones:  Would you then tell the older heterosexual couple that they should not get married.

Dr. Morse: No, no I would not say that they shouldnt get married, but what I would say is that if the only kind of couples we had in society are elderly couples who are sterile we wouldnt need an institution of marriage.  You know, we wouldnt need it. So the point is, there are ways to solve–the problems that those couples face as elderly persons who arent going to have any kids

Jones:  Well, why didnt you craft this legislation to allow older gay couples to marry, if kids are the only concern

Morse:Well we thought it was simpler just to go back to the old man-woman definition.

Jones:  Or maybe this isnt about children after all

Morse: Right after this thereès some crazy stuff she gets into about in vitro fertilization becoming an entitlement.  The Rep asks her if she would outlaw In Vitro if the child knowing the biological parent is so important, and she says no.

Jones:  So let me sum this up.  You wouldnt ban infertility centers even though the children there wont know who their biological parents are, you dont agree with baning adoption even though in those circumstances children are not necessarily being raised by their biological parents, youre ok with, um, the adoption of children by gays and lesbians, you dont believe in banning divorce, even though by your own arguments theres been all sorts of analogous studies that indicate that divorce is very very harmful on children.  Um, its hard for me not to conclude that this isnt about protecting children…  I am utterly unconvinced that thats whats going on here.  What s going on here is fundamentally, I believe, an effort to discriminate against a class of people and deprive them of something that everybody else has.

But this is what Prop 8 supporters are attempting to sell both to the loyal flock of the Mormon Church and to the greater state of California.  An argument only thinly veiling its real purpose: to discriminate against one group of Californians, to only exclude those whom you don’t like.  And the lies only continue. The proponents argue that a failure of Prop 8 will lead to churches rocking house remixes of Madonna every Sunday because they have to let the gays take over. And not the good Madonna stuff…the new stuff! Boogy-Boogy-Boogy.

In fact, the Yes on 8 Campaign has gone through and come up with 6 Whole Ways Gay Marriage Will Ruin Your Life and the Life of All Straight Couples With Children. It’s basically a run down of everything you’ve seen in their commercials. You know, children will get taught gay marriage in schools, churches will be forced to marry teh gayz, Churches won’t be able to say anything about teh gayz being evil, and it will cost you tons of money (huh?).

Well, I’m sure I could go through point by point on this ridiculous list. But fortunately, it’s already been done.  Morris Thurston, a lifelong Mormon, long-time partner at Latham & Watkins (a big LA-based law firm), has already gone through point by point and taken them all down.  You can find a mini-post at Mormons for Marriage with the full PDF here or over the flip.

Mr. Thurston goes through each point, and completely rebuts them legally and also from a general logical standpoint. Take Reason #2, for example, churches will lose tax-exempt status if they don’t do same-sex marriages. Nope, says Mr. Thurston:

2. Churches may be sued over their tax exempt status if they refuse to allow same-sex marriage ceremonies in their religious buildings open to the public.  Ask whether your pastor, priest, minister, bishop, or rabbi is ready to perform such marriages in your chapels and sanctuaries.

Response:  This false “consequence” is based on the misrepresentation of a case in New Jersey involving an association affiliated with the Methodist Church. In considering that case, it is important to remember that New Jersey does not permit gay marriage, so that case had nothing to do with Proposition 8.  

*  *  *(More info on the New Jersey lawsuit)*  *  *

The California Supreme Court ruling on gay marriage cannot have any federal tax consequences, and the Court so noted explicitly in its decision.  The Supreme Court also noted that its ruling would not require any priest, rabbi or minister to perform gay marriages, which should be self-evident because of the First Amendment’s guarantee of freedom of religion.    

I’ll let you read the full smack-down of the “6 Reasons” but suffice it to say there’s not much left of the “Reasons” to argue with.  Which isn’t to say that you won’t be seeing them repeated over and over again on TV commercials and from silly talking heads like Dr. Morse, the Right isn’t really known for bowing to the reality of logic.

So, on this Sunday, consider giving to Equality for All, No on Prop 8, through the Calitics ActBlue Page, where we are just $1,500 from hitting $50K. (We’ve also given $2,000 from the Calitics CaliPAC, and another $5K+ from other Calitics pages). You can also do so over at Big Orange, where the Hell to Pay fundraisier has now raised well over $100K to fight back Prop 8.  Thanks to every who has given money to oppose Prop 8. And to everybody who hasn’t, time is of the essence. If you are considering, please do it as soon as possible.

mat-responses-to-six-consequences-if-prop-8-fails-rev-1-1

Over at Daily Kos, the Hell to Pay fundraiser for Equality for All, No on Prop 8 is rolling right along.  We are currently well over $50,000 to fight back against the bigotry of Prop 8.

Head on over there or make a contribution at our own Calitics ActBlue Page. By the way, we’re approaching $50K for Equality for All there as well.