Prop 8 was highlighted in today’s Field Poll release (PDF). And there is some very good news here:

Prop 8: Yes 42%, No 51%

No, this isn’t old data. The numbers have been completely static since the May Field Poll (PDF). Marriages have happened, and yet the sky hasn’t fallen. Those people that the Gail Knights, Dennis Hollingsworths, and Randy Thommasson need to convince that the world will surely end if committed loving LGBT couples are allowed to marry are just not buying it. The anti-marriage forces were not all that successful in getting coverage on June 16 when the marriages began. The stories in the media were all about the stable relationships that were now being granted the same standing as any other marriage.  How can you be against Del and Phyllis solemnizing their relationship after 55 years? Or Carol and Rachel after 13 years? Or any of the other committed relationships?

The answer is a resounding silence. Californians are not outraged. A whole lot of nothing.

There are all sorts of great numbers in the full report on Field’s site.  Eventually, you’ll be able to get full cross-tabs on the CapAlert site. The thing that jumps out most obviously is party affiliation. Interestingly, “Other” (DTS, etc.) was pretty much equally likely to vote no as Democrats.  Also interesting is that while young voters are the most likely to oppose Prop 8, even voters over 65 aren’t as strongly opposed as they once were. In fact, the vote is pretty much even in that category.

I’m a bit skeptical of these age numbers. Ok, more than a bit skeptical, as the 50-59 numbers are totally wacky at 38% Yes, 57% No, quite a flip from the May numbers. I’ll try to contact the Field folks about this and see if they have any thoughts on this switch.

UPDATE: Here are the CapAlert cross-tabs(PDF). The 50-59 group is a set of about 190 people, so not a completely tiny set of respondents there.

The United States Census is extremely important for a number of reasons. Not only do we allocate representation in our government using that data, but it also affects how federal and state funding is allocated and how we view the nation. The data, generalized and without names, is also made available for research purposes.

Yet in 2010, the Census will consciously doctor the data, ignoring thousands of weddings in California, Massachusetts and hopefully a few more states by then. From MediaNews:

But no matter what the voters decide, the official government count of the number of married same-sex couples in California is not in doubt. It will be zero.

The U.S. Census Bureau, reacting to the federal Defense of Marriage Act and other mandates, plans to edit the 2010 Census responses of same-sex couples who marry legally in California, Massachusetts or any other state. They will be reported as “unmarried partners,” rather than married spouses, in census tabulations – a policy that will likely draw the ire of gay rights groups. (Monterey Herald 7/15/08)

But, now don’t you worry, they aren’t tampering with the data. They’ll have it, but just completely ignore it. Maybe in a few years will my marriage or the other marriages happening all across the state will be acknowledged by the federal government.

One can only hope an Obama administration would change this ridiculous ruling. Ignoring the legally binding weddings in some states is preposterous and would lead to inaccuracies all along the data food chain.  

The reply brief in Bennet v Bowen has been filed by Equality California and allies. You can grab the PDF here.

There’s not a whole lot new here, so I’d recommend that you take a look at my previous diary. This reply brief focuses on the issue of pre-election versus post-election review and then restates the previous two issues: that Prop 8 is a revision rather than an amendment of the constitution and that the signature forms carried an improper statement of the law.

There is one interesting passage that I thought might carry some weight and might incline the justices to consider pulling Prop 8 off the ballot:

No other group in this state has ever had to face an initiative that would deprive them of their basic status as equal families under California law. If Proposition 8 is a revision, as Petitioners assert, gay and lesbian Californians should not be required to endure the indignity and pain caused by the uncertainty that Proposition 8 now poses for their families. That many gay and lesbian couples have had to wait decades or even most of their lives, to exercise the fundamental freedom to marry does not diminish, but rather exacerbates, the grave harm caused by that uncertainty.

I’m still counting this one as a longshot for anything to happen before the November election. It is still a case of first impression and would be creating new law, but it’s not an altogether unreasonable argument. Either way, let’s plan to shut the door on discrimination right here in California.

Cross posted in Orange.

On June 20, Equality California, NCLR, and a whole host of groups filed suit in the Supreme Court of California against our Secretary of State, Debra Bowen. (Note that Debra Bowen is an amazing SoS; she’s getting sued in her SoS capacity.) To grossly oversimplify, EQCA alleges that the signature gathering process was flawed for a few reasons:

Ultimately, this is a long shot. For a number of reasons, the Supreme Court is unlikely to pull the measure off the ballot in November. Let’s go over those over the flip.  

First the general process questions:

Why go to the Supreme Court directly?

On a few issues, the California Supreme Court has so-called “original jurisdiction.” Basically, this just means that they can take the case without the case working its way through the court system. This requires that there are no issues of fact, only of law and that there is a pressing time concern. There is a lot of discretion involved on this issue of law, so this is one way the Court can punt the case until November.

When does the Court prefer to act on challenges to initiatives?

Generally, post election. This was restated in Independent Energy Producers Assn. v McPherson all the way back in 2006. Some energy producers tried to kick Prop 80, a energy reregulation bill, off the ballot. Ultimately the initiative lost badly, so the court ended up looking good on punting the issue, but they did issue something of an advisory opinion stating that preelection review is generally frowned upon. Or to pull directly from case law:

[I]t is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people’s franchise, in the absence of some clear showing of invalidity.” (Brosnahan v. Eu (1982) 31 Cal.3d 1, 4 [181 Cal. Rptr. 100, 641 P.2d 200] (Brosnahan I).

The Court in the Costa v Sup. Ct (37 Cal. 4th 986), goes on to say that pre-election review is acceptable when the initiative is not  “properly submitted”, such as a violation of the single subject rule, or, say it amounts to a revision rather than an amendment:

More recently, however, in Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142 [90 Cal. Rptr. 2d 810, 988 P.2d 1089] (Senate v. Jones), we noted that decisions after Brosnahan I “have explained that this general rule applies primarily when a challenge rests upon the alleged unconstitutionality of the substance of the proposed initiative, and that the rule does not preclude preelection review when the challenge is based upon a claim, for example, that the proposed measure may not properly be submitted to the voters because the measure is not legislative in character or because it amounts to a constitutional revision rather than an amendment. [Citations.]” (21 Cal.4th at p. 1153.)

So, Bingo Bango Bongo. This doesn’t seal the matter, but it does make a strong argument that the Court has the authority to review the case. Again, this is a gross oversimplification, but hey, this is a blog, not a law review. By the by, you can look up CA Sup. Ct. caselaw free here.

Why are we suing Bowen?

Well, quite simply, the SoS puts stuff on the ballot. The proponents of the initiative are named as the “real parties in interest,” and the Liberty Counsel, the out-of-state anti-marriage legal team has also filed to intervene in the lawsuit.

Now to the substantive issues: 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 and a huge John McCain fan. Well, I’m only inferring that last part from the fact that he’s the official blogger of the California Log Cabin Republicans.  So, apparently Kevin is comfortable with rosy predictions from Republicans. They’ve been great to the LGBT Community in California and across the nation, right?

Kevin really wants this off the ballot, that much is clear. And that’s a laudable goal, but let’s go over the law honestly: Norte’s concept of classifying Prop 8 as a revision would be establishing new law.  Despite the fact that he cites lots of cases, the Supreme Court would still need to take one additional step.

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.

Norte, and 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 Constituion (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.  However, we shouldn’t be banking on this.

The Material Misstatements on the Circulating Initiative

This seems to be an even longer shot, as the misleading statements weren’t actually misleading at the time of signature gathering. Clearly, the only remedy available for this would be to remove the amendment. However, I think if the Court wants to remove the amendment from the ballot, this would be only a secondary cause, as it was in the brief.

Specifically, the brief argues that the description’s statement that the amendment would make “no change” to marriage law and that there would be no “fiscal effect” on the state budget.  It’s clear that there would be a few million bucks of tax revenue on the line from gay weddings, but that amount of money would never be used to boot an initiative from the ballot.

Does the fact that the summary got the outcome of In re Marriage Cases wrong matter? Again, this is a case of first impression for the CA Supreme Court. There is just not a lot of case law to go on. You can analogize to cases in the past, but there is nothing dispositive. The closest case is Senate of the State of California v Jones, 21 Cal. 4th 1142, which states, in dicta, a non-precedent setting tossaway phrase, that initiatives could be booted for a misstatement of current law.

Again, it’s a stretch, considering it wasn’t entirely a misstatement.

In the end, I, and many others, are expecting to have to fight this battle at the ballot box. It’s possible that Chief Justice George and the Court could come riding to our rescue, but how much sweeter would our victory be if we didn’t need the Court? How much more important to the future of our nation would it be if we were able to shut down the forces of bigotry and hate at the ballot box?

It’s odd because for most of my life, I haven’t thought much about marriage. It never really seemed that necessary or even desirable to me. But yesterday, when I found out that I could now marry my girlfriend if we wanted to, I realized that this right is incredibly important to me. (My girlfriend certainly helped me come to this realization by showing up at my office unannounced yesterday afternoon with popsicles for me and all my co-workers.)

Today, it hit me again when I got another email with an FAQ about marriage, in light of the decision. It became so concrete when I found out that I could get married almost immediately to anyone I wanted, no matter his/her gender (well, assuming s/he wanted to marry me). Really, I could get married next month, and the gender of my partner wouldn’t be an obstacle.

I know this probably all sounds obvious considering the ruling, but it’s taken a day and a half to fully settle in. It completely alters my life options, and I couldn’t be much more elated by this.

This evening, riding home on the bus, I ran into Rebecca Kaplan. I hadn’t realized until I read her Daily Kos diary earlier this week, but if elected to the Oakland City Council, she would be Oakland’s first openly lesbian elected official. In this surreal and wonderful week filled with firsts and changes, it seemed appropriate that as I ended the week, I ran into someone who’s poised to make history on June 3rd.

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

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

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

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

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

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

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