This is an article written by Matthew Fleischer for Frying Pan News. Check Frying Pan News for regular in-depth coverage of Prop 32, its funders, and how it will impact working Californians.

Brothers David and Charles Koch, and other libertarian billionaire backers of Proposition 32, including Charles Munger Jr., like to wrap themselves in the toga of individual freedom. However, despite their supposed ideological fervor for personal liberties, they have allied themselves with some of the nation’s most vociferously anti-gay religious activists – all for a campaign to outlaw the use of automatic payroll deductions from union members and corporations for political purposes. Although it is not widely seen as a “gay issue,” Prop. 32’s passage could have far-reaching consequences for California’s gays and lesbians.

“If we lose organized labor as a funded political ally in California, the LGBT movement is in big trouble,” says Courage Campaign founder and LGBT activist Rick Jacobs.  “Would you rather have Howard Ahmanson thinking about your rights in the workplace, or organized labor? That’s what this is about. Mark my words, people like the Kochs and Ahmanson are not thinking about how LGBT people are welcome in the workplace and not discriminated against.”

Howard Ahmanson, the Prop. 32 supporter to whom Jacobs refers, is a wealthy heir who once told the Orange County Register his political aspirations for the country embraced “the total integration of biblical law into our lives.”

In 2008 Ahmanson was one of the leading backers of the successful Proposition 8, which banned gay marriage in California where, briefly, it had been legal. He donated nearly $1.4 million to fight against marriage equality. That sum is even greater than the $1 million he donated to the American Anglican Council, a religious advocacy organization, in the early aughts-ostensibly to help undermine the tide of tolerance growing in the church towards LGBT participation. The Episcopal Church, which falls under the Anglican umbrella and to which Ahmanson belongs, was the first major Protestant denomination to allow the ordination of openly gay bishops.

It’s telling that for a bill advertised as a campaign finance reform measure, Prop. 32 wouldn’t have put the slightest dent in Prop. 8’s funding, had Prop. 32 been law in 2008. It would have, though, prevented more than $2 million in union donations from flowing to the marriage equality side.

Ahmanson isn’t the only Prop. 32 backer looking to stifle LGBT rights in California. Despite his fundamentalist politics, he may not even be the most anti-gay. That honor likely belongs to real estate investment magnate Larry T. Smith, who thus far has given $255,000 to Prop. 32.

A strong supporter of Prop. 8, Smith was recently among the fiercest critics of SB 1172-the California legislative effort to ban gay-to-straight conversion therapy for minors – which passed in September.

Smith fundamentally rejects the notion that parents forcing their underage children to endure conversion therapy could be psychologically harmful. On the contrary, he feels it’s a “parental right.”

“It in fact appears most of the evidence supports the thesis or the concept that that lifestyle is the result of early childhood experiences,” Smith told the Christian news site Onenewsnow.com. “If early childhood experiences tend to motivate a person in that particular direction, then it would seem reasonable … that proper therapy would help them get out of that particular lifestyle, which I don’t care where you stand – there’s no question that it’s unhealthy.”

In other words, there’s no question that being LGBT is “unhealthy” and a lifestyle choice, and that all you need is some behavior modification at a young age and everything will be good-like curing bedwetting.

Smith isn’t merely opining. He’s the billionaire founder of the religious-right political action committee Family Action-which, with the help of fellow Prop. 32 backer and Family Action board member Mark W. Bucher, helped qualify and pass Proposition 22, a 2000 law amending California’s Family Code to effectively ban same-sex marriage.

For more than a decade, the Family Action PAC has routinely funneled money to anti-gay conservative politicians across the state of California, including Orange County State Assemblyman Allan Mansoor, whom Smith recently praised as “an effective voice for conservative values.”

Mansoor caught the attention of LGBT activists when he ran for a Costa Mesa city council seat in 2002 by posting homophobic comments and articles on the message boards of the website Concerned Costa Mesa Citizens. He also supports the claim that homosexual men commit acts of sexual child molestation at a disproportionately high rate.

Recently, Smith came out as an opponent of this year’s Assembly Joint Resolution 43 – otherwise known as the LGBTQ Bill of Rights. Proposed by Bell Gardens Assemblyman Ricardo Lara, the resolution urged Congress and President Obama to extend California’s robust LBGT civil rights protections against bullying, harassment in the workplace, and discrimination in pay, loan opportunities, housing, hiring and family leave, to gay and lesbians across the country.

“The California Legislature spends their time on trivia instead of dealing with the major problems that the state has,” Smith complained of AJR 43 to Onenewsnow.com. “And it also tells you how the special interests control the California Legislature.”

Smith’s definition of gay rights as a “special interest” should tell LGBT-rights supporters all they need to know about Prop. 32-whose website explicitly advocates “taking back California by reducing the influence of Special Interests across the board.”

LGBT activist Robin Tyler, an original plaintiff in the California Marriage Equality case and a member of the first lesbian couple to be legally married in California, sees Prop. 32 in the same vein as Prop. 8, and thinks its passage would have disastrous effects on the marriage equality movement in California.

“Prop. 32 is another glaring example of why Californians are being fooled into thinking that if they voted for stopping ‘special interests,’ they will be voting in their own favor,” she says. “Like Prop. 8, which misled the public who voted ‘Yes’ into thinking they were protecting their children, Prop. 32 once again misleads the public into thinking they are protecting themselves.”

Reached by phone, Larry T. Smith had “no comment at this time” on Tyler’s remarks or anything having to do with Prop. 32.

Should Prop. 32 pass, Smith, Ahmanson and their compatriots will undoubtedly continue pushing their religious, anti-gay agenda on the state of California and beyond.

“This is not just about California,” says the Courage Campaign’s Jacobs. “Labor communities have been very supportive of LGBT rights in the workplace and in the political space. They are reliable allies. If 32 passes, California’s 2.5 million unionized workers won’t be able to contribute their money for political purposes out of state either. The next time there’s a fight in Washington over the Defense of Marriage Act, for instance, labor has less capacity to join us. California is a donor state. The whole chain is interrupted.”

New York has passed marriage equality. Let’s repeat that. In. A. Big. Bold. Font.

New York has passed marriage equality!

or even better

Why not then California?  

With an incredible victory in the New York State Senate as tailwind, the question of whether to pursue repeal of Proposition 8 now comes to the fore. Is California to be left in the proverbial dust, awaiting a Supreme Court decision that even if favorable will take years and years?  Or will the state put this scourge to rest a little less than seventeen months from now?

The answer is not blowing in the wind. The answer is in the hands of LGBT organizations similar to those that came together in a unified front (or perhaps were pushed!) to win marriage equality in New York. The answer is in the hands of donors similar to those who were willing to go to bat for marriage equality to the tune of millions of dollars in New York. The answer is in the hands of grassroots advocates similar to those who, in New York, worked their butts off. They called, they gathered signatures and postcards, they called some more, and they demonstrated on the streets and in the Capitol in anticipation of the vote. Would their analogues in California work their butts off to pass marriage equality in California if they were given the chance?

There’s no doubt in my mind: the answer is ‘yes’. ‘Yes’ to putting it on the ballot. ‘Yes’ that the money and enthusiasm will be there.  

Do It.

Battles are not won by the timid.  Victories are not earned by complaining about how grueling a campaign it will be. And as history is rife with examples, no one is going to hand anyone their rights on a silver platter.

There are arguments against the attempt to repeal Prop 8 in November, 2012 to be sure.  But ultimately these arguments pale when held up against the example of what has just happened in New York State. There is no excuse for remaining unequal a day later than it is possible for such an iniquity to be rectified.

Let’s consider the naysayer’s points one by one:

We might lose.

It’s true. There is no guarantee of victory. There never is. But what’s the worst that happens? Do you think the movement will collapse? It didn’t in New York when they experienced a crushing defeat in 2009. I don’t think the suffragettes or the anti-slavery movement or the civil rights fighters of the 50’s and 60’s ever gave up…

Of course the movement will not collapse. Not only that, the Prop 8 case will still be there as backup and if THAT fails, there’s 2016. Or, dammit. 2020. This is just not a serious argument when one thinks of the great civil rights movements of the past and how long they took and how much they struggled.

It will cost a lot of money.

Well, duh. But California is a very rich state, with a lot of rich people. Between Hollywood and Silicon Valley there’s enough money to pay off the federal debt (okay, I engage in hyperbole, but you get the point).  These are both groups of people with a libertarian/liberal bent, many of whom would probably be overjoyed to be associated with a victorious campaign just as their compatriots in New York, both entertainers and businesspeople, were so associated.

While it will cost a lot of money, California has lots of people. LGBT people. Allies. Millions and millions, in fact.  That’s a lot of potential smaller donations.  Maybe it will cost more per capita than to wage a campaign in Maine, but this is just not a realistic concern in my opinion.  Build the campaign, and the dollars will come.

There are other battles to be fought in 2012.

This is just plain wrong in conception. Yes, there is at least one other battle (Minnesota), and there may be others (Maryland, Maine, Oregon).  But that is a good thing, not a problem! It’s called synergy. It’s called a movement. Each campaign will reinforce the others, building momentum while attracting support and supporters — not detracting or taking resources away from the others.  Remember: the majority of the American public supports marriage equality. This is a fact.  This is not a movement on the margins any more.  The more excitement there is, the more resources there will be.

No one should be voting on other people’s rights.

Philosophically, it’s a great argument. Practically, it’s as useful as discussing angels on pins, or Republicans for tax increases.  They’ve already voted on your rights!. Thirty one f***ing times, and they’re going to do it again in 2012 — 2012!! — in Minnesota and maybe in North Carolina. On battlefields of their choosing, using wording of their choice.  

To make this argument against voting on rights is to deny the reality of the recent past. And look, we’re not talking about some life-or-death moral principle here. It’s not like we’re discussing whether or not it’s okay to use landmines in a war zone where children will long afterwards endanger themselves, or whether we should stand idle versus intervening while a dictator massacres tens of thousands of people. Voting on people’s rights is not going to kill people or make children suffer. We’re talking about using a political tool that our opponents have used over and over against us to our benefit instead. Sure, it’s asking to people to vote on whether you are equal, which just sucks, but if that’s the way forward to equality then I say “use their own damned tool against them!”

The votes aren’t there.

I can’t prove to you that the votes are there. And you can’t prove to me that they aren’t there.  Only an actual vote will decide that argument.

But what I can tell you is that there is every reason to believe that with a solid campaign the votes can be made to be there.

Please read Math, Science and Emotion: Defeating Proposition 8 in 2012 if you do not believe me.  It may not be a perfect analysis, but it can’t be far off the mark.

The simple explanation is that

 a) Demographic change through November of 2012, along with

 b) Social change, combined with

 c) Enthusiasm and momentum from the NY victory (not included in the analysis)

taken together add up to a really good shot at victory.  One has to be a confirmed pessimist to believe that there isn’t a least a good shot at victory given the state of national polling, statewide polling, and the incredible change in social attitudes (think ‘Glee’) that has occurred in the last three years (leaving a year to go!).

And it’s not like we’re starting from a 2008 base of 40%. We all know that Proposition 8 opponents (aka us) got almost 48% of the vote three years ago. That just cannot be an insurmountable obstacle.

(note: this graph is not reflective of the most recent polls; the result would be even more stunning if it were)

Why deal with it? Why not wait for the Prop 8 Trial to resolve?

 — Because it might not succeed!  

There is a real possibility of losing at the Supreme Court which some people seem to ignore.  And if the Supreme Court issues an adverse ruling that would be a huge blow, potentially setting back the fight for equality for decades. Of course, the case might succeed. Spectacularly.  But neither you, nor I, nor anyone except perhaps Justice Anthony Kennedy, knows or can even estimate reasonably what the chances of success or failure or something in between are.

Really, ask yourself — are all the eggs to be placed in the same basket that decided corporations are people in Citizen’s United? That’s quite the gamble.

 — Because it will take years and years to get to a decision.

People are being denied equality now. What justification can there be to deny people a good shot at being frst-class citizens?

 — Because winning in California will be huge.

It will further catalyze the nationwide movement towards marriage equality.  

It will speed up the pace of change of public opinion in our favor.

It will make politicians stand up and take notice in terms of repealing DOMA.

It will make it more and more likely that when a marriage or DOMA case does come before the Supreme Court, the issue will be decided favorably.

It will reverberate around the world, just as the NY vote is doing right now.

It’s just too much effort.

Ugh. Think back to November, 2008. All the protests. All the energy. All the speeches vowing to overturn Proposition 8. Camp Courage. Now, finally, there is a real chance to really do something, and the powers-that-be seem to think that such enthusiasm cannot be harnessed? I have more faith than that. People are waiting for someone to lead, but I believe they are more than willing to follow.

We don’t know how to counteract NOM.

Of all the criticisms I’ve heard this has the most weight.  If we don’t have a strong counterattack to the inevitable spate of hate ads claiming we must protect “the children” from “teh gay” there is a good chance that we could still lose, even with public opinion seemingly strongly on our side.

Still, the fact that NY was able to do it is an indication that it can be done. I’m no marketer or Mad Man, but I find it hard to believe that with all the talent out there, and all the politicians, celebrities and LGBT couples willing and available to speak out for marriage equality, that it’s not possible to come up with an effective campaign. (And in fact at the town meeting I attended Equality California leaders said they have conducted research and have what they think is an effective countermessage.)

It’s time for California’s LGBT organizations and leaders to come together and resolve that if the Courts have not resolved the issue favorably by the time it is necessary to move, that move on this we shall.

It’s time to take the lessons of NY — a united front, a single message, a relentless, orchestrated campaign — and win back equality in the Golden State. And then the country.

Carpe Diem, California.

(Lady Gaga celebrating the victory in NY)

Thanks for listening.

( – promoted by Julia Rosen)

It’s election day in California and several other states.  With the exception of one statewide race, (AG) Democrats and progressives won’t be compelled to the polls.  Republicans will because of the battle of the billionaires (okay, one billionaire two multi-millionaires).  We can only hope that enough of us vote(d) to beat back two odious ballot measures put on by two big corporations.

But there was already big news today in California about “the trial of the century.”  Judge Vaughn Walker today issued a series of questions for the parties to the federal Prop. 8 trial that began in January and was put on by Ted Olson and David Boies and colleagues and defended by the oxymoronic “Protect Marriage” proponents of Prop. 8.  

The questions are stunning in their breadth, complexity and essence.  Here are just a few:

What empirical data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians?

What are the consequences of a permanent injunction against enforcement of Proposition 8? What remedies do plaintiffs propose?

If the evidence of the involvement of the LDS and Roman Catholic churches and evangelical ministers supports a finding that Proposition 8 was an attempt to enforce private morality, what is the import of that finding?

The court has reserved ruling on plaintiffs’ motion to exclude Mr Blankenhorn’s testimony. If the motion is granted, is there any other evidence to support a finding that Proposition 8 advances a legitimate governmental interest?

Why is legislating based on moral disapproval of homosexuality not tantamount to discrimination? See Doc #605 at 11 (“But sincerely held moral or religious views that require acceptance and love of gay people, while disapproving certain aspects of their conduct, are not tantamount to discrimination.”). What evidence in the record shows that a belief based in morality cannot also be discriminatory? If that moral point of view is not held and is disputed by a small but significant minority of the community, should not an effort to enact that moral point of view into a state constitution be deemed a violation of equal protection?

What does it mean to have a “choice” in one’s sexual orientation? See e g Tr 2032:17-22; PX 928 at 37

I am not a lawyer, but I can without doubt say that never before has homosexuality been on trial in America in this way.  The testimony in January, which I liveblogged, was breathtaking and so sweeping, that the defense (the folks who put Prop. 8 on the ballot) were left with only one argument: marriage has always been between a man and a woman so it should always be between a man and a woman.  And Professor Cott and other experts even destroyed that argument.  Even so, it’s a bit like saying that some people were always forced to live in a certain place so they should always be forced to live there.

We launched Testimony: Equality on Trial because this court case has already changed history.  As we can see from the Judge’s questions – read them and pick your own favorites–the entire scope of the debate has been encapsulated in this trial.  But the defense has worked at every juncture to stop you from seeing what happened and will happen in the courtroom.  We seek to make this your trial.  And soon, we’ll seek to hear your testimony.

For now, as voting for initiatives and candidates across the state and country winds to a close, we can see unfolding the true story of human rights in America.  

Watch the court. Whatever the ruling, this trial is history.

UPDATE:  You can join us for a Courage Campaign Conversation with Ted Olson Wednesday at 6::00PM PDT to learn more.

(full disclosure: I work for the Courage Campaign and was on loan to No on 1)

A year ago I knew what went wrong and I knew how to fix it.

A year later, I don’t know what went wrong.  I don’t know how to fix it.

We had the money.  We had a stable campaign.  We had the a robust well-oiled field campaign.  We had a strong campaign manager.  We had the turnout we wanted.  We had great coordination between the netroots and the campaign.  We had a not particularly religious state.  We neutralized the church issue.  We had a manageable voter universe.  We had an opposition with an inferior media and field operation.  We had TV ads with gay people in them.  We responded to their attacks swiftly.  

And we still lost.

Our campaign wasn’t perfect.  But it was damn good.

And that’s why this loss is so hard.  The lessons to be learned are not as obvious.  Not knowing how to fix it makes it tempting to throw our hands up in the air and say at 0-31 we just can’t win marriage rights at the ballot box.  Or we have to wait a decade until we can.

But that would be letting them win.  That would be giving up.  That would be accepting inequality.

We can’t.  I won’t.

We need to learn how to neutralize the schools issue better than we did this time.  We must continue telling our stories, one by one, person by person, door by door.

Nate Silver as usual has some smart thoughts:

I certainly don’t think the No on 1 campaign can be blamed; by every indication, they ran a tip-top operation whereas the Yes on 1 folks were amateurish. But this may not be an issue where the campaign itself matters very much; people have pretty strong feelings about the gay marriage issue and are not typically open to persuasion. There’s going to be an effort by many on the left to blame Barack Obama for his lack of leadership on gay rights issues; I think the criticism is correct on its face, but I don’t know how much it has to do with the defeat in Maine. A more popular Democratic governor, for instance, who had been a bit quicker on the trigger in his support of gay marriage, might have helped more.

Persuading voters to change their minds about marriage equality is extremely difficult, but it is possible and it happens every single day.  It just takes a lot of resources and is most effective on a one-to-one level.  

That means we must continue to invest in grassroots organizing, training new leaders to work in their communities and supporting their efforts over time.  We need to continue to build connections and relationships with faith communities.  We can organize in churches.  We can even organize in Mormon Temples and Catholic Churches.  It has happened.  It is happening.

There are lessons to be learned out of Maine.  We know that we can build a massive GOTV operation.  We know how to build a model where a campaign invests in the netroots and reaps the rewards.  The church issue can be neutralized.  It’s possible to set aside differences and focus on a common goal.  We can build a campaign to be proud of as a community.

What we can do now is have experts in Maine politics analyze the results to understand better how we lost.  We need talk to the No on 1 campaign leadership/consultants to get their advice like they did from our Prop 8 loss.

We can win marriage back in California.  We will win marriage back in California.  We can win marriage in Maine.  We will win marriage in Maine.

I am not quitting.  You better not be either.

This weekend I am picking myself back up and getting right back to work, training hundreds of activists in Sacramento how to organize at Camp Courage.  They will and I will come in with heavy hearts, but leave empowered.  

We will leave and fight the next fight together.

I’m back home in San Francisco, after spending 10 days on the ground in Maine with the “No on 1” campaign.  After my time there, I truly believe that – with our help – Maine will become the first state in the nation to successfully defend marriage equality at the ballot box, providing a roadmap for California to repeal Proposition 8.  Maine activists have been working hard for five years to pass gay marriage, but events in the last few days now point to what should be an historic victory on November 3rd.  With only 19 days left, what I’m seeing from the “Yes on 1” campaign reminds me of where “No on 8” was at this point last year – outgunned by the opposition, unable to control the message and at a loss about what to do.  If Question 1 passes, it will be our fault for not having done more.  But if Question 1 fails, those of us who get involved will have made history – which is why I hope to go back for the last four days.  Here are the reasons for my optimism …

An Early Fundraising Advantage

One reason why I got involved in this effort was that “No on 1” said they only needed $3 million dollars for the entire campaign – a pittance compared with California efforts.  “We’re a cheap date,” said campaign manager Jesse Connolly at this year’s Netroots Nation Convention.  New fundraising totals that came out this week show that “No on 1” has already raised $2.7 million (with most of the money coming from Maine residents) – and bloggers are planning a big fundraising push for today that should keep them on track with their goal.

The bigger news, however, is that “Yes on 1” reported only raising $1.1 million – with a campaign debt of $400,000 (our side has no debt.)  This provoked their spokesman Marc Mutty (who is on loan from the Portland Archdiocese) to send out an urgent message on October 13th that their cause was under “financial assault.”  In the mass e-mail, which can be reviewed in full here, Mutty says they had known from the opposition’s superior ground game that our side had been raising more money.  But they had “never dreamed the situation was as dire as it is,” and are now urging their supporters to make a “sacrificial contribution” to pass Question 1.

To me, the most revealing part of the e-mail is when Mutty mentioned their Sacramento consultant, Frank Schubert: “Our campaign strategists, who helped pass Proposition 8 in California and who have won dozens of initiative campaigns around the country, tell us that we cannot win if we continue to be outspent as we have to this point.  It is amazing that we are still in a dead heat.  We’ve had to cut our voter contact program dramatically.  Every week, we’ve cut our advertising budget.  We’ve eliminated a statewide bus tour that we had planned for next week.  We’ve had to cut back on staffing.  And collateral materials.  And direct mail.  Our grassroots organizing has suffered.”

Reading this e-mail brought me back memories about the “No on 8” campaign.  At around this time last year, marriage equality advocates in California sent out a red alert to their supporters – when it became clear that a lot more Mormon money was coming into the state than anticipated.  Gays and lesbians were asked to shell out more than they could afford, but we still lost.  I always say that the worst hangover of my life was two weeks after the election, when I opened my credit card bill to get hit with $200 to “No on 8.”

Will Mutty’s plea fuel a huge influx of cash to the “Yes on 1” campaign in Maine?  Of course, but they will only have 19 days to spend it.  Recall that by the time the election was over last year, “No on 8” ended up out-raising the opposition ($43 million to $40 million) – in large part because the October “red alert” galvanized the LGBT community.  But money that comes in during the last month is less effective, and campaigns that are unprepared for a much bigger budget may not know what to do with the money.  “Yes on 1” will use the cash to run even nastier ads, but I don’t see it salvaging their bad situation.

Religion Issue Has Been Deflected

I have been impressed with the “No on 1” campaign’s outreach to communities of faith – which has helped counteract the Portland Catholic Diocese’s aggressive involvement in passing Question 1.  A group called Catholics for Marriage Equality has staged walk-outs on Sunday services when the Church took up second collection plates on behalf of the “Yes on 1” campaign, and “No on 1” has organized several press conferences with religious leaders.  As a result, media coverage in Maine newspapers has talked about how communities of faith are on “both sides” of the issue.

Now, the question has taken center stage.  The “No on 1” campaign’s latest ad features Yolande Dumont, a French Catholic grandmother from Lewiston – a conservative city in Maine – who speaks about her gay son, his partner and their child.  Yolande mentions that she’s a devout Catholic, her faith is important to her, and that she supports marriage equality.  In an election where “No on 1” has had to respond to many of the opposition’s attacks, it is a positive TV ad with a general “feel-good” message about the value of strong families.

But it clearly struck a nerve with opponents of marriage equality.  Catholic Vote Action (a conservative political group) sent out a press release on Tuesday, demanding that the ad be pulled: “For decades gay and lesbian groups have attacked the Catholic Church for refusing to accept their skewed views on human sexuality and marriage …  Everybody knows the Catholic Church is opposed to counterfeit marriages … For homosexual groups to suggest that the Catholic Church believes otherwise is disingenuous, dishonest, and an insult to the intelligence of Catholic voters in Maine.”

Such a response will backfire, because it fails to acknowledge a distinction between rank-and-file Catholic voters (many who, like Dumont, support marriage equality) and the Church hierarchy.  Maine is a very Catholic state, but it also has one of the lowest levels in church attendance – which suggests that many Catholics are already a bit disillusioned with their Church leadership.  The reason they cite for pulling the ad will only infuriate Maine Catholics, because it says they cannot have a different opinion from the hierarchy.

In fact, it reminds me of a famous political gaffe in 1990 that happened in Minnesota.  The late Paul Wellstone was running for the U.S. Senate against incumbent Rudy Boschwitz.  Both men were Jewish, and in the final days of the campaign Boschwitz sent a fundraising letter to conservative Jewish donors, asking for support because he had been a “better Jew.”  Wellstone, he explained, had married a non-Jew – and had not raised his children in the Jewish faith.  The letter infuriated Jews, not to mention the 97% of Minnesotans who are Lutheran.  I’m not suggesting the Catholic attack on the “No on 1” will have the same potency, but it’s never good politics to start questioning a religious person’s convictions.

Taking Ownership of “Protecting the Children”

In every state where marriage equality has been on the ballot, opponents have used “the children” as a means of scaring swing voters – preying on their worst fears about what gays and lesbians will do to kids in the classroom.  From the start, “No on 1” has pre-empted this attack by bringing up the fact that many gay couples raise children.  When opponents brought up the tired line that gay marriage will be “taught” in public schools, our side has countered that what schools teach is that no child should feel ashamed of what kind of family they may come from.

On my last morning in Maine, the Portland Press Herald had a front-page “human interest” profile of two couples on each side of Question 1.  The ones supporting it were a Christian couple concerned about the “sanctity” of marriage.  The opponents were a lesbian couple who are raising two daughters.  For them, said the Press Herald, it was “all about the kids” – i.e., they want a safe and secure future for their children that comes from being raised by a legally married couple.  When I saw the article, I knew that our side’s ownership of “protecting children” has affected mainstream media coverage.

Mobilizing Students Will Be Key

The reason I plan to come back for the final four days of the Election is that Question 1 will be decided by turnout.  With college students strongly supporting marriage equality, having them show up could be the margin of victory.  Maine has same-day voter registration, so having young activists on campuses for the tail end of the campaign will be absolutely critical.  As someone who ran voter registration drives in my college days at UC Berkeley, I’m excited about working in a state with same-day voter registration.

In fact, it’s clear to me that the “Yes on 1” campaign’s strategy for college campuses is to ignore students, and hope they don’t even realize that there’s an Election coming up.  At the University of Maine at Orono last week, the campus was preparing for a Question 1 debate – with representatives from each side.  The event was cancelled, however, when “Yes on 1” pulled out.  As one of their spokespersons later told the school newspaper: “statistically, going in front of college students doesn’t make the most sense.”  In other words, they were afraid that having an open debate would only draw more attention.

Race is Up to Us to Win

But while I remain optimistic about Maine, the “No on 1” campaign will need volunteers for the last 19 days in order to score a victory.  That’s why getting involved for the final push will be so critical.  If we lose, it will be because not enough of us got involved.

Out-of-state volunteers can make phone-calls from home, while there are organized phone-banks going on across the country.  East Coast volunteers can take a day (or weekend trip) to Maine and find a carpool through an online feature that pairs up people in your area.  And you can donate money or airline miles to send volunteers for a week at Travel for Change.  Or you can give to the California Young Democrats, who will be helping the last-minute college campus push by getting plane tickets for volunteers who will be on the ground during the last four days.

With only 19 days to go, it’s all hands on deck to win in Maine.  If we win, it won’t just be good for Maine couples.  It will set a new milestone in the fight for marriage equality.

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

Tonight, I’m taking a red-eye flight to Maine – arriving in Portland tomorrow.   I’ll be there for 10 days, volunteering for the “No on 1” campaign to protect marriage equality.  And I’m taking my laptop with me – so readers will get my daily dispatches.  As a Californian, the fight against Question 1 is personal.  Gays and lesbians last year had their rights snatched away, and it can never happen again.  Proposition 8 was eminently beatable, but our side ran a bad campaign – and I’m determined to take my work and experience to assist the effort in Maine.  The right has long argued that every time “the people” get to vote on same-sex marriage, it loses.  It is time to deliver them – and their consultant, Frank Schubert (who ran “Yes on 8” and is now running “Yes on 1”) a humiliating defeat, one with national implications.  But one person can only walk so many precincts.  That’s why we’ll be working to help send volunteers from across the country over the next 32 days, because everyone needs to chip in for this fight.

Why Does Maine Matter?

Ever since the Republican Party pegged gay marriage as a “wedge issue” in the 1990’s, we have seen it on the ballot in virtually ever state that has an initiative process.  And while public opinion is gradually shifting in favor of marriage equality, no state has affirmed it at the polls.  Arizona defeated an anti-gay marriage amendment in 2006, but the proposed measure also repealed domestic partnerships – which was decisive in the outcome.  Two years later, Arizona passed an amendment that only banned same-sex marriage.

But none of these defeats were more devastating than California – because gay couples never had the right to marry in other states that passed amendments.  Prop 8 was the only time this fundamental right was taken away from us (after having first been recognized.)  Now that Maine has granted marriage equality through its Governor and state legislature, we run the risk of a Prop 8 redux.  In the past year, same-sex couples have won the right in four more states – Iowa, Vermont, New Hampshire and Maine – and now the right is hell-bent on stalling our momentum on the anniversary of Prop 8.

Frank Schubert, a California consultant who ran the “Yes on 8” campaign, has been hired to run the Maine campaign to repeal gay marriage.  Earlier this year, Schubert won an award by the American Association of Political Consultants for running what was (regardless of your political views) a brilliant campaign.  It appears he is cultivating a national reputation in conservative circles as the man to hire to stop marriage equality.  Anyone offended at what happened last year should be determined to make him fail.

What are the Odds of Winning in Maine?

On the surface, outsiders may assume that Maine is “pro-gay” – given the trend of New England states approving marriage equality (only Rhode Island has yet to do so.)  But Maine is more rural and working-class than its neighbors, and northern Maine is often called the “Deep South of the Northeast.”  The state is not liberal or conservative, but relishes its independent “maverick” streak – which makes its politics unpredictable.

Yesterday, Nate Silver (who I trust more than anyone else when it comes to polling data) predicted Question 1 should lose by five points.  He based this on general demographic trends in Maine, national opinion trends on gay marriage – and calculated that in “off-year” elections, young voters are more likely to stay home.  His analysis is good, but he didn’t consider what else is on the ballot to drive turnout.  Besides Question 1, there will be a slew of right-wing tax measures (bad) and medical marijuana (good.)

Polls on Question 1 have been all over the map.  A Daily Kos poll last week had the forces of bigotry winning by two points, but a Democracy Corps poll this week had us ahead by nine points.  The Daily Kos poll queried “likely voters” – whereas Democracy Corps asked registered voters.  In other words, we’re only going to win by nine points if every Mainer votes – an unlikely prospect given that it’s an off-year.  We cannot be complacent (Prop 8 at one point was 17 points down), and the result will hinge on the ground game.

Volunteer Vacation Plans Going Well

The “No on 1” campaign has been pushing supporters – whether they live in Maine, or out-of-state – to take an October “vacation” to help the field team.  A lot of Californians still upset at Prop 8 would gladly go to Maine for at least a week – if only they knew about it, and had the means (or assistance) to go.  By working with experienced pros from the Obama campaign, we have launched “Travel for Change Maine” for this effort.  On our website, you can (a) donate airline miles to get someone a plane ticket, (b) donate money for other expenses or (c) sign up to go.

I’m now convinced that recessions are the best time to get good campaign volunteers.  A lot of our skilled and enthusiastic people coming are unemployed, so have time – but not money.  Donated airline miles have been a great way to get them to Maine.  We’ve also helped volunteers set up their personal online fundraising page – asking their friends and family to pitch in.  One volunteer planned to go to Maine for a week, but raised so much that they’re now coming for two weeks.  You can see the results here, and donate to a volunteer who has yet to meet their goal.

Pretty soon, we will also be setting up a “Drive for Equality” program on our website – where East Coast volunteers taking weekend trips to Maine for the campaign can carpool with other supporters.  Obama campaigners from California used the same software last year to send people to Nevada, and with enough exposure can have a viral effect.  Rather than keep organizers busy arranging hundreds of carpools, volunteers can find themselves on the page – and “pair up” with another person going to Maine that same weekend.

Next week is the first week of “Volunteer Vacation,” and I’m excited to report that two dozen people are coming to Maine from across the country – all who committed to work full-time for at least a week.  These volunteers will be crucial, because Maine has a very liberal “early absentee” voting law.  Early voting has in fact already started – and these volunteers will help the campaign bank as many “No on 1” votes early, making it easier to focus later in the month on those who haven’t voted yet.

Can’t go to Maine?  Help out a satellite phone-bank in your area.  Last year, the Obama campaign made more volunteer phone calls from California to the swing states than any other part of the country.  We hope to help replicate that effort this year, with volunteers ready to get involved.  In San Francisco, the Courage Campaign, Equality California and the local Democratic Party are organizing phone-banks to defeat Question 1.  Join one this weekend.

How are Maine Voters Going to React?

I’ve been asked if bringing out-of-staters to Maine will be counter-productive.  Not if last year’s experience with Obama volunteers is any indication.  The campaign sent over 7,000 Northern Californians to the “swing states” – and only three of them reported any backlash they received from locals.  If anything, said Jay Jonah Cash – who led the effort last year and now directs Travel for Change Maine – voters “really respected others who took time off to fly across the continent because they believe in something.”

One Texas volunteer who’s already out knocking on doors in Bangor has reported a friendly reception from Maine residents – despite having an obvious Southern accent.  “Mainers are what all Americans should be,” she wrote.  As Californians, I believe we can bring an important perspective to Maine voters – because we saw the same scare tactics that are now being used.  We are ashamed of Prop 8, and don’t want Mainers to fall for it too.

And if the opposition wants to call us “outsiders,” they’re opening a can of worms.  Their campaign manager, Frank Schubert, is a Californian who ran the Prop 8 campaign – and their ads are filmed in San Francisco.  More than half ($160,000) of their initial filing reports came from one source – the National Organization for Marriage (NOM), a New Jersey-based group.

Who is NOM?  I had the pleasure of debating their Executive Director on CNN once – which was fun.  But the problem is no one knows who they are, because they are not registered as a PAC with the Maine Ethics Commission – where we could see who their donors are.  Yesterday, the Commission voted to investigate NOM to see if they violated any of Maine’s campaign finance laws.

Some speculate that NOM is a front for the Mormon Church – who donated $20 million last year to the Prop 8 campaign.  In Maine, the Catholic Church is – despite its share of problems – heavily involved in the “Yes on 1” campaign.  But the Mormons have generally stayed out this time, at least not publicly.  After taking a lot of heat for their heavy-handed role in California last year, are the Mormons hiding behind this new group to influence Maine?

While NOM is under investigation, Travel for Change, is a registered PAC with the Maine Ethics Commission.  All of our finances are public record, and will be reported.  We may be helping out-of-state volunteers get to Maine to assist the campaign, but no one can accuse us of trying to hide anything.

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

There has been a lot of discussion about when to go back to the ballot to repeal Prop 8 over the last few months.

One thing we cannot do is let the clock run out. With that in mind, please read the statement we just put out to our community partners and chime in with your reactions in the comments.

From: Rick Jacobs, Chair, Courage Campaign and the staff of the Courage Campaign

To: Our friends, allies and partners in the marriage equality movement

Subject: 2010: It’s time to make a decision

I write to you today with urgency and seriousness. After months of discussion and debate, the time has come to make the tough decision.

In May, 83% of Courage Campaign members said that our organization should work with our partners to place a marriage equality initiative on the ballot in 2010. If the Courage Campaign and our allies in the movement want to initiate the repeal of Prop 8 in 2010, we must make that decision very soon.

Frankly, too much attention has been placed on the political consequences of running an election in 2010 or 2012. The bottom line is that we must begin now to convince the people of California that civil marriage rights should be made available to all people, period. None of us should have to wait one more day to achieve equality at any level.

And while I say that, I also don’t want to lose this critical battle. Going to the ballot in 2010 is a decision that obviously comes with potential consequences.

Our members told us to help build the movement, so over the last several months, the Courage Campaign has mobilized 44 grassroots Equality Teams in 23 counties across California. And we’ve held five Camp Courage trainings in communities from the coast to the Central Valley to train people to be successful organizers. Last weekend alone, 279 activists gathered in East L.A. at the most diverse Camp Courage yet, with tremendous support from the Latino and Asian Pacific Islander communities.

We’ve also been working with some of the smartest, most experienced campaign professionals in America — people who ran Barack Obama’s campaign, who know California and who can help our movement chart a course to victory. They’ve given us tough love, great advice and helped us outline the steps necessary to a successful outcome. This team isn’t telling us when to initiate the repeal of Prop 8, but they are telling us we need to start now with a persuasion campaign designed to win the hearts and minds of California voters — no matter which election year we wage the battle.

The Courage Campaign will support a repeal of Prop 8 in 2010 if our members — together with other major stakeholders involved in this movement — make a strong commitment to this campaign.

I want to be clear that no one organization can dominate what will need to be an independent, but accountable campaign operation. The Courage Campaign will aggressively support the effort, not run it. A small governing structure should oversee the day-to-day operations — giving an experienced campaign manager the latitude necessary to make smart, strategic and timely decisions. If a campaign for 2010 materializes, the governing structure should include those who did not necessarily support going to the ballot in 2010, but are necessary and fundamental partners to any campaign to win back marriage equality.

To win, we will need to run a smarter, stronger and more disciplined campaign. The first step in running a winning campaign is to ensure we use the most effective initiative language that a majority of California voters will support. This takes research – expert polling and focus group work that will help us gain the best understanding of the California electorate. And we must begin that research immediately.

Along with our allies, we need to raise $200,000 to conduct this research — and we don’t have much time to raise it. If the Courage Campaign can raise $100,000 and our partners and allies in the movement can raise another $100,000 — for a total of $200,000 — we can put the research effort in place and meet the late September deadline recommended by the Secretary of State for filing an initiative for 2010.

We are prepared to ask our members to raise $100,000 to meet our commitment to this goal. We are willing to ask the Courage Campaign community to make this commitment because they expressed their support for going to the ballot in 2010 by such an overwhelming margin.

If we can make this community fundraising goal, we can move forward. If we can’t make this community fundraising goal, then we will have to accept that the movement is not ready to produce the funding and resources necessary to support a campaign to repeal Prop 8 in 2010. And we will have to wait until 2012 to bring marriage equality to the ballot again.

Our people-powered organization is ready to win, but we are faced with the reality of these deadlines. If we want to convince a majority of our fellow Californians to support full civil marriage rights in 2010, the marriage equality movement has to stand up and commit to the cause now.

Together.

(Movement on the big Olson/Boies Prop 8 case – promoted by Julia Rosen)

July 2nd could mark the beginning of the end to Prop 8, the controversial initiative that stripped California’s LGBT population of the right to marry.

Why? Because on July 2nd, the first hearing of the federal case brought against Prop 8 by power team Ted Olson and David Boies will be heard in the North California U.S. District Court with the case assigned to Judge Vaughn Walker.

Even more dramatically, Olson and Boies, who have an amazing track record of winning cases, had requested a preliminary injunction against the initiative while the courts heard the merits of their case. In other words, this would have put the enforcement of Prop 8 in the Golden State on hold during the trial, consequently allowing same-sex marriages to occur again.

The hearing on July 2nd would’ve centered around the merits of the injunction, but Judge Walker had other thoughts in mind, calling recently for a move to “proceed expeditiously to trial.”

“Given that serious questions are raised in these proceedings … the court is inclined to proceed directly and expeditiously to the merits of plaintiffs’ claims,” the judge declared. “The just, speedy and inexpensive determination of these issues would appear to call for proceeding promptly to trial.”

(See Case Document and Motion for Preliminary Injunction, Judge Walker’s Order for Trial)

This can be seen as a very good sign. The arguments for an injunction mirror the arguments to end Prop 8 altogether, and as the judge stated in his order, this simply demands that a trial must begin right away. Why put a “band-aid” on the situation when you can end the pain altogether?

“We are encouraged that the judge wants to dispense with the preliminaries and move quickly toward a final ruling on the unconstitutionality of Proposition 8,” Olson said in a press release. “This case is about protecting people’s fundamental Constitutional rights, and we agree that it is in everyone’s best interest to resolve this matter as quickly as possible. We are prepared to move forward at as fast a pace as the court desires.”

Prop 8 may be history very soon. That’s a lot to take in. But that’s what would happen in the best of circumstances. Many different circumstances can shift the fate of this case and how Prop 8 continues its reign over California.

It can be confusing sorting out all the facts, especially given some of the controversy surrounding the case. So I decided to go straight to the source for clarification on all the different possible outcomes and ramifications and spoke to the team taking the Prop 8 to task.

But first, some background.

How the Case Began

To find out how the case came into being, I went to Chad Griffin. Chad, who is openly gay, began his political career over a decade ago as the youngest person to work on a president’s West Wing staff and now works for his own political and communications strategy firm, Griffin Schake.

Similar to the experiences of millions of LGBT across the country, Chad told me about his own on election day. “I’m a political strategist – I was devastated like everyone – such a bittersweet experience with Obama becoming president while the banning of gay marriage in California and gay adoption in my home state of Arkansas passed. It was very difficult to celebrate.”

After allowing only a few hours to be depressed, Chad and some politically progressive friends, such as movie director Rob Reiner, producer Bruce Cohen and screenwriter Dustin Lance Black, began discussing what was next.

“We’re in a war, and we discussed where we could take the war. If you have a single goal in winning that war, you want to have the opposition on the defensive on all fronts,” Chad said.  By the end of their discussion, they believed a federal case against Prop 8 would be a powerful next step.

Not long after, these friends, along with Griffin’s business partner Kristina Schake, founded the American Foundation for Equal Rights (AFER), created with the sole purpose to support this case. Not long after, they announced the board.

But who was to fight this case?

How Ted Olson and David Boies Took Up the Case

Chad recounted to me the night that he and the future board members of the AFER discussed next steps.

“We went down this path, discussing where donors can be putting their money and activists where they could be spending their time. In our discussions, someone mention that perhaps [Ted] Olson held the same view as us on gay marriage. I responded with skepticism and doubt.”

Why such doubt? If you recall the infamous presidential election of 2000 and the historical Bush V. Gore Supreme Court case which effectively determined the final result of the contested 2000 Presidential election.  Guess who argued for Bush. Ted Olson. He was later appointed by Bush as U.S. Solicitor General and served in the position until 2004.

Chad put aside his skepticism and gave Olson a call and was pleasantly surprised. They agreed to meet in Washington DC where Olson began to inform Chad of his impassioned beliefs for the equal rights of all LGBT.

“I realized I could be sitting in the room with the most eloquent, articulate game-changing spokesperson of our movement. As the conversation went on, I was quite impressed with his analysis of the legal aspects,” Chad told Unite the Fight. “We discussed timing, on now versus wait, and the arguments that could be used for and against, and the impacts on the LGBT community – how state sanctioned discrimination leads to the real life consequences, such as rising suicide rates in LGBT youth, who are being kicked out of their homes when they come out. Ted expressed his long held personal views of support for same-sex marriage.”

By the end of the meeting, Olson was on board, but Chad believed an “equally prominent co-counsel” was needed to push the case to the forefront of the fight for equal rights.

Olson suggested another powerhouse attorney David Boies, the lawyer he faced down in the Bush V. Gore case. Equally prominent indeed.

It didn’t take long to get Boies on board, and the once opposing attorneys immediately got to work. With two sets of same-sex unmarried couples with a desire to marry acting as plaintiffs, the case was filed and immediately, the media frenzy began. (AFER press conference.)

Criticisms Against the Case

Immediately, large organizations objected to the case, calling it premature and fearing that a loss could set back the marriage equality movement years if not decades.  The ACLU told Time that “The U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states.”

“Look at the Loving vs. Virginia case – if Loving would have waited for public opinion to catch up, they would have waited years if not decades,” Chad told me. “Only 17 percent of the American public were in favor of interracial marriage.”

“We’re now approaching 50 percent of the American public [in favor of marriage equality]. We have six states with marriage equality. The Supreme Court and our court system was not designed to wait on public opinion,” Chad continued.

“We can all agree to disagree on different tactics but at the end of the day, we all have the same goal – we can all agree on winning full federal rights for all lesbian, gay, bisexual and transgender people,” Chad told me. But in most cases, “The response to the case has been overwhelmingly positive.”

AFER has also continued to talk to the specific organizations that originally objected, and after hearing more about the case, they have reacted more positively.  Since this discussion, the ACLU has done a 180 and along with other organizations, has filed “friend of the court” briefs in support of the case, as well as California Gov. Schwarzenegger and Attorney General Jerry Brown.

This led me to more specific questions. Why go federal now, especially with a divided Supreme Court with a conservative makeup? What’s the grounds of the argument of the case?

Chad humbly admitted to not being a lawyer and kindly directed me to Ted Boutrous Jr., partner at Gibson, Dunn and Cruther of which Ted Olson is also a partner.

But before signing off, Chad said, “I don’t think it’s correct to say that we have a divided [Supreme] Court – we have a 4/4 with Kennedy being a swing vote. The last two gay cases winning with a 5-4 vote.”

The Timing and Specifics of the Case

“We think we can win and can win now,” Ted Boutrous told me. “Based on the Supreme Court decisions in the Lawrence vs. Texas and Romer vs. Evans [gay rights] cases, the arguments are extremely strong.”

“Olson and Boies believe we can win now, and to win, you have to go in and give the arguments,” Boutrous continued. “It’s been the Supreme Court that has really been the change agent when it comes down to striking down discriminatory laws.”

Olson has a 75% win for his cases with Boies having an equally impressive track record, and both have argued numerous cases in front of the U.S. Supreme Court. If they believe we can win, that’s not something you take in lightly.

In talking with Boutrous and reading the AFER website, I learned of the core arguments supporting the federal case against Prop 8.

According to the suit, Prop 8:

-Violates the Due Process Clause by impinging on fundamental liberties.

-Violates the Equal Protection Clause of the Fourteenth Amendment.

Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “secondclass citizens.”

-Discriminates on the basis of gender.

-Discriminates on the basis of sexual orientation.

There’s been a lot of talk about the case reaching the U.S. Supreme Court, but I wanted to know what had to happen first before it got there. Boutrous helped break it down for me.

First, the case must be heard in the  North California U.S. District Court by Judge Vaughn Walker. As mentioned, the hearing begins on July 2nd, and on this day, Judge Walker and the attorneys on both sides of the issue will determine how to “proceed expeditiously to trial.”

Second, most likely either side will appeal the ruling if it goes against their liking. In this case, it will then reach the United States Ninth Circuit Court of Appeals.

It will only be after that ruling will either side appeal to go to the U.S. Supreme Court. But even then, the high court may not hear it. They will have to decide whether or not to take the case certiorari, which is the decision of the court to review a lower court’s opinion by “rule of four.” This means, four Supreme Court justices have to agree to hear the case.

Though one could never predict how the Supreme Court justices will decide, one major deciding factor tends to be whether or not the lower courts have made opposing decisions favoring one side or the other.

Either way you look at it, it could be awhile before the U.S. Supreme Court hears any case on Prop 8.

But I still had questions about the ramifications of the case going through the court system. What if the case wins? What if it loses? What effect, if any, will it have on a new initiative to repeal Prop 8 in either 2010 or 2012?



Ramifications of the Federal Case Against Prop 8

“First, we strongly believe we’re going to win,” Boutrous reiterated. “Second, whatever the court rules, it will be a crucial and necessary step to ultimate victory in equality for all. It’s not an all or nothing case.”

When I asked him what he meant, he explained, “This case will lay the foundation and create building blocks for future cases. Unless the courts begin now to examine these federal constitutional issues, it could be decades before progress is made.”

But isn’t it still a big risk for the movement?

“When you file a lawsuit like this, lawyers and clients need to do an analysis, and we determined now is the time do raise these challenges,” Boutrous said, again pointing to the phenomenal expertise of Olson and Boies.  “You do have to factor in the inherent challenges – We expect to win.”

“You’re not going to be able to gain your constitutional rights unless you go into court and argue for them,” he noted. “We think either way its crucial to get this issue before the Supreme Court now, or it can take 10, 20 30 years before we gain equality for all.  We think this is the time to raise these claims, we think we’re going to win.”

So what will it do for our rights if the case gains final victory?

“It could lead to the elimination of barriers across the country by the way the ruling is framed,” Boutrous answered.

But specific rights gained either just in California or nationwide lie in the details of the Supreme Court ruling itself, which no one can predict.

“With the Supreme Court, it could rule broadly [for all of the nation] or a targeted way against Prop 8, but we believe either way, the ruling would have signification ramifications across the country,” Boutrous told me.

In other words, California LGBT residents may earn back their right to marry, but the state-by-state battle would still continue. Or, the Supreme Court can say to hell with all the laws in the nation banning same-sex marriage, and the whole U.S. LGBT population will finally be allowed to legally marry and gain federal recognition.

How will this case affect a repeal Prop 8 effort in California in either 2010 or 2012?

Boutrous echoed Chad’s earlier words about fighting for LGBT rights on all fronts, both at the local level and at the federal level. If Prop 8 is overturned through a voter referendum, it could in fact render their case “moot.”

“We could very likely be geared to file a lawsuit in another state that continue to ban same-sex marriage. If Prop 8 were overturned at the ballot box, we would likely take everything that we have done in California and fight the battle there.”

“Olson and Boies are on opposite sides of the political aisle.  We think, to the public, this could help enhance the likelihood of success at the ballot box,” Boutrous continued. “If the worst news we get is that the voters have wiped Prop 8 off the books at the ballot box, then we will reevaluate our case with smiles on our faces.”

After talking to the very helpful Ted Boutrous Jr. and Chad Giffin, I was ready to type up everything I learned and share it to the Unite the Fight leadership.

But then the horrible and offensive Department of Justice (DOJ) brief defending DOMA was released under the watch of Obama’s Administration in reaction to another federal case. As I got caught up in reporting on the brief, I kept thinking, “What bearing at all does this have on the Prop 8 case?”



The Consequences of the DOMA Brief for the Federal Case Against Prop 8

Armed with new questions, I was directed to to speak to Gibson Dunn and Crutcher partner Matthew McGill, who is on the Prop 8 litigation team at the firm.

I jumped right in, asking, “The DOJ just issued a brief defending DOMA, and stated that ‘DOMA Is Consistent with Equal Protection and Due Process Principles.’ Though your case is against Prop 8 and not DOMA, doesn’t this still cut down the core of your argument against it? How will this affect your case?”

McGill didn’t skip a beat.

“We don’t think it affects it very much if at all,” he said. “The analysis is quite different as to whether a federal statute violates the [Equal Protection] principles as opposed to this particular state provision. We think it’s an entirely different analysis.”

“We think that the government’s defense of DOMA is quite wrong and wrong-headed. It’s not a defensible position for any number of independent reasons,” he continued. “When the government discriminates, it has to have a reason. For certain forms of discrimination, it has to have a really powerful reason.”

“Some of the interests that the government might use to defend DOMA arise out of the fact that the federal government uniquely has to deal with 50 states plus DC and Puerto Rico and other territories and all of these state regimes at the same time,” McGill said. “The federal government argues this allows it to apply the lowest common denominator when it comes to marriage equality. It only need recognize as valid marriages the stingiest state view of marriage.”

So where does Prop 8 fit into this?

“That argument is simply not available to defend Prop 8,” McGill answered. “[California] is not in the position of the federal government having to contend with 50 different legal regimes.”

“When you’re taking on a federal statute like DOMA, you’re taking on the United States,” McGill told me. “I think part of the reason we’ve chosen at this point to limit our challenge to Prop 8 is to take things one step at a time. When people heard that a federal lawsuit had been filed, they assumed it was an all or nothing gambit for those seeking marriage equality. And that’s simply not true. We’d be very satisfied to establish marriage equality in California, and then work from that precedent to move and take on the next battle in a position of strength.”



Thursday, July 2nd

So, with my questions having been answered by the helpful team fighting Prop 8, I now wait with bated breath for Thursday, July 2nd, to watch them in action as the hearings for the case begin, leading hopefully to a speedy trial, and ultimately, the end of Prop 8.

No one said this was going to be an easy fight, nor did they claim there was one path to victory.  But in my humble opinion, it can’t hurt to be fighting on all fronts, including the extremely difficult federal front. But with the amazing Olson and Boies on our side, a team that Chad beautifully described as our movement’s “grandest of coups,” how can we not support it?