"Overturning the will of the people": we've been down this road before

Once upon a time, there was a decision in California that extended protections and rights to an unpopular minority.

The response was a ballot initiative to reverse the decision, and to amend the state constitution so that the protections and rights were rolled back. This passed convincingly at the ballot box.

There was a legal challenge. The state refused to defend the amendment, to the ire of its supporters.  The courts stepped in, and ultimately found that that the amendment was unconstitutional. Despite the support of the majority of voters, it was declared invalid.

Proposition 8? No.

I'm talking Proposition 14, which was passed in 1964 with a whopping 65% majority, and ultimately declared unconstitutional by the US Supreme Court in 1967.

The story: in 1963, the California legislature passed the Rumford Fair Housing Act that stated property owners could not refuse to rent or sell property to anyone because of ethnicity. It also included religion, sex, marital and family status, and physical handicap. This was considered an important landmark for civil rights.

In 1964, Proposition 14 (sponsored by real estate and Republican groups) stated that property owners could indeed discriminate. As I said, it passed convincingly.

When it was challenged in court, the state declined to defend Proposition 14, because  Gov Pat Brown (Jerry Brown's father) considered it unconstitutional.  The California Supreme Court found that Prop 14 violated equal protection clause of the fourteenth amendment.

The Supreme Court of the US agreed. In Reitman v. Mulkey (1967), SCOTUS invalidated Prop 14 by a 5-4 decision.  From the decision, they pointed out the real consequences of Prop 14:

The right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State's basic charter, immune from legislative, executive, or judicial regulation at any level of the state government. Those practicing racial discriminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from censure or interference of any kind from official sources. All individuals, partnerships, corporations and other legal entities, as well as their agents and representatives, could now discriminate

As Wikipedia tells us, "Reitman established a significant precedent because it held that state assistance or encouragement of private discrimination violated the equal protection guarantee of the Fourteenth Amendment. As of 2013, this precedent remains good law."

You might want to pass this along to the bloviating anti-equality die-hards, who continue to advocate for the right to do just that.

New Poll in CA: marriage support 61%

ThinkProgress points us to a new Field poll :

The Supreme Court decides....

Not to decide.  At least, not today.  They may tell us on Monday.  Or Tuesday,  Possibly next Friday.  Or maybe the Monday after that.

Here's a detailed overview on what the cases are and what we might expect.

From an op/ed at ScotusBlog:

I have never before seen cases that I believed would be discussed two hundred years from now.  Bush v. Gore and Obamacare were relative pipsqueaks.  The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound.  So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.
...
The striking feature of these cases – not present in any others I have ever seen – is that that they would have been decided by the Justices’ predecessors one way and would be decided by the Justices’ successors another way.
….
Our country and societies around the world will read the Justices’ decision(s) not principally as a legal document but instead as a statement by a wise body about whether same-sex marriages are morally right or wrong.  The issues are that profound and fraught; they in a sense seem to transcend “law.”  Given the inevitability of same-sex marriage, if the Court rules against those claiming a right to have such unions recognized, it will later be judged to be “on the wrong side of history.” 

But the verdict of history cannot decide the legal questions presented by these cases.  The cases arrive today, in this moment, before our cultural transition has completed.  In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims.  But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future.  They will have to make a judgment now

Courage Campaign FlashMob (video Sunday)

At the California State Republican Convention late last year:

From the decision

It's 2-1.  THe opinion is narrow, applying specifically to the unusual situation in CA where a right was given and then taken away. This probably makes it a sturdier decision. From the opinion (my emphases)

….all parties agree that Proposition 8 had one effect only.  It stripped same sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right--the right to obtain and use the designation of 'marriage to describe their relationships.  Nothing more, nothing less.  Proposition 8 therefor could not have been enacted to advance California's interests in childbearing or  responsible procreation, for it had no effect on the rights of same sex couples to raise children oron the procreative practices of other couples.  Nor did Proposition 8 have any effect on religious freedom or on parents' rights ot control their education: it could not have been enacted to safeguard these liberties.

All that Proposition 8 accomplished was to take away from same sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage' which symbolizes state legitimization and societal recognition of their committted relationships.  Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite sex couples  The Constitution simply does not allow for "laws of this sort" (Romer v. Evans.)

Support for equality in California growing among republicans

From the Capitol Hill Weekly, which focuses on California Politics:

Public opinion on same-sex marriage in California has flipped faster than many people thought it would. According to data from the Public Policy Institute of California (PPIC), the change was largely driven by Republicans and independent voters.

The opinions of people over 35 have barely budged on the issue, but support for same-sex marriage has surged among younger voters. Young voters, however, traditionally show a poor turnout – unlike older voters, who often vote in proportionally higher numbers.

Isn't it sad, then, that we aren't trying to reverse Prop8 at the ballot box, and are relying on the far riskier courts in a time of excessive polarization and a hideously conservative SCOTUS.

I graphed the numbers which makes it more obvious.

How do they do it? The roadmap of the anti-equality forces

Writing over at Pam's House Blend, Alvin McEwan lays out the roadmap used by the anti-equality forces over, and over, and over again.  A must-read.

The North Carolina Legislature has passed a bill to allow its citizens to vote on a state constitutional amendment against gay marriage.

The majority of folks in NC are against this amendment but that is considered a minor detail by the organizations and people pushing it. ...

The untold narrative usually goes like this:

People in the targeted states are so generally worried about more pressing issues that they allow their legislatures to be the first salvo in what can be called an invasion, i.e. laying the groundwork by passing a bill, thereby forcing constituents to vote on the matter.

Then an organization – usually the National Organization for Marriage – is the second part of the invasion via its virtually unlimited funds supplied by secret donors (which the group has fought tooth and nail not to reveal), that pays for the inundation of robocalls, mailers, and commercials spinning a multitude of lies about gays harming children or gays persecuting Christians, or gays causing all sorts of mayhem in general if the amendment is not passed.

At the same time, the organization stroke the egos of area pastors and public leaders....

The organization – again usually NOM – wins the vote and while it brays about how “the community stood up to protect marriage,” the community in actuality deals with strife, hard feelings, broken families, and generally not understanding why their votes to “protect marriage” hasn’t put food on their tables, more money in their paychecks, or made their lives better.

All of this is documented from all the past battles: Prop8 (CA), Question 1 (ME), etc etc. Now we have Amendment 1 (NC), as well as the vote in Minnesota. The lies begin. The hate. The families and friends divided. We still haven't recovered in California. The damage was huge. That's what MN and NC face next. Sadly, that will be true regardless of the outcome--becuase the damage is done not just by the vote, but by the campaign.

(Another) Federal Court finds against DOMA

No, not that one! Another case, not Prop8, in which a US Bankruptcy Court rules DOMA unconstitutional. Here's a case from CA where a married gay couple wanted to file bankruptcy, and went to court because they were not afforded the same treatment as a straight couple would be. The US Trustee opposed them. As the brief for the decision says,

As the Debtors state, “[T]he only issue in this Bankruptcy Case is whether some legally married couples are entitled to fewer rights than other legally married couples, based solely on a factor (the gender and/or sexual orientation of the parties in the union) that finds no support in the Bankruptcy Code or Rules and should be a constitutional irrelevancy.” Debtors’ Opp. 5:24–28. In this court’s judgment, no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple

The brief cites Att. Gen. Holder's letter that DOMA is unconstitutional. It cites the evidence from Perry v. Schwarzeneggar (the Prop8 federal case). It summarizes the arguments against equality clearly, finding the following reasons insufficient:

• Defending or nurturing the institution of traditional heterosexual marriage(the Debtors are already married to each other, and allowing them to proceed jointly in this bankruptcy case cannot have the slightest cognizable effect on anyone else’s marriage);
• Defending traditional notions of morality (the Debtors’ joint bankruptcy filing is in no sense discernible to the court to be a validly challengeable affront to morality, traditional or otherwise, under the Fifth Amendment); or
• Preserving scarce resources (no governmental resources are implicated by the Debtors’ bankruptcy case different from the resources brought to bear routinely in thousands upon thousands of joint bankruptcy cases filed over the years).

Accordingly, the Judge finds,

The Debtors have demonstrated that DOMA violates their equal protection rights afforded under the Fifth Amendment of the United States Constitution, either under heightened scrutiny or under rational basis review. Debtors also have demonstrated that there is no valid governmental basis for DOMA. In the end, the court finds that DOMA violates the equal protection rights of the Debtors as recognized under the due process clause of the Fifth Amendment.No one expressed the Debtors’ view as pertinent to this simple bankruptcy case more eloquently and profoundly than Justice William O. Douglas in the concluding paragraph of his opinion for the majority in Griswold v. Connecticut
, 381 U.S. 479, 486(1965):

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not in political faiths; a bilateral loyalty, not commercial or social projects.Yet it is an association for as noble a purpose as any involved in our prior decisions.

Upon consideration of the pleadings and all other materials filed in this case, andfor good cause shown, the court finds that the Debtors satisfy every legal requirement to pursue their joint petition as filed pursuant to § 302(a). For the reasons stated herein and in the Debtors’ Opposition to the Motion and Debtors’ supporting authorities, the Motion to Dismiss Debtors’ chapter 13 case based on § 1307(c) is denied.

Prop8 appeal: next step this week?

From the SF Gate:

Chief Justice Tani Cantil-Sakayue says the California Supreme Court will decide soon, maybe next week, on whether to enter the Proposition 8 gay marriage fray.

The 9th U.S. Court of Appeals said last month that it cannot decide if the gay marriage ban is constitutional until the state high court weighs in on whether proposition sponsors have authority to defend the measure.

A three-judge panel asked the California Supreme Court to decide if ballot proposition backers can step in to defend voter-approved initiatives in court when state officials refuse to do so. The panel suggested it would have to dismiss the case if there's no state high court input.

Religious freedom in CA: SB 906 restates the obvious

The Rev. Susan Russell, an equality activist, points out this insanity from the conservative CNSnews:

Religious leaders warn that if an Aug. 6 ruling by a federal judge on same-sex marriage is upheld, it could wind up putting a gag on Christians speaking out about homosexuality – a gag that a top Southern Baptist leader says his denomination will not accept.

Go over to Susan's site and see her righteous takedown of this craziness.

The first amendment protects religious speech. And any clergy person may legally refuse to marry any couple, for any reason. These are simple facts.

Despite this, however, the Prop8 campaign and the liars of the anti-equality movement have inflamed fears that they will be forced to marry gays, or that they will have to stop preaching against gays. This has allowed them to frame the argument as an issue of religious freedom: as though denying OTHERS' religious freedom somehow benefits theirs. And many people during the campaigns have bought this talking point.

In a recent poll released by the Public Religion Research Institute, specifically about Prop 8, the pollsters found that support for marriage equality in the Golden State is around 51%. If, however, civil unions are an option, 42% support marriage, with another 31% for unions.

However, support for marriage increases with specific reassurances:

A significant number of Californians who initially say they support civil unions but not same- sex marriage are willing to support marriage equality if the law addresses either of two basic concerns about religious marriages. When presented with an assurance that the law would guarantee that “no church or congregation would be required to perform marriages for gay couples,” nearly one-third of Californians who initially only supported civil unions are willing to support marriage equality. With this religious liberty reassurance, support for same-sex marriage increases 12 points, from initial support of 42% to a solid majority at 54%. Similarly, when Californians are presented with an assurance that the law “only provided for civil marriages like you get at city hall,” more than half of Californians who initially supported only civil unions are willing to support marriage equality. This civil marriage reassurance results in a 19-point increase in support for same-sex marriage, from 42% to more than 6-in-10.

To make this freedom explicit, CA State Sen Mark Leno introduced Senate Bill 906, which has now passed the Assembly. THis bill

reaffirms the separation of church and state and clarifies under state law that no member of clergy will be required to perform a civil marriage that is contrary to his or her faith. The Assembly approved Senate Bill 906 with a 46-25 vote. The bill will return to the Senate for a routine concurrence vote before going to the governor’s desk.

“This bill simply affirms that California is a diverse state, and that we can all co-exist and make space for each others’ beliefs without compromising the tenets of any religious group or individual,” said Senator Leno. “With the recent federal court ruling, we know that marriage for same-sex couples in California is on the horizon. Under the Civil Marriage Religious Freedom Act, churches and clergy members who fear their religious views are threatened by marriage equality will have clear and solid protections under state law. In addition, churches that welcome same-sex couples will continue to fully recognize those families within their faith.”

Of course, the right wing opposes this bill, with lunatic arguments like this one from a Roman Catholic opponent of SSM:

"SB 906 seeks to cause confusion by creating a new 'civil' class of marriage, implying it is different from religious marriage.

Of course, there has always been a separate civil marriage, given that couples can be married by the county clerk with no religious expression at all.

" It also creates the illusion of new protections for 'religious' marriage by essentially saying that religions can't be forced to change their doctrine on marriage (which is already prohibited by the 1st Amendment).

Yup, it does simply restate the 1st Amendment. It does this because the opponents to SSM apparently don't understand what religious freedom really means.

"It is clear this bill will be used to fool the voters into thinking that same-sex 'marriage' will have no impact on churches and people of faith."

Umm, is that because it WON'T have any impact--except on those churches who WANT to marry same sex couples.

They are panicked out of their mind to lose this favored talking point and spinning their wheels violently. Because if protections are explicitly stated, support for equality goes up.

New polls in California narrowly favor marriage equality

Two new polls to notice. First, a new Field Poll finds 51% of the Golden State favors same sex marriage rights.

The SF Chronicle cautions:

Although a majority of California voters say they support same-sex marriage, that endorsement is as tenuous as it was two years ago when voters told pollsters that they approved of the idea but still voted to ban the marriages.

A Field Poll scheduled to be released today shows little has changed since May 2008, when 51 percent of voters said they supported same-sex marriage, only to ban it by approving Proposition 8 six months later.

So we're back where we started.

Meanwhile, Public Religion Research also has some numbers:

•Only one-in-five (22%) Californians believe the passage of Proposition 8 was a “good thing” for the state. Most Californians believe Proposition 8 was either a bad thing for California (29%) or believe it has not made any difference (45%).....

•If another vote similar to Proposition 8 were held tomorrow, a majority (51%) say they would vote to allow gay and lesbian couples to marry, compared to 45% who say they would vote to keep same-sex marriage illegal.

•There are major religious groups on both sides of the debate over same-sex marriage in California. Solid majorities of Latino Catholics and white mainline Protestants say they would vote to allow gay and lesbian couples to marry, while solid majorities of white evangelical Protestants, Latino Protestants, and African American Protestants say they would vote to keep same-sex marriage illegal....

•There is a striking Catholic-Protestant divide within the California Latino community on public policy issues related to gay and lesbian rights. A majority of Latino Catholics (57%) say they would vote to allow gay and lesbian couple to marry, compared to just 22% of Latino Protestants.....

•.... Mainline Protestants are the only major religious group that is more likely to hear positive than negative messages about homosexuality from their clergy.

Diana Butler Bass writes in the HuffPo:

It is not the job of religious communities to legally deny marriage to homosexual couples; it is their job to make sure that homosexual people make healthy, faithful, and respectful moral decisions regarding the exercise of their sexuality.....Progressive and mainline clergy seem to be having an impact on ways in which the Bible is interpreted: Californians who heard "positive messages from the clergy" about gay and lesbian people overwhelming supported either same-sex marriage (60 percent) or civil unions (22 percent).

H/T James

California's "gay cure"

There's an old, old law on the books in CA mandating research into the causes and cures for homosexuality. AB2199 would repeal this law, recognizing that modern science and medicine agree that being gay or lesbian is a variant, not a pathology.

Of course, the Forces of Evil want the law to stay on the books. As EQCA says ,

The anti-LGBT right-wing is trying to kill EQCA's bill to repeal the California law that instructs health officials to conduct research into the "causes and cures of homosexuality." Why? Because they know that when people learn that sexual orientation is not a choice and cannot be changed they are much more likely to support full equality.

Head on over there and sign their petition asking the Governor to sign the bill.

As the SF Chronicle opines,

The state has far better things to do than hunt down a "cure" for sexual orientation. But the insulting language remains on the books, so Assemblywoman Bonnie Lowenthal, D-Long Beach, has introduced AB2199 to scrub it. But there's no question that it should pass..... The idea of searching for a homosexuality "cure" is insulting, absurd and rooted in ignorance.