Jo Becker's new book

Reporter Jo Becker was embedded in the Prop8 campaign and has written a book about it.

The problem some commenters have is that her book gives all the credit for marriage equality to Chad Griffin and Ted Olson, with decidedly short shrift to other activists like Andrew Sullivan, Evan Wolfson, and Mary Bonauto.

Several prominent LGBT writers have scolded Becker for apparent hagiography.  I have to say, comparing Chad Griffin with Rosa Parks (as apparently she does on the first page) seems a bit much.  

The fact remains that Prop8 was overturned on a technicality, and the $6m effort of Boies and Olson to ride to the rescue on nationwide marriage equality didn't work.

Nathaniel Frank:

Ultimately, Becker implies that the righteous impatience—and even impetuousness—of Griffin and Olson were responsible for driving a “tectonic shift on the issue of marriage equality” and “bring[ing] marriage equality to the nation.” Note: This hasn’t happened yet—fewer than half the states have marriage equality—so this suggestion is absurd on its face. Becker simply assumes that her protagonists caused, rather than reflected, a shift already well under way....  

In reality, the Griffin-Olson team joined the cause at the 10-yard line, did terrific work in moving the national conversation forward, and tried a risky strategy to win nationwide marriage equality at the Supreme Court—which failed. They added (back) exactly one state, California, furthering the successful state-by-state strategy that was already winning because of the lifelong work of Evan Wolfson, Mary Bonauto, and countless other gay advocates. That work will be responsible for national marriage equality when it finally happens.

Chris Geidner

Forcing the Spring just doesn’t get it right. 

Emblematic of the problems that plague the book is Becker’s treatment of the speech that screenwriter, and eventual AFER board member, Dustin Lance Black gave at the OutGiving conference for LGBT donors held by Tim Gill’s Gill Foundation in March 2009. 

“If there was applause, Black didn’t remember any,” Becker writes. “Instead, he recalled an ocean of pursed lips and crossed arms, and that he was literally trembling as he walked off stage. … Tim Gill … denounced Black outright, telling the crowd he was naive and misguided.” 

Video from the event provided to BuzzFeed, though, shows that the speech was interrupted with applause five times. At the end, at least some members of the audience gave Black a standing ovation, the video shows....

So, she actually lies about the speech.  And this is reporting?  Geidner concludes,

The small universe of people who constitute Becker’s sourcing for the book — and her apparent unwillingness to explore alternative reasons for or views of the developments those sources discuss — make the book a dangerous draft of history.

 

Politically correct purges: JUST STOP IT

Does anyone remember Richard Grenell? He went to work for the Romney campaign and was hounded out when Evangelicals became outraged to discover he was gay. His being gay had nothing to do with the Romney campaign (after all, the anti-gay message is pretty strong in  Republican presidential campaigns) and nothing to do with his job. He was essentially not allowed to continue simply for being gay.

Cue the outrage: the man was hounded out of his job because he is gay.

Well, it's happening again.

Mozilla/Firefox has appointed Brendan Eich as its CEO: a man who supported Prop8 by giving a donation to the campaign. The company itself has a good diversity profile; there's no evidence that he's going to change that. In fact, he specifically that there won't be changes. But, based on a personal donation he made 6 years ago, some developers have called for a boycott of the browser. Simply because they disagree with the personal politics of the CEO.

Now, readers of this blog know that I was an ardent opponent of Prop8. As a gay, married Californian, I have a strong interest in this fight.

And I will tell you that boycotting Mozilla over the personal opinion of Brendan Eich against gay marriage is outrageous.

Look, we promote the idea that people who oppose marriage equality should live in peace in the secular sphere. It's the price of having a socially diverse civil polis. We promote tolerance. WE say we can live together even if we disagree.

Not if we're doing this sort of politically correct thought-policing, we can't.

This is no different than the firing of Richard Grenell. Or, to use another example from the news today, no different from the reversal of the World Vision charity which now says it will never, ever, hired a married gay person.

Indeed, it ties into the Hobby Lobby case currently before the Supreme Court, by saying a company has the right to control the personal behavior of its employees.

Their thoughts, if you will.

You will be assimilated, or you will be fired.

From the American Conservative: (my emphases!), an excellent piece on why we have to stop these purges:

Balkanized businesses, which only hire employees or leaders that are politically palatable to their donors and customers aren’t economically or socially efficient. Instead of creating weak-tie relationships across ideological divides, they segregate people who disagree, fostering a fear of contamination by association. This exclusionary approach raises the stakes of political conflict dangerously high. When the losing side of a debate is blacklisted, all disputes become wars of annihilation. 

When Eich donated to Proposition 8, his state was split on the issue; the measure passed by a 4.5 percent margin. If, less than a decade later, the losers of that fight are unemployable, the next group on the losing side of a historical shift has every reason to fight dirtier, while time is still on their side….

But neither side benefits from policing orthodoxy as tightly as these boycotts would do. World Vision made its policy shift in the service of this kind of neutrality; since some of the churches it worked with and the states it operated in recognize gay marriage, World Vision would respect, but not praise, their policies. That turned out to be unacceptable to its donors, who saw anything less than exclusion as tacit endorsement.

A healthy body politic requires that there be room to be wrong and still belong to normal society and commerce. A society that won’t live together can’t learn from each other.

REvised Prop8 timeline

You can also find this on its own permanent page, here.

Celebration from the SF gay men's chorus (video Sunday)

"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.

It's over

The California Supreme Court has denied the petition by Prop8 proponents seeking to stop marriages in the state.

ProtectMarriage had argued that the federal order in the case only applied narrowly to the two couples, that all other counties in California were obligated to enforce Prop 8, and other issues that would have led to enforcing Prop 8 across California, except for two counties. The state had argued that the petition was an attempt to make changes to a federal court’s order in California state courts, a move that is not permitted by the federal Constitution.

So it's over.

And while our opponents are seething that the "will of the people" has been denied, may I remind them (yet again) that we do not have a direct democracy, we have a republic and with that, a balance of powers in which the Courts work to protect the rights of the minority.

So, even though in the Civil Rights era, a majority of voters in the south surely would have voted to keep Jim Crow laws intact, they fell.  And even though a majority of Americans disapproved of marriage between the races, those laws also fell.

A majority does not get to take away rights from a minority based solely on numbers.

San Diego county clerk embarrases everyone

We have all been expecting one of the 58 county clerks in CA to join the H8ers in their attempt to shut down marriages in CA.  But I'm sure everyone thought it would be one of the clerks in Red California--the largely conservative, rural inland areas.

How embarrassing that it turns out to be the clerk in San Diego.  While San Diego trends fiscally conservative, and there are pockets of social conservativism, most of the Republicans are practical business types.  San Diego has actually become quite gay friendly.  Our last mayor (a Republican) was a marriage supporter, and the Republican nominee to replace him is openly gay. 

You should have no doubt about where this originates:

Dronenburg’s lawyers, the Freedom of Conscience Defense Fund, it should be noted, have on their board of directors one concerned citizen of note not mentioned in his Supreme Court petition: Maggie Gallagher, co-founder of NOM, the National Organization For Marriage, the group that was the top financial contributor responsible for getting Prop 8 on the ballot in 2008.

Meanwhile, the LA Times notes that the largely-Republican County supervisors are quite annoyed. 

 San Diego County's Board of Supervisors, a majority of whom are Republican, sought to distance themselves from Dronenburg's action, which was filed for him by Charles S. LiMandri, a Rancho Santa Fe attorney and leader of the bid to restrict marriage to a man and a woman.

"The county clerk has acted independently on this matter,'' board Supervisor Greg Cox said. "No one else from the county was consulted or had any part of this court action, including the Board of Supervisors. The county's position is and always has been that we, the county, will follow applicable law with regards to same-sex marriage." 

Supervisor David Roberts, who is gay, said that as soon as he heard what Dronenburg had done, he demanded a meeting to find out his motives. 

"I was livid, to say the least," Roberts said. "As the first LGBT supervisor, with a married partner, I felt this was a slap in the face. But he says that's not what this is about. We'll see." 

....
Gay rights groups reacted with rage and disdain to the latest filing. 

Ted Boutros, one of the lawyers who challenged Proposition 8 in federal court, said the petition was "just as meritless and desperate" as the one filed by ProtectMarriage. It cannot change the fact, he said, that "marriage equality has returned."

Importantly, the clerk continues to issue licenses and people continue to get married in the meantime.

Inside look at the first marriages after Prop8 falls (video)

From AFER :

How history supports the SCOTUS decisions on marriage

From Inside Higher Education:

Rarely have historians played as important a role in shaping the outcome of a public controversy as in the same-sex marriage cases.... 

Briefs filed with the Supreme Court by the American Historical Association and the Organization of American Historians demonstrated that far from being a static institution, marriage has profoundly changed its definition, roles, and functions, and that today's dominant marital ideal, emphasizing emotional intimacy, has nothing to do with gender. Currently, marriage's foremost public function is to distribute benefits, such as those involving health insurance, Social Security, and inheritance, making it all the more valuable for same-sex couples. 

... the historians showed that two broad themes characterize the shifting law of marriage in the United States. The first is the decline of coverture, the notion that a married woman's identity is subsumed in her husband's. A second theme is the overturning of earlier restrictions about who can marry whom.
...
Marriage today bears scant resemblance to marriage even half a century ago, when the male breadwinner family prevailed and dual-earner and single-parent households were far rarer than today. The contemporary notion of marriage as an equal, gender-neutral partnership differs markedly not only from the patriarchal and hierarchical ideals of the colonial era, but from the notion of complementary spousal roles that predominated during the age of companionate marriage that prevailed from the 1920s into the mid-1960s.
Change, not continuity, has been the hallmark of the history of marriage. ... 

History, in the same-sex marriage controversy, was not simply "preface" -- an interesting but ultimately insignificant detail in cases involving equal treatment under law. History lay bare a series of dangerously misleading assumptions -- above all, the notion that same-sex marriage deviates from a timeless, unchanging marital norm.

How we got here: AFER's journey to SCOTUS (video Sunday)

The possible outcomes at SCOTUS

From Lambda Legal:

Former opponent David Blankenhorn: why fighting equality is wrong

David Blankenhorn was one of the two "expert witnesses" who testified in favor of Prop8. He subsequently reversed his view and came out against it. From an Op/Ed in the LA Times: 

A very few years ago, most Americans (including me) viewed the idea of gay marriage as both undesirable and wildly improbable. Today, most Americans (including me) believe that permitting gay and lesbian couples to marry is the right thing to do, a matter of simple justice. ...

It may sound trite, but for me the key was the gradual breakthrough of empathy. I found that as friendships develop, empathy becomes at least possible, no longer kept at bay by a wall of fixed belief. Put simply, becoming friends with gay people who were married or wanted to get married led me to realize that I couldn't in good conscience continue to oppose it.

But another reality was also becoming clear. At the same time that gay and lesbian couples and their supporters are struggling for the right to marry, millions of straight couples are abandoning marriage entirely, with tragic consequences for them and their children. Further, this abandonment is occurring among our once heavily married middle and working class.
...
This class-based marriage divide is not only large, it's constantly getting larger. Scholarship shows that it's contributing significantly to the rise of economic inequality. I don't think it's an exaggeration to say that it's threatening the American dream.

....: The goal of marriage equality is to make marriage available and achievable for all who seek it — gay and straight, the upscale minority and the non-upscale majority. And the strategy for achieving full marriage equality is a strategy of strange bedfellows: social conservatives and gay rights liberals, a coalition that could put an end forever to the conflict between gay rights and family values.

That coalition is waiting to be born, no matter what the Supreme Court decides.

 

What happens if SCOTUS punts?

From the LA Times:

The justices could decide that the sponsors of the ballot measure outlawing same-sex marriage had no legal right, or standing, to defend it in federal court. That would end the case in Washington, but it is not clear what it would mean for California. 

If state officials declared Proposition 8 dead, relying on U.S. District Judge Vaughn R. Walker's 2010 ruling against the measure, same-sex weddings could commence within weeks or months. Or there could be another legal fight over the reach of Walker's ruling.
That technicality has prompted fierce arguments among prominent law professors over legal procedure.

Depending on what the Supreme Court decides, a ruling on standing could provoke a fight over whether the San Francisco judge's decision applies statewide or only to the two couples who sued or the counties where they live, Los Angeles and Alameda.

So,  Gov. Brown could view Judge Walker's ruling as a statewide mandate....

Such a step conceivably could lead to same-sex weddings before a court even had time to rule on the breadth of Walker's ruling. The judiciary would still have the final say, though, and could stop the nuptials once a challenge was filed.

It appears that both sides may have dropped the ball to prevent this.

During the 9th Circuit's hearing on the case, Judge Stephen Reinhardt grilled the Proposition 8 challengers on why they had not named more defendants to ensure a statewide impact....

They didn't think it was necessary.  But meanwhile

ProtectMarriage, the sponsors of Proposition 8, insist that Walker's ruling affected only the two gay couples who sued. But the group did not appeal the scope of his injunction at the time.

So then what?
If the Supreme Court determines that ProtectMarriage has no standing, the group would have to find a surrogate, possibly a county clerk opposed to gay marriage, to make its arguments in court. And that clerk would then also have to show standing. 

"One would hope our opponents would say it is time to stop this fight and move on to something else," Boutrous said.

That's naive.  Our opponents have made an industry out of this and are making serious money opposing equality. I am not sanguine that anyone will be marrying in California any time soon.

Paying the price for equality

Have we won? Some commentators argue that it's all over bar the shouting, that the breathtaking steps towards marriage equality in the last 6 months prove that equality is now guaranteedas this article suggests:

But full legal equality is inevitable, as polls show overwhelming majorities of young people do not hold the same prejudices against homosexuals as their parents' and grandparents' generations. ….

Still the author admits

That gays won the culture war may seem paradoxical in light of the fact that, in most states, they still cannot get married or obtain civil unions (something which the Supreme Court is unlikely to change in its pending decision). The victory might also come as cold comfort to gays living in the 29 states where they can be fired due to their sexual orientation. 

Paradoxical?  You bet. The constitutional amendments against marriage equality will be difficult and in some places nearly impossible to overturn. And, we have hardly won if we can be fired for mentioning we have a same-sex partner. We have made progress, but not nearly as much as the media thinks.

 For one thing, there's the backlash, with a steep increase in anti-gay violence culminating a few days ago in a murder in NYC, of a young man, simply for being gay.

From the HuffPo:

Carson's murder highlights the shortcomings of a rights-based, marriage-based approach to LGBT equality, and cries out for deeper, and more difficult, forms of engagement.

With states falling like dominos into the marriage-equality camp, many have expressed shock that homophobic hatred and violence is "still" possible. But why is this shocking? The advent of civil rights for African Americans did not end racial violence, still widespread nearly 50 years after the Civil Rights Act. Feminism has not ended violence against women. Indeed, from Seneca Falls to Selma to Stonewall, to echo President Obama's historic turn of phrase, legal inequality is only the tip of the iceberg. Submerged beneath it are deep-seated patterns of injustice, privilege, prejudice and fear.…

In social struggles, legal equality is not the beginning of the end, but the end of the beginning. Yes, the state's imprimatur upon animus is now being, gradually, removed. But the animus itself remains. Carson's murder; the other acts of violence against LGBT people in New York… are not vestiges of bygone days we thought we'd left behind. Rather, they are a reminder that most of the work still lies ahead.

That's for sure. It's all too easy to fall into the lull that it's all okay.   But anti-gay attitudes are not vestigial.  They are mainstream.  In Virginia, the GOP has just nominated for Lieutenant Governor a man who defines hate speech against gay people with his lies and insults.

So, as the backlash escalates and the rhetoric becomes more poisonous, we must be more careful. Every gay person knows how to guard their contact with each other, to be wary all the time, as described here:

It's a practice well-learned, the art of coming together and slipping apart -- every corner starts not with a footstep but with a glance forward, every kiss begins and ends with darting eyes above a smile. Sometimes people smile -- women with strollers whose babies reach out and gurgle, old couples who nod slowly in silent recognition and acceptance.

Sometimes it's the long, long stare that goes right through my body…..

Oh, the stare.  Yes, we've all felt the stare:  the disdain, sometimes disgust, as they rake you with their eyes. They don't look away.  They want you to be uncomfortable, to pierce you through.   The writer goes on to describe an encounter in a restaurant, where a woman yanks her daughter to another table lest she (the daughter) be contaminated by the proximity of lesbians. You've got to be taught, you see, to hate the gays. The author goes on to lament,

When I hold my wife's hand I only want to feel her skin in my palm and our rings clink together. I only want to feel safe. 

But we are not safe.  All of us know that feeling--the constant awareness of where we are.  Is it safe to touch our fingertips?  To hold hands?  To exchange a glance?  If we get the stare--will violence follow?

And it's not just the threats of physical violence. There is a mental effect too, of having this constantly in the news, of enduring the lies, the bile, and the hatred of those opposed to equality. I've been worn down by this, by the degrading feeling of being talked about with such language. And a recent study suggests that I'm not alone in feeling this:

As the country awaits two important Supreme Court decisions involving state laws on same-sex marriage, a small but consistent body of research suggests that laws that ban gay marriage — or approve it — can affect the mental health of gay, lesbian and bisexual Americans. When several states passed laws to prohibit same-sex marriage, for example, the mental health of gay residents seemed to suffer, while stress-related disorders dropped in at least one state after gay marriage was legalized….

"They reported multiple stressors during that period," Hatzenbuehler [, the lead investigator,] says. "They reported seeing negative media portrayals, anti-gay graffiti. They talked about experiencing a loss of safety and really feeling like these amendments and these policies were really treating them as second-class citizens." ...

Hatzenbuehler says his larger point is really that policymakers, judicial leaders and ordinary citizens need to remember that social policies are also health policies.

What the equality opponents constantly ignore is that they are not talking about anonymous "they". They are talking about me, my family, my loved ones. They are talking about someone's brother, father, friend, or co-worker. As they tell lies about the gays and our relationships, as they beat (and shoot) our brothers, they are attacking all of us.

And here we sit, waiting for the Supreme Court to dissect us again with their pointed legal niceties, for them to decide if we are we, the people, full American citizens with equal rights--or whether once again we will be pushed aside as something other than fully human.

And it is taking a toll.

Roman Catholic Bishops call upcoming Prop8 decision a "Roe v Wade" moment

One grows tired of the US Conference of Catholic Bishops, who have their cottas in a twist over the impending SCOTUS decision on Prop8.  To refresh, the Court has been asked to determine whether removing the right to marry from lesbian and gay couples in CA is constitutional.

The USCCB has published an insert for Church bulletins claiming that overturning Prop8 would be the same as Roe v. Wade.  Amongst their complaints,

Every child has a basic, natural right to come from and be raised in the loving marital union of his or her own father and mother.

Now, this is the root of their objection and I would like someone to explain it for me, because it is a complete non sequitor.

How does recognizing marriage between gay couples have any effect on the "right" of children to be raised by a mum and a dad?

1) California has already given LGBT couples complete adoption and parenting rights, regardless of marriage.

2)  It is estimated that lesbian and gay couples in CA are raising over 37,000 children, either their own or adopted.

3) They will continue to raise their children regardless of whether marriage is legal.

4) Ergo, the only effect of denying marriage it to prevent those children, who exist now, at this very minute, from having the protections of married parents.

A song from Darren Criss (video Sunday)

From the GLAAD media awards

Update: will they decide not to decide?

Veteran SCOTUS watcher and SCOTUSblog writer Tom Goldstein think they will decided not to decide:

The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.... 

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.
But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now...So his suggestion was that the case should be dismissed. 

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. ... 

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision. 

The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one. The Court would stay its hand for some time for society to develop its views further. But combined with a potentially significant ruling in the DOMA case being argued tomorrow, the Term will likely nonetheless end up as very significant to gay rights.

Arguments TODAY in front of Supreme Court

Oral arguments on both the Prop8 and DOMA cases will be held today in the Supreme Court. There will also be demonstrations pro and anti. Follow all the action on Scotusblog.

Wear Red on Tuesday!

In advance of Tuesday's SCOTUS arguments on marriage equality:

1.  Wear red in support of equality!
2.  Participate in peaceful pro-equality demonstrations, in Washington DC and beyond.

It's time!

History is Watching (video Sunday)

A call out to SCOTUS ahead of the arguments on Tuesday.