5-4 for equality. We win!

From the Opinion:

No union is more profound than marriage, for it embod- ies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people be- come something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be con- demned to live in loneliness, excluded from one of civiliza- tion’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.


It is so ordered.

Waiting....

Will tomorrow be the day?  The 26th has an auspicious history, and the Court has already announced that it will be releasing opinion(s) on Friday (usually only Mondays and Thursdays)

It was on June 26, 2003 that a divided Court said in Lawrence v. Texas that a Texas law making it a crime for two persons of the same sex to engage in intimate sexual conduct was unconstitutional.

And on June 26, 2013, a divided Court in United States v. Windsor said that the Defense of Marriage Act (or DOMA) was unconstitutional as a “deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”

The cognitive dissonance of the "Fierce Advocate"

Kerry Eldveld continues to be one of the best reporters on GLBT issues.

“The president does oppose same-sex marriage but he supports equality for gay and lesbian couples in benefits and other issues,” David Axelrod assured Savannah Guthrie and Chuck Todd on MSNBC the morning after Proposition 8 was overturned. “He supports civil unions and that's been his position throughout, so nothing has changed.”
....

And for the Obama administration, the inconsistencies abound and only stand to grow with time. Let’s remember that Axelrod said the president “opposes” marriage equality, which is actually one step further than just reminding people that he supports civil unions.

Here’s a sampling of their dilemma: Explain how the President denounces Proposition 8 but doesn’t favor the marriages that would be allowed if it were overturned; why he believes DOMA should be repealed and supports full federal benefits for same-sex couples but he doesn't support the marriages that will afford that type of federal recognition.

And then there’s the idea that the president continues to “promote equality for LGBT Americans” even as he opposes same-sex marriage and supports a separate-but-unequal alternative.

Can they appeal?

There is much discussion in the blogsphere that technically, the defendants of the Prop8 case can't appeal the decision that went against them. This is because the Prop 8 case is addressing a state legal issue, and the state refuses to defend it. Both the Governor and Attorney General agree with the Judge's decision. The ones who DID defend the case are called "Defendant/intervenors" because they had to intervene, otherwise there would have been no defense.

The argument has been made that they lack standing, that is, aren't entitled to an appeal, because they aren't representing the state, and under some forms of appeal, private parties aren't allowed to stand in for the state.

Chris Geidner, an attorney who follows the Court, writes,

Although the argument was not fully laid out in the filing on Friday, it looks quite weak to me on the legal merits. All of the cases cited by plaintiffs appear from my review to relate only to instances where permissive intervention was granted and not intervention of right, as the proponents have here. Additionally, the cases cited appear to involve situations in which the state whose law or initiative was at issue did itself defend the law and, at some point in the appellate process, decided against appealing a lower decision. Here, of course, the intervening defendants were the only individual or entity defending the amendment even at trial.

If there were no appeal, Judge Walker's ruling would stand--but only with respect to California.

And of course, the bad guys would go apoplectic about "activist judges".

And if the state government were to change...then would the state be able to mount an appeal after the fact? Whitman is doing depressingly well against Brown. Is there a statute of limitations on appeal?

As Geidner concludes,

The case laid out at trial by the legal team led by Ted Olson and David Boies was impeccable. The argument -- legally, publicly and morally -- was nearly flawless. For all of the reasons described above, however, I see fighting the decision of the intervening defendants to appeal as a potential -- and unnecessary -- misstep.

I would keep the stay, and let the appeal go forward. That's me. you lawyer types, your thoughts?

The Will of the People

Brian Devine, at Prop8trialtracker

In 1803, the Supreme Court decided Marbury v. Madison. This case articulated the Judiciary’s power of “judicial review,” the power to decide the constitutionality of the actions of the other two branches of government (a law passed by the Legislative branch or an action by the Executive branch.) Ever since then, every citizen’s rights have been protected by the Court’s power of judicial review. The reason judicial review exists is to protect the rights of unpopular minorities against what Alexis de Tocqueville described as the “tyranny of the majority.” In our system of government, the majority does not get to take away rights that are protected by the Constitution from a minority group, no matter how unpopular that group is.

Using the power of judicial review, our Courts have decided several controversial issues and have forced the majority to accept ideas with which it vehemently disagrees. Ideas like school integration. In Brown v. Board of Education, the Supreme Court ruled that laws that created segregated schools violated the Equal Protection rights of racial minorities. Like Proposition 8, those laws were passed with a majority of people supporting them. And like Proposition 8, those laws were unconstitutional because they violated the rights of the minority.

Another idea popular among the majority was prohibiting inter-racial marriage. In the 1950′s and 1960s, most people believed that non-white people should be prohibited from marrying white people. Several states (including California) passed laws making interracial marriages illegal. These laws were very popular and passed with a majority of the people’s representatives. They were based on many of the same arguments on which Proposition 8 is based (fear of the slippery slope: absurd arguments like “if black people can marry white people, how long before people can marry dogs?”) But the laws were unconstitutional because they violated the rights of the minority. And in Loving v. Virginia, the Supreme Court declared unconstitutional all laws that prohibited inter-racial marriage.

Our history is rich with cases where the Courts have overturned the will of the majority and protected the rights of the minority. In Debra Saunders’ ideal world, however, these cases would not exist. In Debra Saunders’ world, Brown v. Board of Education would have been decided the other way, leaving the dreadful Plessy v. Ferguson decision to be the law of the land and permitting racial segregation. In Debra Saunders’ world, Loving v. Virginia would have been decided the other way, and states would be free to prohibit inter-racial marriages.

BREAKING: Prop8 decision to be released Weds

From Prop8trialtracker, the Prop8 decision will be released tomorrow, Weds Aug 4.

I will update here. Also there will be responses in the community; for sites near you look at www.prop8decision.com.

Remember: regardless of the decision, it will be appealed. This is one stage in the journey, but it is a critical one.

UpdateChris Geidner has an excellent FAQ discussing the legal issues here. As I understand it, the Big Questions are as follows:

1. Equal protection argument. Are gays and lesbians a minority that qualifies as a "suspect class"?

• If so, then any law disadvantaging us must substantially serve an important government interest. If not, then any law must only meet a "rational basis" test: a much lower standard, but still one that Prop8 fails to meet.

2. Due process argument. Is marriage a fundamental right?

• The bad guys argue that gays are "redefining" marriage which must be man-woman. The good guys argue that (as Ted Olson argued) "it isn't changing the institution of marriage. It is correcting a restriction based upon sex and sexual orientation."

San Diego Protests 5/26/09 (video)

This is a great video, very moving.

Meet in the Middle

On Saturday May 30,take a road trip to Fresno for Meet in the Middle: take the discussion to the heartland where the battle must be fought. Check the website for facebook and twitter connections, carpools, etc. THere is an explicit request for people of faith. California Faith for Equality (CAFFE) is sponsoring a "Faith Tent" at the Rally to show the media that many faithful people support marriage equality.

More good news: EQCA called me last night--not for money, but to sign me up for phone banking and canvassing. (I didn't ahve my calendar handy but we will definitely be part of this.)




Update: the long hard slog to repealing 8 begins on a march from Selma to Fresno.
Photo LA Times

What's next? A call to action.

I set up this blog because I suspected (as many did) the outcome we just saw: Prop8 upheld, and the 18,000 marriages "grandfathered in". I want to use this blog as a way to bring the 18,000 together, because we are the most important ambassadors for gay marriage in the state. We need to get it on the ballot in 2010, and then we need to win, against an onslaught of hate from conservative churches and out of state interests.

Both Equality California and the grassroots Courage Campaign are getting "boots on the ground" around the state. EQCA has hired new organizers and is setting up new field offices in places where the vote against us was strongest. The Courage Campaign has been running "Camp Courage" to train local activists. I really hope that these two groups and others are coordinating with each other.

We know what to expect this time. We will build better bridges to all the communities in California. Our religious allies will be more vocal. We will fight back against the hate.

But we, the 18,000 have to lead the way. We have to meet people, to show them that our marriages are no different than anyone else's. We have to be the witness for change as Harvey Milk called us to be.

Wear the button. Put on the bumper sticker. Start the conversation. Be the change. And tell your story!

From the dissent

Yay, Justice Moreno, who had been suggested as a SCOTUS candidate. I suspect his chances for that are scuppered by this dissenting opinion:

Under the majority’s reasoning, California’s voters could permissibly amend the state Constitution to limit Catholics’ right to freely exercise their religious beliefs (Cal. Const., art. I, § 4), condition African-Americans’ right to vote on their ownership of real property (id., § 22), or strip women of the right to enter into or pursue a business or profession (id., § 8). .....

Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution. This could not have been the intent of those who devised and enacted the initiative process.

In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.

Wherever you are, join the Day of Decision rallies throughout CA and across the country.

The Decision, 2

(UPdate) The commentators are starting to speak up. It may have a few peeks of silver. For analysis, go to LawDork, or to Word in Edgewise, or to this Dailykos diary which argues that all Prop8 supporters got was the name, not the substance.

From the opinion:

The principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.

There were three questions argued before the court.
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

It is not our role to pass judgment on the wisdom or relative merit of the current provisions of the California Constitution governing the means by which our state Constitution may be altered. (See Wright v. Jordan (1923) 192 Cal. 704, 711-712.) In the absence of an explicit subject-matter limitation on the use of the initiative to propose and adopt constitutional amendments, and in light of the history of the relevant California constitutional provisions regarding the amendment/revision distinction and the numerous California precedents interpreting and applying that distinction, we conclude the existing provisions of the California Constitution governing amendment and revision cannot properly be interpreted in the manner advocated by petitioners.

Accordingly, we hold that Proposition 8 constitutes a constitutional amendment rather than a constitutional revision.

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

Because the California Constitution explicitly recognizes the right of the people to amend their state Constitution through the initiative process, the people, in exercising that authority, have not in any way impermissibly usurped a power allocated by the Constitution exclusively to the judiciary or some other entity or branch of government.

(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

Indeed, the absence of a very clear and unambiguous statement that the measure would have the effect of invalidating the estimated 18,000 marriages of same-sex couples that already had been lawfully entered into is particularly telling in this instance, because if this asserted effect of the measure “had been brought to the attention of the electorate, it might well have detracted from the popularity of the measure.” (Evangelatos, supra, 44 Cal.3d at p. 1219.)

Id. at 132-33. The Court concludes:

Under these circumstances, we conclude that interpreting Proposition 8 to apply retroactively would create a serious conflict between the new constitutional provision and the protections afforded by the state due process clause. In the absence of a clear and unambiguous statement that the new provision is to have such an effect, the general legal guideline that requires courts to interpret potentially conflicting constitutional provisions in a manner that harmonizes the provisions, to the extent possible, further supports the conclusion that Proposition 8 properly must be interpreted to apply only prospectively.

Accordingly, applying these well-established principles of interpretation relating to the question of retroactivity, we conclude that Proposition 8 cannot be interpreted to apply retroactively so as to invalidate the marriages of same-sex couples that occurred prior to the adoption of Proposition 8. Those marriages remain valid in all respects.

The Day of Decision: Join the rallies in your city. See the list here. Show your pride, show your love. Keep it peaceful! We have to win hearts and minds, not simply show our feelings. The eyes of the world are upon us.

Day of Decision is May 26th

Okay, folks, here we go. The Day of Decision is Tuesday, May 26th. The court will release the opinion at 10.00 am. There will be demonstrations all around the state; protests, if as expected, it goes against us, celebrations, if we are unexpectedly victorious. For a list of cities, go here (includes cities outside California!). Show your pride, show your love. Wear white if you can. And above all, keep it peaceful! Don't give them any excuses to point at us.

And remember, on Saturday, May 30, road trip to Fresno for Meet in the Middle: take the discussion to the heartland where the battle must be fought.

I will continue to post here this weekend (I have a couple of important posts that should get us ready) and then will repost the protest plans for my handful of readers.

Possible outcomes:

• Prop 8 upheld, and 18,000 couples forcibly divorced possible
• Prop 8 upheld, and 18,000 couples "Grandfathered" and remaining legal pundits say, most likely
• Prop 8 overturned, and the 18,000 are the vanguard of the movement. wouldn't that be something!
• Prop 8 upheld, but all marriages (straight and gay) converted to civil unions, would serve them right!

Answer, NO.

Update; no decision this week. Probably wise as tomorrow is the anniversary of the White Night Riots that erupted after the verdict against Dan White. The 22nd is Harvey Milk's Birthday. That would not have been an auspicious day for this. At least one blogger reports that someone figured this out and scuppered the announcement at the last minute because of the date. Another says that the someone was SF Mayor Gavin Newsom, though that's been discounted.

More discussion at my DailyKos diary, since no one comments over here!

Keep an eye out Friday to see if they will announce for Tuesday next week.

Is the decision coming this week?

Rumor reported by AmericaBlog that the Prop8 decision is coming Thursday. The San Francisco PD is dropping off crowd control barriers in the Castro.

Keep an eye the California Supreme Court website where they will post an announcement on Wednesday to tell us what decisions are coming. Full opinions are released on Monday and Thursday mornings at 10am. (Except next week, it would be Tuesday because of the holiday).

Remember, you should try to participate in the Day of Decision demonstrations, and to meet in the middle in Fresno on the Saturday following the decision. More about the court case on this previous post.

If you're in LA, go here for the Day of Decision plans in the City of Angels. San Diego here, and San Francisco here. Other California cities with demonstrations (and there are a lot of them) are listed here.

Preparing for the California Decision

By law, the Supreme Court of California has 90 days to release its decision on the Proposition 8 case which it heard in March. That date is fast approaching, in early June. However, they can release the decision at any time before then. They announce upcoming decisions the day before, at the Court website. Opinions are released on M and Th at 10am, so keep looking for an announcement on the night before.

There are two questions before the court.

First, does the vote of a majority overrule the rights of a minority on a "fundamental right"? That is, was Prop8 legal on the ballot, and even eligible for popular vote? Is taking away a fundamental right that the court has identified, a revision of the Constitution, or a mere amendment? Ken Starr admitted during arguments that the Pro-H8 view was that any minority right was at the whim of the voters. He actually said no rights are inalienable. This isn't just about marriage equality. This means that the rights of religious groups to practise their faith, or of ethnic groups to vote and fully participate, are, according to Ken Starr, completely reversible--an astonishing idea!

It's useful to remember that if inter-racial marriage, allowed by the CA courts in 1948, and by the US Supreme Court in 1967, had been put to the voters, it would not have become legal until around 1994. It wasn't until then that a majority of Americans felt it was "okay" for blacks and whites to marry--and it is arguable that if it hadn't been legal already, "approval" would have taken even longer. Importantly, the Constitution exists in part to protect the minority from the majority. We don't put the rights of the minority to mob vote. Or do we?

The second question is, are the same-sex marriages that were legally performed between May and November of 2008 still legal? Pro -Prop8 advocate Starr says those marriages (which include mine) ceased to exist legally on 5 Nov 2008, making this a retroactive decision. The court seemed less comfortable with the argument that the proposition could "reach back" in this way. Of course, leaving these marriages legal would create an awkward legal situation where there are two classes of gay people in the state: those who married, and those who can't.

The general consensus of pundits following the arguments in March was the the court was against us on the first issue, and possibly for us on the second issue.

And look what's happened since then. Iowa. Vermont. New Hampshire. Maine. Washington DC. Joining Massachusetts and Connecticut, with New Jersey coming along. And unexpected voices in favor of gay rights. And a recent poll suggesting Americans actually favor same-sex marriage rights by a narrow margin .

Will the California court temper its decision with this groundswell? Some think so, though this seems too hopeful; most reviewers doubt it. Still, we cannot deny that there has been a major, and rapid change in the climate. It's also useful to remember that the California legislature passed a marriage equality bill TWICE before the initial decision, which was vetoed by the governor, on the grounds that the court should rule first. The court subsequently ruled, in May 2008, that all citizens have a fundamental right to marry the person of their choice. Very similar to the words used in the landmark Perez v. Sharp decision of 1947, that overturned California's anti-miscegenation laws. It would really be unprecedented for fundamental rights that have been approved by both court AND legislature, to be eliminated by a mob vote, but of course that doesn't mean it won't happen.

So, we have work to do. We must assume that there will be a new ballot initiaitve in 2010 regardless. You can support that, and learn more here, at Equality-CA and here, at the Courage Campaign . There are more advocacy sites in the sidebar.

But HUGELY important is, We have to respond to the decision, whether pro or con. If you are in California, you can participate here. Many CA cities will have an event, whether to celebrate or to protest. This is critical. If our community doesn't care, who will? Remember the power of the November march when we all came together.

Additionaly, activists plan to meet in the middle the weekend after the decision, in Fresno. The idea being that it is the "heartland" of California that passed Prop8, and therefore we have to take the argument to those voters. If you can possibly get to Fresno that Saturday, please do. Check the Day of Decision or Join the Impact websites for information, including Twitter and Facebook links. I know that Amtrak serves Fresno on the San Joaquin line.

Amidst all this, I hate the fact that I still have this insistent little bird of hope. It's tiny, just a little thing. The realist in me expects the worst, and the problem with having a little bird of hope is that it is so agonizing when it is killed, yet again. It is so much worse to feel its death than not to have heard it to begin with.

But at least the agony of waiting is almost over. Work and life have suffered enormously from living in this limbo, which has been corrosive in so many ways. Let's get it over with, one way or another, let's know the worst, and then move on to the next step.

Original version posted at Friends of Jake