Blogcabin California

July 2, 2008

MET-NEWS:07.02.08: Initiative Process Is Being Abused

Posted by Kevin Norte at 11:12 am .
Filed under: Gay Rights, California Politics, Marriage

magic8ball.jpgMetropolitan News-Enterprise

Wednesday, July 2, 2008

Page 7

IN MY OPINION:

Initiative Process Is Being Abused

BY JACK ROSENFELD

The pending petition to the California Supreme Court (Bennett v. Bowen (No. S164520)), seeking to remove the marriage initiative from the November ballot, is about much more than the right to marry. This case is also about the use and abuse of the voter initiative process. This case gives the Supreme Court the opportunity to reiterate that “voters can propose amendments to the Constitution that will be placed on the ballot if the requisite number of signatures are obtained, but they may not propose constitutional revisions.” (Californians For An Open Primary v. McPherson (2006) 38 Cal.4th 735, 788, conc. opn. of Moreno, J.)

For decades, the voter initiative process in California has been exploited to inflame the electorate. This problem will persist until the Supreme Court clarifies the scope of the initiative process.

In 1978, California voters were presented with the Briggs Initiative (Proposition 6), a patently unconstitutional measure which sought to prevent homosexuals from working in California public schools. At the time, the Briggs Initiative was compared to the 1930’s Nuremberg era laws, which banned Jews from working for the German state or from being employed as lawyers, doctors or journalists. Although it was defeated, the Briggs Initiative should not have been placed on the ballot and that political battle should not have been fought.

In 1986, the voters were presented with Proposition 64, backed by Lyndon LaRouche. That failed initiative would have quarantined Californians who are HIV-positive. That measure targeted a vulnerable minority during a time of hysteria about AIDS and would have deprived hundreds of thousands of people of their liberty, even though public health officials viewed quarantine as unnecessary.

In 1991, there was a notable exception. The City of Riverside refused to place an anti-gay citizens’ initiative on the ballot. The proponents sued. The trial court upheld the City’s decision, ruling the proposed initiative was constitutionally defective and also represented an impermissible effort to amend the City’s charter by ordinance. The Fourth District affirmed, observing “All that is lacking is a sack of stones for throwing.” (Citizens for Responsible Behavior v. Superior Court (1991) 1 Cal.App.4th 1013, 1031.) 

In 1994, we were presented with Proposition 187, a ballot initiative which, among other things, would have denied public education to undocumented children. That measure was patently unconstitutional, in that the U.S. Supreme Court previously had held that denial of free public education to undocumented children amounts to a violation of equal protection under the 14th Amendment. (Plyler v. Doe (1982) 457 U.S. 202.)

More recently, we were confronted with Proposition 22 in 2000, which unlawfully denied same-sex couples the fundamental right to marry. Next up is the proposed marriage amendment on the November 2008 ballot, seeking to abrogate that same fundamental right.

In our constitutional democracy, equal protection and fundamental rights of a protected minority, including the right to marry, cannot be curtailed by a mere ballot initiative. Otherwise, the people could seek to adopt initiatives barring Jehovah’s Witnesses from doing door-to-door proselytizing, or barring Muslim girls from wearing headscarves in public schools, or barring placement of foster children with gays and lesbians, or requiring Christian prayer in public schools. The possibilities for mischief are endless. Even if ultimately unsuccessful, such initiatives are deeply divisive and costly to oppose, a point noted in Citizens for Responsible Behavior (1 Cal.App.4th at p. 1023).

If allowed to proceed, the marriage initiative would destabilize California’s constitutional structure by allowing a popular vote to abrogate the now established fundamental right of same-sex couples to marry. Such a profound restriction on a fundamental right demands, at a minimum, the scrutiny and deliberation of the constitutional revision process. This voter initiative, seeking to deny same-sex couples the fundamental right to marry, amounts to electoral “ultra vires.”

(Jack Rosenfeld is an attorney in Los Angeles. The views expressed are solely his own.)

Copyright 2008, Metropolitan News Company

UPDATE: 07.02.08: BENNETT v. BOWEN (HOLLINGSWORTH) S165420

Posted by Kevin Norte at 10:51 am .
Filed under: Gay Rights, California Politics, Marriage

magic8ball.jpgFollow-up:

For educational purposes only:

Pugna’s opposition for respondent Hollingsworth’ et.al.’s reliance on People v. Frierson  is insufficient to overcome the revision argument advanced by Petitioners Bennet et. al. 

 The central case in the argument raised by Respondent appears to be People v. Frierson (1979) 25 Cal.3d 142, wherein the Supreme Court found that an initiative restoring the death penalty was not a revision.  As the Respondent notes on page 19 of their brief: “This Court’s decision in People v. Frierson…is perhaps most instructive.” The Petitioner briefly addresses this case in footnote 1 of its Petition.

First, the revision argument raised by Defendant in People v. Frierson, supra, was very narrow; to wit:
 
“As interpreted by defendant, section 27 contemplates “removal of judicial review” of the death penalty from a carefully built state constitutional structure, thereby resulting in “a significant change in a principle underlying our system of democratic government and can only be accomplished by constitutional revision.”
The Court rejected this argument by asserting that the Court still retained judicial review.
Second, the Supreme Court in People v. Frierson, supra, emphasized that the initiative did not seek to restore statutes held invalid by People v. Anderson (1972) 6 Cal.3d 628. As the Court noted:
Nowhere in the comments of the legislative counsel or the arguments to the voters was there any suggestion that section 27 would validate only those particular statutes previously invalidated by us in Anderson. As the legislative counsel pointed out, the United States Supreme Court (in Furman) had also struck down a statute of the “uncontrolled discretion” type, but had indicated that not every death penalty provision would be invalid. The clear implication conveyed to voters was that section 27 would allow restoration of the death penalty in accordance with the standards announced by the high court. Indeed, it is noteworthy that section 27 by its terms purports to restore the death penalty statutes in effect on February 17, 1972.
Thus, the initiative passed by the voters in 1972 was not an attempt to revive any statute that the CA Supreme Court found unconstitutional. Rather, the 1972 initiative was attempt to meet the federal legal requirements adopted by the US Supreme Court in Furman v. Georgia (1972) 408 US 238. As further noted by 3 Witkin, Cal. Crim. Law 3d (2000) Punishment, § 410:
Nevertheless, the 1972 constitutional amendment remained viable. Its purpose was to restore the death penalty in California to the extent possible under the federal Constitution; “properly construed, [it] validates the death penalty as a permissible type of punishment under the California Constitution.” (People v. Frierson, supra, 25 C.3d 186.)

July 1, 2008

Does He or Doesn’t He? A Puzzled Blogosphere Awaits Word

Posted by Christopher Gilbertson at 9:06 pm .
Filed under: Miscellany

Obama on Same-Sex Marriage   [Ramesh Ponnuru]

He says he opposes it. But he also thinks that a constitutional amendment in California to block it is “divisive and discriminatory.” I think the only way to square these positions would be for Obama to say that he opposes same-sex marriage as a religious or moral matter, but supports it as public policy. He is, that is, “personally opposed.” But I don’t know whether Obama actually takes that position, or is simply muddled. (The other possibility, of course, is that I am wrong and there is some other way to make these views consistent.)

 

One possibility is that Obama opposes same-sex marriage as a matter of policy, but also thinks it would be unwise for Californians to amend their state constitution in order to prohibit it retroactively and nullify marriages that have already taken place (which could easily be construed as “divisive and discriminatory”). This isn’t totally illogical: There are lots of people who dislike the rights conferred by, say, the Second or Fourth Amendments, but think as a matter of prudence it’s a bad idea to amend constitutions frequently unless there’s an exceptionally compelling reason to do so. Granted, it doesn’t seem very likely this is what Obama believes (and this line of argument carries less weight in the context of the California constitution, which is amended all the time and is already a mess anyway), but his statements on the issue, while in tension, aren’t necessarily irreoncilable.

–Josh Patashnik 

 

[Dale Carpenter, July 1, 2008 at 6:34pm] Trackbacks
Puzzling Obama on SSM:

Today we learned that Barack Obama opposes the proposed amendment to the California constitution defining marriage as the union of a man and a woman. In a letter to a gay civil rights group in San Francisco, Obama said he rejects “the divisive and discriminatory efforts to amend the California Constitution” and similar efforts in other states.

At the same time, Obama has repeatedly said that while he supports civil unions for gay couples he believes marriage is between a man and a woman. At a Democratic debate last August sponsored by the gay-themed cable station LOGO, he had this exchange with Human Rights Campaign Executive Director Joe Solmonese:

MR. SOLMONESE: So to follow up on your point about the state issue, if you were back in the Illinois legislature where you served and the issue of civil marriage came before you, how would you have voted on that?

SEN. OBAMA: Well, I — you know, my view is that we should try to disentangle what has historically been the issue of the word “marriage,” which has religious connotations to some people, from the civil rights that are given to couples, in terms of hospital visitation, in terms of whether or not they can transfer property or any of the other — Social Security benefits and so forth. So it depends on how the bill would’ve come up.

I would’ve supported and would continue to support a civil union that provides all the benefits that are available for a legally sanctioned marriage.

Though the answer was a bit muddled, and seems calculated to ease the blow of his opposition to gay marriage in front of a gay audience, I read this to mean that Obama would oppose a bill in a state legislature to permit same-sex couples to marry but would support a bill to let these same couples enter civil unions giving them equivalent rights under state and federal law. This has become the dominant view of the Democratic Party. (If in fact he personally opposes gay marriage but supports it as a matter of public policy, his campaign hasn’t said so.)

Assuming that Obama’s opposition to gay marriage is not simply “personal,” but is also a matter of public policy, I find Obama’s current position perplexing. He opposes a referendum that would simply enshrine his purported public-policy view that marriage is between a man and a woman because, he says, it is “discriminatory.”

But how is the proposed amendment any more “discriminatory” than his own position? His position is that marriage is between a man and woman; the proposed amendment says that marriage is “between a man and a woman.” (Full text: “Only marriage between a man and a woman is valid or recognized in California.”) The proposed California amendment is narrower than the other proposed state constitutional amendments, many of which have explicitly bitten off much more than gay marriage.

Is there any way to reconcile opposition to gay marriage with opposition to the California amendment? I can think of three ways to reconcile these views, none of which is cited by the Obama campaign.

First, I suppose one could oppose writing the definition into the state constitution as opposed to state statutes. This would leave the state legislature and governor with the flexibility and the power to make the call at a later time. But the problem with that is that the state supreme court effectively wrote the new definition into the state constitution, removing this very power from the state legislature and the governor. If you oppose gay marriage on policy grounds, there is now no way to implement your view except to constitutionalize it by amendment. The state supreme court has left you no choice. And in California, because it’s so easy to amend the state constitution, you’re free to vote for a repeal at a later date if you change your mind on this issue. And you don’t have to worry in 2008 that you are helping to set up a supermajority barrier to the possibility that you will change your position in the future.

Second, since gay marriages are a fait accompli for the next few months, even if you oppose them you might not want to reverse the interim marriages (which is a possible effect of passing the amendment) or, more abstractly, “take away rights.” These would be incredibly generous reasons for a real opponent of gay marriage to oppose the California amendment since the number of interim marriages will be small in absolute terms, the marriages exist only by mandate of four judges, they are entered with full knowledge and notice that they may be nullified in a short time, and the cost of losing the referendum will be many more such marriages into the indefinite future. But if Obama is such an anti-SSM altruist, he does not give this as a reason for opposing the amendment.

Third, a gay-marriage opponent who supports civil unions (like Obama) could vote against the California amendment on the ground that it might also be interpreted to eliminate the state’s domestic partnership system. This might be an unacceptably high cost if you oppose gay marriage, but don’t oppose it very strongly, and think the costs of ending the domestic partnership system would be high. I think it unlikely the amendment will be interpreted so broadly by the California courts if it passes, but the risk is above zero. However, once again, Obama does not offer this as a reason to oppose the amendment.

So what’s really going on? I think there are two things happening. First, I don’t think Obama really opposes gay marriage deep down and I suspect he does see the exclusion of gay couples as a kind of discrimination. He has never been able to explain his reasons for opposing gay marriage — which is very revealing for a man who’s otherwise unusually thoughtful. He just says, basically, I oppose gay marriage “because I say so.” So calling the amendment discriminatory and divisive may be candor squeaking through. Second, and probably more importantly, this is an instance where politics necessitates cognitive dissonance. Gays and those who support gay equality are a critical constituency in the Democratic Party. Obama can’t keep the gay-friendly base happy and support the amendment, which is rightly seen by them as involving huge stakes for the gay-marriage movement. But at the same time he has calculated that he can’t come out for gay marriage as a matter of public policy because that might mean losing the election.

Don’t get me wrong, I strongly oppose the California amendment and intend to contribute to its defeat. And on one level, I am very gratified by Obama’s opposition. It might actually help sway some of his socially conservative black and Latino supporters, who will vote in large numbers in California in November. But then, I support gay marriage. If I opposed it, I’d probably be either mystified or angered.

Obama’s explanation for why he opposes gay marriage and opposes the proposed California amendment banning it can’t be squared as a matter of logic. It’s a matter of politics, which says something about how much things have changed in a short time. We’ve gone from the Democratic presidential nominee in 2004 opposing gay marriage and supporting state constitutional amendments to ban it (as Kerry did, even where gay marriage existed, in Massachusetts); to a Democratic nominee who says he opposes gay marriage, but who’s uncharacteristically at a loss to explain himself, and who opposes the only way to prevent it from becoming a reality in a state with 40 million people; to, I predict, a nominee in 2012 or 2016 who will say he or she personally favors gay marriage but says the president has no role in the decision because this is an issue that should be left to the states.

The Last Desparate Days of Gary Bauer

Posted by Kevin Norte at 11:06 am .
Filed under: Miscellany

THE FOLLOWING POST IS BY CHRISTOPHER GILBERTSON: 

Conventional wisdom holds that the California Supreme Court’s recent decision to strike down the Golden State’s Defense of Marriage Act was a triumph for the left, representing a giant leap toward its ultimate goal of establishing same-sex marriage nationwide.

 

Actually, it was a triumph for all fair-minded Americans, which be definition, would exclude Gary Bauer. But for all the left’s euphoria, it’s the right that should feel encouraged. Because, considering past precedent and current trends, the ruling may backfire and end up offering substantial electoral advantages to conservative candidates.We love it when Gary self-medicates.

First, some background.

In 2003, two courts issued high-profile decisions that would loom large on Election Day 2004. The United States Supreme Court’s decision striking down a Texas statute outlawing sodomy and the Massachusetts Supreme Court’s ruling legalizing same-sex marriage catapulted same-sex unions to the forefront of the election campaign.

While the homosexual rights movement hailed these two court victories, traditional marriage activists were spurred to pursue their only available recourse: state marriage protection amendments.
Massive state and national get-out-the-vote campaigns educated voters about the rulings’ implications and, thus, the need to protect marriage at the state constitutional level. These efforts proved fruitful, as all 11 state marriage amendments passed, with an average approval vote of 70 percent.

The marriage amendments had a buoying effect for President Bush and other conservative candidates, pushing to the polls many voters who otherwise might not have voted. In Ohio, for instance, a huge marriage amendment campaign registered 54,500 new voters, and thousands more Ohioans who were registered but rarely voted cast their votes for the marriage amendment. On the strength of the marriage initiative, Bush won in the battleground state, as did 13 of the 17 Republican candidates running for Congress there.  

A little-discussed academic paper titled “Did Gay Marriage Elect George W. Bush?” — presented at the 2005 State Politics and Policy Conference in East Lansing, Mich. — illuminates precisely how much of an impact the issue had. Using national and state-level survey data, a team of university professors employed logistical regression analysis and made some fascinating discoveries. For instance, the direct priming effects of the marriage amendments led to a 9 percent increase in the probability that a voter would pull the lever for Bush, even after accounting for constant partisanship, religion, and other salient issues (Iraq, economy and terrorism) and demographic factors. The increased probability of voting for Bush grew to 20 percent among voters who felt strongly about the marriage issue.

The issue had a particularly strong effect in key battleground states. The authors conclude that the marriage amendments “aided Bush in states where it was on the ballot. Other issues may have kept Bush even with [Democrat John F.] Kerry in Ohio, but gay marriage may very well have put Bush over the top in the state.”

These data help explain why many same-sex marriage proponents, from Democratic Sen. Dianne Feinstein to the Log Cabin Republicans, conceded that the issue was a net plus for the GOP in 2004.
But same-sex unions began affecting elections before 2004. In July 2000, Vermont became the first state to enact civil unions. Later that year — helped by the “take back Vermont” movement, started partly in response to the new law — Republicans captured the state House for the first time in 14 years and nearly took back control of the state Senate.

 

But will same-sex marriage matter in 2008? Most pundits doubt, in light of a continuing war and economic issues topping lists of voter concerns, that same-sex marriage will carry the same resonance for voters now that it did in 2004.

Polling, however, suggests otherwise. Only two states (Florida and California) will vote on marriage protection amendments in November. But a 2007 Quinnipiac poll found that homosexuality remains important among voters in Ohio, Florida and Pennsylvania. No candidate has won the presidency since 1960 without carrying at least two of these states. In all three, a much higher percentage of voters (34 percent to 10 percent in Ohio, 28 percent to 10 percent in Florida and 28 percent to 11 percent in Pennsylvania) said they would be “less likely,” rather than “more likely,” to vote for a candidate who received an endorsement from a gay rights group. Importantly, these margins diminished only slightly among independents in each state.

What’s more, according to a recent Gallup poll, the traditional marriage faction benefits from much greater intensity of belief. While just 2 percent of those who favor same-sex marriage define themselves as single-issue voters on marriage, one in four traditional marriage supporters say they will vote only for candidates who share their view on the issue. And a Pew poll published in June found that “55 percent of strong opponents of gay marriage say it is a very important issue, compared with 29 percent of strong supporters of gay marriage.”

The Pew poll found that 41 percent of Republicans say same-sex marriage will be “very important” to their vote this year, which is remarkable considering that 39 percent felt as strongly in 2004.

These are the voters who will be motivated by the California ruling. I asked Alliance Defense Fund senior counsel Glen Lavy, who argued against same-sex marriage in the California case, to put the ruling in context. He said the decision is “far worse” than the 2003 Massachusetts Supreme Court decision, because Massachusetts had no statutory law defining marriage at the time. In California, however, four judges rewrote a law passed only eight years earlier by a significant majority of California voters.

Since June 17, hundreds of same-sex couples have flocked to California, married and returned to their home states, the vast majority of which have laws that prohibit such marriages. But with no legal way to invalidate these weddings, chaos may ensue, creating an environment ripe for an electoral backlash on Election Day.

Former presidential candidate Gary Bauer is president of American Values and chairman of the Campaign for Working Families.

 

 

Log Cabin Republicans President Patrick Sammon Responds To Gary Bauer’s False Claims

Posted by Kevin Norte at 11:02 am .
Filed under: National Politics, Gay Rights, Marriage

THE FOLLOWING POST IS BY CHRISTOPHER GILBERTSON:

In his Ideas piece for Tuesday’s Politico, “Can gay marriage save the GOP again?” former presidential candidate Gary Bauer makes misleading and inaccurate claims.  Bauer argues that the issue of gay marriage helped catapult the GOP to electoral success in 2004 and directly led to President Bush’s reelection. But that theory, long rumored in the aftermath of the 2004 election, has been disproved.

Some analysts inaccurately credited Bush’s 2004 reelection to his use of the marriage issue to improve the turnout of his base. However, Matthew Dowd, Bush’s chief strategist in 2004, says the marriage issue was not the reason Bush won reelection. The New York Times quotes Dowd as saying, “At best, it doesn’t move voters, and at worst for Republicans, it moves them against them. Not so much on the issue, but it becomes, ‘Why are we having a discussion on this issue when we should be talking about things that matter, like the economy, or health care or the war?’”

Even so, Bauer’s argument doesn’t hold water, because 2008 is not 2004. The politics surrounding marriage are changing quickly.

In 2006, the five Republicans who used marriage most prominently as a wedge issue all lost. Sens. Rick Santorum (Pa.) and George Allen (Va.), Reps. John Hostetler (Ind.) and Anne Northup (Ky.), and Ken Blackwell (in his race for Ohio governor) tried to win with anti-gay campaign tactics. They didn’t necessarily lose because of their tactics, but these tactics didn’t prevent them from losing, as they might have a decade ago.

Support for marriage equality is growing. Pew Forum polling shows a 6 percent increase in support for marriage equality in the past four years. A recent Field poll in California showed 54 percent of respondents opposing an anti-marriage constitutional amendment that will be on the ballot in November — an initiative Republican Gov. Arnold Schwarzenegger opposes. And many who oppose marriage equality support civil unions — nationwide, combined support for allowing marriage or civil unions for gay and lesbian couples approaches 60 percent. It’s only a matter of time before the law treats all families equally.Acceptance of loving, committed gay and lesbian couples is on the rise and, consequently, the marriage debate does not have the same heat it used to. Republicans who try exploiting the issue for political gain this November will fail. And they’ll further alienate the young people who are already leaving the GOP in droves.

Unfortunately, prospects for House and Senate Republicans look bleak in November. Our party ended up in the minority because we forgot what fiscal responsibility meant, got fat with pork barrel spending and lost our compass on ethics. Republicans also spent much of 2006 debating divisive wedge issues such as a federal constitutional ban on marriage equality and the Terry Schiavo case. Making these wedge issues a prominent part of the GOP agenda made the party look out of touch with the priorities of average Americans. This disconnect with average voters cost Republicans the majority in Congress — pollsters agree Democrats won in 2006 because of independents (exit polls showed independents voting for Democrats by 57 percent to 39 percent).

Interestingly enough, the two GOP U.S. senators targeted by Democrats, who should be in the most electoral danger given their constituency — Susan Collins of Maine and Gordon Smith of Oregon, are in the best position to win reelection in 2008. Not surprisingly, both Smith and Collins have strong records in favor of fairness and freedom for gay and lesbian Americans.

So, a word to my fellow Republicans: If we choose the politics of fear and division that helped defeat our party in 2006, we will alienate the independent voters who will decide this election. We will suffer an even bigger defeat in 2008.

Patrick Sammon is president of Log Cabin Republicans, an organization working to make the GOP more inclusive on gay and lesbian issues.

 

 

June 30, 2008

UPDATE: 06.30.08: BENNETT v. BOWEN (HOLLINGSWORTH) S165420

Posted by Kevin Norte at 1:47 pm .
Filed under: Gay Rights, California Politics, Marriage

magic8ball.jpgA court filing Monday, the attorney general’s office said the state takes no position on the issue. 

In another twist, Liberty Counsel filed a motion to intervene to oppose a lawsuit that seeks to remove the discriminatory PROPOSITION 8 from the November 4, 2008 ballot.  Liberty Counsel filed in on behalf of the Campaign for California Families, Randy Thomasson, and Larry Bowler.  It is not their initiative and they were therefore not named as real parties in interest.  Seems to this legal analyst that ”Randy” and company are trying to steal the spotlight from Hollingsworth and Gail J. Knight in the never ending fundraising saga of the Gay Marriage Industrial Complex. 

As you probably know, since 2004 Liberty Counsel has been involved in Randy Thomasson’s legal cases to harm gay and lesbian families in the name of GOD in California. I have been reporting about Gail J. Knight’s homophobic effort to put the California Marriage Protection Act on the ballot in November. But for Randy to intervene, PLEASE!  It is laughable.  The intervention smacks of desperate fundraising on his behalf.  Randy’s initiative did not qualify and his pale attempt at an intervention is just his way of staying relevant when he is irrelevant. 

The Knight Initiative was circulated prior to the Supreme Courts historic ruling but the masquerading revision as an amendment was certified for the ballot on June 2, 2008 by the Secretary of State. If permitted to proceed to the ballot and if it passes, the discriminatory amendment would write discrimination into the California Constitution, raise Federal Equal Protection grounds, and attempt to nullify the 4-3 ruling of the California Supreme Court issued on May 15. But a few days ago, the National Center for Lesbian Rights, Lambda Legal, the ACLU and Equality California filed suit against California Secretary of State Debra Bowen, who certified the Amendment. Those groups are trying to enforce the Constitutional Right that says a revision (here removing fundamental rights from the Constitution) can only be placed on the ballot by 2/3rd of the legislature along with the position that the initiative is misleading. It is misleading because it plainly states that it does not change California law. Try telling to the thousands of Californians who have been married since June 16, 2008. 

If you want to read the Liberty Counsel’s fundamentally flawed position click on the highlighted term above. It is in .PDF Format. Due to time constraints, I did a quick word search of the words revision and revise to see how they rebutted the petitioner’s arguments. Believe it or not, Liberty Causes must not have read the LAMBDA Legal’s well written Petition because those determinative words, “revision” and “revise” do not appear in the latest filing. However, we cannot sit back and idly watch the Constitutional abuses.  

WE MUST LOVE HONOR CHERISH – WE MUST STOP THE 8  

5:00 PM UPDATE: ACCORDING TO THE SUPREME COURT WEBSITE, OPPOSITION FILED WAS BY THE REAL PARTIES IN INTEREST (THE INITIATIVE PROPOSNENTS, HOLLINGSWORTH/KNIGHT), ALONG WITH A MOTION TO INTERVENE BY CAMPAIGN FOR CALIFORNIA FAMILIES/RANDY THOMASSON.   

WHETHER THOMASSON CAN INTERVENE IS DOUBFUL IN THIS LEGAL ANALYST’S OPINION BECAUSE IN IN MARRIAGE CASES (2008) 43 CAL.4TH 757, 790-791, THE COURT DENIED A SIMILAR REQUEST FOR LEAVE TO INTERVENE, HOLDING STRONG IDEOLOGICAL DISAGREEMENT IS INSUFFICIENT FOR STANDING. STAY TUNEDCHECK OUT THE SUPREME COURT’S DOCKET IN BENNETT V. BOWEN (HOLLINGSWORTH) HERE.

And So The Gay Marriage Industrial Complex Goes On And On And. . .

Posted by Kevin Norte at 11:29 am .
Filed under: Gay Rights, Marriage

Update: Arizona puts gay marriage ban on ballot again

Associated Press

PHOENIX (AP) — Arizona voters will decide again in November whether to change the state’s constitution to define marriage as a union between one man and one woman.

A 16-4 vote by the state Senate on Friday night sends the gay marriage ban to the ballot. It had previously been approved by the House.

Arizona voters rejected a similar state constitutional amendment in 2006. That measure would have also stopped the state from recognizing civil unions of same-sex couples.

From The Blog of The Times

Posted by Kevin Norte at 11:00 am .
Filed under: Gay Rights, California Politics, Marriage

Los Angeles Times Blog:

magic8ball.jpg“David: You may remember me as we corresponded a few weeks ago on various issues. I just wanted to point out that what you wrote in your comment here was not correct. A constitutional amendment is only constitutional if it is adopted in accordance with the constitutions procedure for amendment. The California Constitution makes a distinction between constitutional “amendment” and constitutional “revision.” An amendment clarifies something or changes small things in the constitution. A revision changes basic constitutional doctrines or structures. Since the California Supreme Court has ruled that marriage is a fundamental right that cannot be denied to gay couples and that the equal protection clause is also implicated, outlawing same-sex marriage will now contravene the equal protection clause. Furthermore, we now know that there will be thousands of same-sex marriages performed in California while it is legal between now and November since anti-gay groups were unsuccessful in getting the Supreme Court to stay its ruling. That means that if the amendment were to pass, it would throw all of those marriages into legal limbo and it would make drastic changes to a fundamental constitutional right. It will almost certainly be considered a revision as opposed to an amendment.

The California Constitution provides that the people may “amend” the constitution by initiative. It neglects to put the word “revise” in that section. Amendments or revisions, however, can be referred to the people by the legislature. That means, since this proposal is by initiative petition and it is a revision as opposed to an amendment, it is likely unconstitutional. See McFadden v. Jordan (1948) 32 Cal.2d 330, 333: “The initiative power reserved by the people by amendment to the Constitution in 1911 (art. IV, s 1) applies only to the proposing and the adopting or rejecting of ‘laws and amendments to the Constitution’ and does not purport to extend to a constitutional revision.” Also, see Raven v. Deukmejian (1990) 52 Cal.3d 336.”

Posted by: John Keating |

June 29, 2008

Governor Schwarzenegger on MEET THE PRESS w/Tom Brokaw 06.29.08

Posted by Kevin Norte at 10:53 pm .
Filed under: Gay Rights, California Politics, Marriage

magic8ball.jpgSeen Entire Transcript From MEET THE PRESS w/ Tom Brokaw

MR. BROKAW: You have a lot of propositions on the ballot again this fall. One of them would mean a constitutional ban on gay marriages. Do you support that?

GOV. SCHWARZENEGGER: No, not at all. As a matter of fact, I think the Supreme Court made a decision there. It was apparently unconstitutional to stop anyone from getting married. It’s like 1948, the interracial marriage, when the Supreme Court of California has, you know, decided it was unconstitutional and then later on the Supreme Court of the United States followed, I think 10 or 12 years later. So I think it is, it’s good that California lead–is leading in this way. I personally believe that marriage should be between a man and a woman. But at the same time I think that my, you know, belief, I don’t want to force on anyone else, so I think we should stay with the decision of the Supreme Court and move forward. There are so many other more important issues that we have to address in California. So I think to spend any time on this initiative I think is a waste of time.

Gay Marriage Is Good for America

Posted by Terry at 7:45 pm .
Filed under: Gay Rights, California Politics, What Do You Think?, Marriage

by Jonathan Rauch 

First published in The Wall Street Journal on June 21, 2008.

By order of its state Supreme Court, California began legally marrying same-sex couples this week. The first to be wed in San Francisco were Del Martin and Phyllis Lyon, pioneering gay-rights activists who have been a couple for more than 50 years.
More ceremonies will follow, at least until November, when gay marriage will go before California’s voters. They should choose to keep it. To understand why, imagine your life without marriage. Meaning, not merely your life if you didn’t happen to get married. What I am asking you to imagine is life without even the possibility of marriage.
Re-enter your childhood, but imagine your first crush, first kiss, first date and first sexual encounter, all bereft of any hope of marriage as a destination for your feelings. Re-enter your first serious relationship, but think about it knowing that marrying the person is out of the question.
Imagine that in the law’s eyes you and your soul mate will never be more than acquaintances. And now add even more strangeness. Imagine coming of age into a whole community, a whole culture, without marriage and the bonds of mutuality and kinship that go with it.

This article is a MUST read for everyone, gay and straight alike.  Send it to everyone…
http://www.jonathanrauch.com/jrauch_articles/2008/06/gay-marriage-is-good-for-america.html
Here is the end of the article…

There are two ways to see the legal marriage of Del Martin and Phyllis Lyon. One is as the start of something radical: an experiment that jeopardizes millennia of accumulated social patrimony. The other is as the end of something radical: an experiment in which gay people were told that they could have all the sex and love they could find, but they could not even think about marriage. If I take the second view, it is on the conservative – in fact, traditional – grounds that gay souls and straight society are healthiest when sex, love and marriage all walk in step.

Marriage Report from Palm Springs by Ted Jackson

Posted by Terry at 7:31 pm .
Filed under: Gay Rights, California Politics, Log Cabin Members, What Do You Think?, Marriage

Log Cabin member, Ted Jackson, sent a report of his activities in Palm Springs…

Monday June 24, 2008
 

Dear Friends,
 

It has been and emotionally charged week here in California and I just wanted to share some thoughts with you.  Working on the Let California Ring campaign, I had the honor and pleasure of working with folks from other LGBT organizations and elected officials out in the Inland Empire as we crossed the threshold of inclusion.  Together we continued to educate folks about the freedom to marry over the past week at events and through a ton of earned media.
 

On Tuesday June 17th I was at the Riverside County Clerk’s office, helping couples through the marriage license process - witnessing joyful history being made.  Everything ran professionally and the couples were treated with the utmost respect by the clerk’s staff.  I want to give a special thank you to Steve Pougnet (Palm Springs Mayor), Ginny Foat (Palm Springs Mayor Pro-Tem), Rick Hutcheson (Palm Springs City Council), Jay Thompson (Palm Springs City Clerk), Larry Ward (Riverside County Clerk) and Roy Wilson (Riverside County Supervisor)…a bipartisan group of elected officials who worked together to make sure the process was dignified and transcended politics.
 

But the most rewarding part was helping many couples through the process of getting married.  On Tuesday last week I saw probably a hundred couples marry, individually, with respect and honor.  Two friends of mine who have been together 46 years made us howl with laughter when they asked the county clerk where to fill in the name of the top and the bottom on their marriage license application.  And another couple brought tears to my eyes as they were married wearing shirts with the dates of the commitment ceremony, their domestic partnership and finally June17th - their wedding…they were engaged for 40 years!
 

Many couples were just getting licenses, saving a later date in the fall when the desert temperature will cool down for a perfect garden wedding.  And many came down to show support, but are not rushing into marriage, telling us they take this new right seriously and don’t want to enter into marriage lightly.  I have gladly witnessed an air of great responsibility which makes me proud to be a part of the lgbt community.
 

One of our super PFLAG mom’s and a Let California Ring volunteer out here in the Coachella Valley, showed up on Tuesday at the clerk’s office just to demonstrate her support for the couples and help us get pledge signatures and recruit new volunteers for the freedom to marry.  She also made sure she checked in to see what the process was, in case her son in LA gets married someday…like any good mother she just can’t wait to finally plan that wedding.
 

On Saturday night I assisted in the Palm Springs marriage celebration and I ran the check in table for 36 couples being married by the mayor and city council members.  What an incredible celebration.  Each of them were married individually, and although people wanted to watch what was going on in the wedding chapel, we held a strict rule that only those invited by the couple could go inside.  Each wedding was unique, beautiful and sacred.
 

Our volunteer leader Terry Applegate, who never misses an event or opportunity to get pledge signatures and recruit new volunteers, was married to her partner Jeanne on Saturday night.  The two women were decked out in their best blue ball gowns with flowers and all…even in 115 degree heat, they were going walk down that aisle with beauty and grace!
 

People have really come together to make these weddings happen.  The wedding chapel where the 36 couples were married (a gorgeous small chapel with a beautiful garden) is run by a fundamentalist minister who is still unsure about supporting the freedom to marry for lesbian and gay couples.  Although he did not marry couples, he was touched by what he saw over the last month, a commitment to take marriage seriously, and gave us the use of his chapel for free.
 

And if I did not have to work this weekend, I would have been in Laguna to see 3 couples, dear friends from Ohio, get married.  I thought about them all night, and I can’t wait to see pictures!
 

We have laughed and cried this week!  Expressing tears of absolute joy, watching folks who have been together anywhere from 2 to 55 years getting married, finally being recognized as whole relationships.
 

But we also had some tears of sadness.  As part of my job on Let California Ring, I get to meet so many wonderful people and couples, getting to know them and hearing their stories.  I want to honor those who did not make it June 17th.  In the past week I have heard dozens of stories from people whose partners have passed away, the most compelling where those that passed within the last year.  These are mostly older people, people who fought hard so that we would see this day and did not live to see it come.  Many of their surviving partners have volunteered and helped us over the past couple of months as a testament to their love.
 

Two stories touch me the most…A woman in Palm Springs told me of a gay couple that have been friends with her and her partner for over 30 years.  One of them was diagnosed with a brain tumor and has been terminally ill for a year.  He was in the hospital last week, but held on to until Tuesday June 17th, and arrangements were made for someone from the county clerk’s office to come to the hospital to issue the marriage license.  The couple was married Tuesday afternoon in the hospital room.  He died at 11:30pm that night, but he passed married to his husband after being engaged for over 30 years.  He died with dignity, honor…and most importantly…love.
 

A local active volunteer lost her partner last year.  She and her partner had an appointment to get married in San Francisco in 2004, but the city closed down the marriages just days before their appointment.  Her partner died last year, and they were never able to marry. And every Thursday night when she is doing outreach with us at the local street fair, she waves to the sky, honoring the memory of her partner.
 

I hope you will join me in honoring these couples who almost made it there, but life cut short their opportunity for marriage.  By honoring them we demonstrate the social support, cultural respect and dignity of inclusion that comes with the freedom to marry for all. 
 

And I hope you will join me in celebrating with those who joyfully got married this week, and those who will be in the coming months.
 

Keep telling these stories and your own…keep having conversations with your friends, family, neighbors and co-workers.  By telling the stories of our lives we touch the humanity in others, and with each conversation we are a little bit closer to keeping the freedom to marry for all.
 

Ted Jackson  Let California Ring Field Organizer, Equality California :: Equality California Institute Support the Freedom to Marry: opening hearts and minds across California
http://letcaliforniaring.org

UP-DATE:06.29.08: Why is The Los Angeles Times Silent on Bennet v. Hollingsworth - - The Proposition 8 - - The Limit on Marriage Initiative Lawsuit?

Posted by Kevin Norte at 8:45 am .
Filed under: Gay Rights, California Politics, Marriage

magic8ball.jpgThe California Supreme Court has accepted the suit to determine if Proposition 8-the Marriage Amendment should be removed from the ballot because it is a constitutional revision, not an amendment. (A constitutional revision cannot be put on the ballot by initiative but only by 2/3 vote of each house of the legislature.)  The Court has asked for a response from Prop. 8 proponents and the Secretary of State by Monday, June 30th  and has asked the Petitioners (those who wish to remove it from the ballot) to respond by July 10th.  It is unclear if the Court will hold a hearing  or simply rule on the briefs.  It is also unclear what position Debra  Bowen, the CA Secretary of State, will take.  She is being represented by  Attorney General Jerry Brown’s office.  

06.29.08:Sunday’s Los Angeles Times FRONT PAGE article entitled, “Marriage Fight To Be Costly” failed to even acknowledge this lawsuit.   Furthermore, neither did the Times’ article entitled “Initiatives Tug At Voters’ Convictions“  mention the lawsuit.  The only record of the lawsuit in in the on-line edition.  But mention of the lawsuit has still not seen print.

From experience at fundraisers, I can tell you that people are afraid.  The Los Angeles Times  panders to the basic fears (irrational or not) on both sides of the issue by discussion how Prop 8 will most likely be the most expensive initiative campaign in history without reporting the entire truth.  That truth is that the initiative might be removed form the ballot by August 8th by the California Supreme Court.

Stay turned for what develops HERE.

Love Honor Cherish and remember, we must “Stop The 8″ 

June 26, 2008

Gay Republicans Applaud Right to Bare Arms But Disappointed That The Court Did Not Guaranty The Right To Bare Chests

Posted by Christopher Gilbertson at 12:18 pm .
Filed under: Miscellany

Washington) Log Cabin Republicans applauded the U.S. Supreme Court’s 5-4 ruling Thursday striking down Washington, DC’s 32-year-old ban on hand guns. 

The court ruled Thursday that Americans have a constitutional right to keep guns in their homes for self-defense. It was the justices’ first major pronouncement on gun control in U.S. history. 

The court had not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” 

The basic issue for the justices was whether the amendment protects an individual’s right to own guns no matter what, or whether that right is somehow tied to service in a state militia. 

Writing for the majority, Justice Antonin Scalia said that an individual right to bear arms is supported by “the historical narrative” both before and after the Second Amendment was adopted. 

The Constitution does not permit “the absolute prohibition of handguns held and used for self-defense in the home,” Scalia said. The court also struck down Washington’s requirement that firearms be equipped with trigger locks or kept disassembled, but left intact the licensing of guns. 

“This is an excellent decision for all Americans-gay and straight,” said Log Cabin Republicans President Patrick Sammon.  

“Unfortunately, too many LGBT Americans still face the threat of anti-gay violence. 

“We’re happy the Supreme Court has affirmed the right for us to protect ourselves and our families from harm.  Self defense is not a privilege, it’s a right,” said Sammon.   

Following the ruling the NRA said it will file lawsuits in San Francisco, Chicago and several of its suburbs challenging handgun restrictions there based on Thursday’s outcome. 

Sen. Dianne Feinstein (D-Calif.), a leading gun control advocate in Congress, criticized the ruling. “I believe the people of this great country will be less safe because of it,” she said. 

The capital’s gun law was among the nation’s strictest.

Major Development in Bennett v Hollingsworth

Posted by Christopher Gilbertson at 10:23 am .
Filed under: Gay Rights, California Politics, Log Cabin Members, What Do You Think?, Marriage
magic8ball.jpgKevin Norte, a research attorney for the Los Angeles Superior Court was the first legal analyst to publish articles on the “revision versus amendment” position since the Supreme Court’s historic ruling on May 15, 2008 in the In re Marriage Cases (2008) 43 Cal.4th 757.  Norte’s articles were published on May 21, 2008 and June 17, 2008 editions of the Metropolitan News-Enterprise.
 
Norte has commented on the writ matter entitled BENNETT v. BOWEN (HOLLINGWORTH) S165420 filed on June 20, 2008 which seeks to remove the “Limit on Marriage” initiative from the November ballot.  The Court has requested that the oppositions be filed by June 30th and the reply by July 10 and the Legal Analyst believes the Court, at a minimum,  will issue an alternative writ and a stay removing the initiative from the November ballot pending a determination or, he surmises that the Court may even break tradition and hear the matter in July or August even though the Court is not traditionally in session during those months.  Norte believes the measure will eventually be removed from the ballot and the Court will further expand the legal precedent by setting forth the criteria for what can and what cannot be on a voter initiative ballot in California.
    

The Superior Court research attorney noted that the “right to marry” itself is not expressed in the California Constitution but is implied by legal precedents.  To accept any amendments limiting the right to marry would open the doors to limit an implied constitutional right by amendment and not revision.  Furthermore, Norte even pointed out, prisoners under Legislature v. Yu  (1991) 54 Cal.3d 492 would have more rights than same gender couples if taken to an illogical extreme.

The Legal Analyst expressed the opinion that the problem with the Limit on Marriage proponents’ position is that in a constitutional democracy, equal protection and fundamental rights cannot be put to a popular vote. While not raised in his articles, Norte sees a similarity between the “Limit on Marriage” initiative and the City of Riverside anti-gay initiative that was removed from the ballot because it violated the 14th Amendment to the U.S. Constitution.  (Citizens For Responsible Behavior v. Superior Court (1991) 1 Cal.App.4th 1013.)  Otherwise if permitted, Norte opines, “the people could adopt an initiative barring Jehovah’s Witnesses from doing door-to-door proselytizing, or barring Muslim girls from wearing headscarves in public schools.     This initiative raises a whole host of issues.”   In Norte’s most recent article he stated, “One may wonder if an initiative that was submitted to the Secretary of State and its language approved by the Attorney General, and reviewed by the Legislative Analyst and the Director of Finance and stated that the initiative “would have no fiscal effect on state or local governments is valid due to the findings of the Supreme Court subsequent to the petition being circulated. Prior to the case it was true there would be no change to the manner in which marriages are currently recognized by the state” was valid. Subsequent, however, to its circulation but prior to its certification, the California Supreme Court changed the law. Based upon my research, there is no precedent on this issue in California.  However, to seek a pre-election review of the initiative, there appears to be only one viable option. That would be a challenge based upon the impropriety of the voter initiative itself.”UPDATE: ATTORNEY GENERAL JERRY BROWN WILL NOT BE OFFERING A SEPARATE OPINION BUT WILL BE REPRESENTING DEBRA BOWEN, THE SECRETARY OF STATE.  BROWN WILL FILE HIS PAPERS ON MONDAY.
 

June 23, 2008

“Marriage shouldn’t be government’s concern”

Posted by Terry at 7:11 pm .
Filed under: Gay Rights, California Politics, What Do You Think?, Marriage

The OC Register is one of the leading conservative newspapers in the state in one of the most conservative counties…

Orange County Register Sunday, June 22, 2008 

Editorial: Marriage shouldn’t be government’s concern. But since it is, there’s no reason not to extend the recognition to  same-sex couples 

http://www.ocregister.com/articles/marriage-state-sex-2073700-marriages-people 

June 21, 2008

Lawsuit Filed to Remove Marriage Initiative

Posted by Christopher Gilbertson at 8:49 am .
Filed under: Gay Rights, California Politics, Marriage

magic8ball.jpgMARRIAGE EQUALITY GROUP ASKS CALIFORNIA SUPREME COURT TO REMOVE NOVEMBER SAME-SEX MARRIAGE BAN INITIATIVE

20 June 2008  

BY JULIA CHEEVER
Bay City News

Marriage

(CLICK HERE TO READ THE FULL DOCUMENT)

A marriage equality group asked the California Supreme Court in San Francisco today to remove from the November state ballot an initiative that would ban same-sex marriage.

Equality California argued in a lawsuit filed directly in the high court that the measure would be a state constitutional revision, not an amendment, and would therefore require more elaborate procedures for passage.

While a constitutional amendment can be enacted by a voter initiative alone, a proposed revision must be approved by two-thirds of each house of the Legislature before being submitted to state voters.

Lawyers for the civil rights group wrote that the initiative slated for the Nov. 4 ballot is a revision because it would “alter the underlying principles on which the California Constitution is based.”

The measure would change the document “by severely compromising the core constitutional principle of equal citizenship (and) depriving a vulnerable minority of fundamental rights,” the lawsuit alleges.

Attorney Stephen Bomse said, “We filed this lawsuit because the sponsors of the initiative haven’t followed the very constitution they’re trying to change.

“For good reason, there’s a strict process for making revisions to our constitution and it’s more involved than simply collecting petition signatures,” Bomse said.

The ballot measure would amend the state constitution to require that “only marriage between a man and a woman is valid or recognized in California.”

It would overturn the state high court’s May 15 ruling that the California Constitution’s guarantees of equal treatment and privacy provide a right to same-sex marriage.

A conservative Christian legal group vowed today to fight the new lawsuit.

Glen Lavy, a lawyer with the Arizona-based Alliance Defense Fund, said, “Equality California and its allies are desperate to evade democracy.”

Lavy said the fund and ProtectMarriage, a coalition of supporters of the initiative, “will defend the right of the people to participate in democratic process and vote on the constitutional amendment.”

The lawsuit was filed against Secretary of State Debra Bowen and five individual proponents of the initiative.

It asks the court to issue a stay blocking the measure from going to the state printer until the panel has held a hearing and issued ruling on whether the initiative should be taken off the ballot.

The court has the options of holding a hearing on the lawsuit, acting on the petition without holding a hearing or sending the case to a lower court.

Lawyers for Equality California wrote that they filed the case directly in the state high court because the Aug. 11 deadline for ballot measures to go to the printer does not allow time for the case to work its way through lower courts.

Equality California, which is headquartered in San Francisco, was joined in the lawsuit by three individual plaintiffs from Long Beach and San Francisco.

They are represented by lawyers from the American Civil Liberties Union, the San Francisco-based National Center for Lesbian Rights, the Los Angeles-based Lambda Legal Defense and Education Fund and two private law firms.

In a second argument, Equality California contends the initiative was misleading because petition signers were told last fall and winter that the measure would make no change in the manner in which marriage is recognized in California.

In fact, the California Supreme Court had already agreed to review the lawsuits seeking a right to same-sex marriage and thus it was possible that such marriages would be allowed, the lawsuit says.