Reading the Prop. 8 Decision So You Don’t Have To

As Frazgo so helpfully posted, federal district Chief Justice Vaughn Walker ruled on Wednesday that Proposition 8 was unconstitutional — the first time that such a law was struck down on federal (as opposed to state) grounds.  Briefs were submitted yesterday on the issue of whether California gay couples can get out their tuxes and dresses and party like it was pre-Prop. 8 2008, or if we must wait until all appeals have been exhausted (it may be a year from now before the appeal is even heard) (awesomely, both the state Attorney General and the Governator filed briefs requesting that the state be permitted to marry gay couples (to each other)).  Judge Walker’s opinion is lengthy — all 136 pages of it can be read here — but you don’t need to be a lawyer to get through it and understand how he came to is conclusion.  I pulled a few of the choicest quotes that track his thinking, which I hope makes the decision easier to understand.

FYI – to you lawyer nerds, I’ve omitted all citations and am citing to his opinion non-Bluebook style.  Take that, law journal.

The Basics

The state is interested in … “A state’s interest in an enactment must of course be secular in nature.  The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.”  (at 8)

ˈmarij: “Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.”  (at 67)

Judge Walker’s Findings of Fact (based extensively on the evidence presented at trial)

Why California even cares about ‘marij. “The state has many purposes in licensing and fostering marriage.”  Purposes include: “Facilitating governance and public order by organizing individuals into cohesive family units”; “Developing a realm of liberty, intimacy and free decision-making by spouses”; “Creating stable households”; and “Legitimating children.” (at 67-68).

Why we even care about ‘marij. “States and the federal government channel benefits, rights and responsibilities through marital status.  Marital status affects immigration and citizenship, tax policy, property and inheritance rules and social benefit programs[.]”  (at 68)

Gay people have been here since the beginning of time, so all of you who say being queer is “unnatural” are a little behind in their World Studies class.  We’re on page 2010.  “Same-sex love and intimacy are well-documented in human history.  The concept of an identity based on object desire;that is, whether an individual desires a relationship with someone of the opposite sex (heterosexual), same sex (homosexual) or either sex (bisexual), developed in the late nineteenth century.”  (at 71)

… and gays are here to stay. “Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”  (at 74)

Gays are just like straights!  I know, this is why many straight people are scared of the gays.  Fear of the self is very confusing.

Love for random film festivals is just one of the many characteristics that both homosexuals and heterosexuals share.

“Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.  Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners.  Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.” (at 79)

[^^ I guess that had to be said, officially and judiciously.]

Separate.  Not equal.

“Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.”  (at 85)

The campaign against Prop. 8 failed, but the campaign to support it failed even more. “The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian.  The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements.  Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.”  (at 105)

[youtube]http://www.youtube.com/watch?v=0PgjcgqFYP4[/youtube]

Judge Walker’s Conclusions of Law

Due Process. “Due process protects individuals against arbitrary governmental intrusion into life, liberty or property.” (at 109)

[Background: Under a long line of Supreme Court cases, the individual freedom to marry is considered a fundamental right protected by the Due Process clause of the U.S. Constitution.  The Due Process issue in the Prop. 8 case was whether gay couples who wished to get married were seeking to exercise their individual (and fundamental) rights to marry (which then would be protected under the Due Process clause), or whether they were seeking to create a new right (which would not necessarily be protected under the clause).]

Anyway you slice it, you’re comparing apples to apples. “To characterize plaintiffs’ objective as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage.  Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.” (at 114)

“California has created two separate and parallel institutions to provide couples with essentially the same rights and obligations. … domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage.  [D]omestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples. …   The record reflects that marriage is a culturally superior [social] status compared to a domestic partnership.  California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples.”  (at 116) (emphasis added)

Tyranny of the majority sucks.

You also have a right to equal protection of the laws

[Background: Under the Fourteenth Amendment of the U.S. Constitution, no state can deny its citizen equal protection of its laws.  However, laws often do create certain classes of people and treat the classes differently –  for example, for purposes of being able to buy alcohol, the law distinguishes between those under 21 and those 21 and over.  If the law’s classification scheme calls out individuals in a “suspect class” –  a group of people historically discriminated against – the state’s interest in enacting the law must be “compelling.”  The court will take a narrow reading of the law to balance the state’s interest with the constitutional rights of the suspect class members.  The court engages in the same type of “strict scrutiny” analysis if the law affects a “fundamental right” like the right to marry (see above).

On the other hand, if the law does not affect a suspect class or a fundamental right, it will be upheld so long as it is rationally related to some legitimate state interest.  Judge Walker, having determined that the fundamental right to marry was on the line, could have – but did not – analyze Prop. 8 using the strict scrutiny analysis.  Instead, the bulk of his opinion here is that Prop. 8 violates the Equal Protection clause because it does not even survive the considerably more lenient rational basis test.]

On the argument that Prop. 8 is rationally tied to the state’s interest in “reserving” marriage as a union between a man and a woman:  No.  You make reservations at a restaurant, not at the altar. “The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its ‘ancient lineage.’ Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. … Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.”  (at 124)

On the argument that Prop. 8 is rationally tied to the state’s interest in promoting opposite-sex parenting over same-sex parenting:  No.  Regardless of whether the parents are gay or straight, their children likely will have issues that will have to be worked out in future therapy sessions. “Indeed, the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.  Moreover, Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying.”  (at 127)

“Proponents argue Proposition 8 advances a state interest in encouraging the formation of stable households.  Instead, the evidence shows that Proposition 8 undermines that state interest, because same-sex households have become less stable by the passage of Proposition 8.  The inability to marry denies same-sex couples the benefits, including stability, attendant to marriage.”  (at 128)

On the argument that Prop. 8 was rationally tied to the state’s interest in protecting the rights of those who oppose same sex marriage: No. Hey, I don’t approve of straight marriage, but you don’t see me trying to pass  a law against it.    “To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying, […] those individuals’ moral views are an insufficient basis upon which to enact a legislative classification.”  (at 130)

Fine, hate us, but stop projecting already. “In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.  Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.  See Palmore v Sidoti, 466 US 429, 433(1984) (“[T]he Constitution cannot control [private biases] but neither can it tolerate them.”)” (at 132)

Huzzah!!

“Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.” (at 135)

[youtube]http://www.youtube.com/watch?v=dCLClFEtO0E[/youtube]

(watch the video that this parodies here)

Prop 8 Rulings to be read this morning.

You remember that pesky proposition that took away the right for gay and lesbian couples to marry?  Well the courts are about to release their decision on the first of many challenges.  Judge Vaughn Walker is going to be handing down his verdict on whether or not Prop. 8 is legal.  His decision is expected to be revealed sometime this morning.  Rallies are planned around the state and country regardless of the outcome.  I ask that it be a common sense verdict with the rights restored, but realize this verdict is just one step in the legal process with appeals surely to be filed.

Rally locations in the metro area today:
West Hollywood: 6:00pm – 8:00pm
West Hollywood Park
647 N San Vicente Blvd
West Hollywood, CA
Recommended Entrance on San Vicente Blvd
Parking:Pacific Design Center – 8687 Melrose Avenue
Los Angeles: at Olvera Street at 8:00pm
Event link for more info HERE:
Rancho Cucamonga: 8/4, Rally After Prop 8 Decision Announced, Day Crk/Foothill Blvd, 11 PM. Link HERE.

Discrimination Death March, Silver Lake, 11/4

DSC_0427

I always understood the general rule to be: one in 10 people is gay.  This ratio, which apparently has been oft-repeated to a point where it still remains lore 10 years after I first heard it (the gay population apparently has not adjusted for inflation), is a nice shorthand for: it could be you.  (One of my favoritest people of all time, Jane Lynch, interviewed with Terry Gross on NPR yesterday, and this was her reaction to her 20something realization that she is gay: “Oh man, really?”).  The threat that you could be the one left holding the rainbow flag is the greatest fear tactic of all: it results in the simultaneous internalization and externalization of one’s homophobia.  This is, in part, what moves certain people to go to the polls, draw the little iron curtain, and, in the comfortably private, if not stuffy, polling station, mark a mark that will seal the fate for all those ones in tens, if not themselves.  And they are, of course, protecting the children.  Remember the children!

Yesterday – one year after Prop. 8 passed here, and one day after a similar referendum passed in MaineEquality Network organized “Death to Discrimination,” a march-and-mourn protest and rally in Silver Lake.  The LA Times estimates that 60 people were present when the march started, but grew to a bit over 200 as the march marched up Vermont and down Sunset towards its destination in front of Le BarCito at Sunset Junction (overall, a decent turnout, but a far, far cry from the 700+ people who RSVP’d for the event on Facebook — like certain people I’m sometimes frustrated to know, you’ll always have flakes).  As the speakers began their spiels to the converted, the number of people dwindled – slowly at first, then “exponentially faster,” as Narinda Heng, my fellow mourner, observed.  Tip to future organizers: a rally and protest aren’t the Oscars.  Keep the speeches short well before the orchestra starts to hum its boredom.

A handful of pictures from the post-march rally, after the jump.

Continue reading “Discrimination Death March, Silver Lake, 11/4”

Top chef on marriage equality

Tom Colicchio
Tom Colicchio

“The idea that religious leaders are continuing to shape state law is just wrong.”

Remember last fall’s boycott of El Coyote restaurant in West Hollywood by supporters of same-sex marriage after it was learned an owner had donated money to the campaign to pass Prop 8?

El Coyote had a sizable gay clientele on Thursday nights, the unofficial “gay night” at the restaurant, which packed the place. That all changed in the aftermath of Prop 8’s passing when the owner’s name appeared on donor lists that were available online and publicized by some media outlets.

Demonstrators appeared in front of the restaurant, business fell off on Thursdays, the pilloried owner did herself no favors when she tried to explain herself, saying if she had a chance to do it all over again, she would do the same thing, citing her religious convictions.

Such a mess for such a mediocre restaurant.

Enter Tom Colicchio, Bravo TV’s Top Chef lead judge and owner of Craft, his first venture into the  Los Angeles restaurant world, located in Century City. Continue reading “Top chef on marriage equality”

CA Gay group will wait until 2012 for Prop 8 repeal effort

After much handwringing and consideration, Equality California, the gay rights organization, has decided to hold off until 2012 to push for a ballot initiative to repeal Prop 8, which banned same-sex marriage in the state. An impassioned debate over whether to place an initiative on either the 2010 or 2012 ballot had been playing out over the past several months.

I initially wrote about it here last month, when three gay rights organizations successfully got the National Gay and Lesbian Task Force in DC on board  to wait until 2012, which at the time I suspected was the writing on the big gay wall.

In a related matter, some gay leaders are at odds over a hastily planned march for marriage equality in Washington DC this fall, on October 11th.

Groups urge delaying Prop 8 repeal initiative to 2012

2010 seen as “rushed and risky.”

Should marriage equality supporters push for a ballot initiative in next year’s November election that would repeal Proposition 8? Not according to three gay advocacy groups in California that jointly released a statement urging a delay until 2012.

The statement, “Prepare to Prevail,” was released this week by the Jordan/Rustin Coalition, an African American LGBT advocacy group; API Equality-LA, an Asian and Pacific Islander LGBT advocacy group; and HONOR PAC, which advocates for empowering Latina/o LGBTs.

The groups implore supporters of same-sex marriage “to forego a rush to the 2010 ballot box to repeal Proposition 8” and “start now in building the campaign infrastructure and robust public education efforts needed to win back marriage equality.”

Going back to the ballot to remove the voter-imposed ban on same-sex marriage from the state constitution in 2010 would be rushed and risky. We should proceed with a costly, demanding, and high-stakes electoral campaign of this sort only when we are confident we can win.

Popular support for marriage equality for same-sex couples has not changed since the last election. Today, California voters’ opinions on a constitutional amendment to overturn the voter-imposed elimination of marriage equality remain evenly split, according to all recent polls.

The National Gay and Lesbian Task Force, based in Washington, DC,  has signed on to the statement by the California groups:

Build solid majority support for the freedom to marry before returning to the ballot.  Multiple polls have shown that support for marriage equality has remained flat since November 2008. The LGBT community will be in a stronger position to win if we’re defending, and not attempting to create in the midst of a campaign, majority support at the ballot box for the freedom to marry.

Cheney supports gay marriage

cheneyFormer Vice President Dick Cheney is making headlines again but this time it’s not about torture.

Asked today at the National Press Club in Washington DC about recent state level decisions regarding same sex marriage, including California’s  state supreme court ruling upholding Proposition 8, Cheney said,

I think that freedom means freedom for everyone. As many of you know, one of my daughters is gay and it is something we have lived with for a long time in our family. I think people ought to be free to enter into any kind of union they wish. Any kind of arrangement they wish. The question of whether or not there ought to be a federal statute to protect this, I don’t support. I do believe that historically the way marriage has been regulated is at the state level. It has always been a state issue and I think that is the way it ought to be handled, on a state-by-state basis. … But I don’t have any problem with that. People ought to get a shot at that.

The report on Huffington Post also points out the Obama administration being seemingly at odds on the gay marriage question with a growing number of voices on both sides of the political spectrum.

The president has said he supports civil unions for gay couples but that he remains committed to marriage being between a man and woman. His press department has been completely quiet about the recent California Supreme Court case upholding a ban on gay marriage in the state.

Photo: US federal government/public domain

[UPDATE: Video of Cheney’s remarks after the jump.] Continue reading “Cheney supports gay marriage”

No on 8 Rally downtown LA 3/4 5:30PM

eveofjusticeThe good folks at Marriage Equality are hosting an “Eve of Justice” rally Wednesday March 4th at 5:30PM on Olivera street.  Literally this is the evening before the start of the  Supreme Courts hearing oral arguments challenging the validity of Prop 8.

Attend.  Make your voice heard on this important social issue. 

DEETS:  March 4th, 5:30-8 PM  Olvera Street between N. Main and N. Alameda (2 blocks for Union Station) in LA.

If you are facebook enabled you can get more details and  RSVP HERE.  Otherwise you can make the jump to the press release from the Marriage Equality folks. Continue reading “No on 8 Rally downtown LA 3/4 5:30PM”

Prop 8 Oral Arguments to be heard in Supreme Court 3/5/09

Equality California just sent the news release on Prop 8 Challenges to be heard in CA Supreme Court.  The short of it is that on March 5 the first of the cases that are legal challenges to Prop 8 are to be heard in Supreme Court.  They will be televised on Calfornia Channel so we can watch the proceedings…dry as they may be.  The courts decision is then due in 90 days or about June 5.  We may have June weddings for everyone again if it goes well.

The first of the cases is Strauss vs Horton et al with details on the California Courts Prop 8 page.  

There will be two other cases on Prop 8 also heard that day.  Among them is the case filed by the City of Los Angeles and the County of Los Angeles that also are an effort to overturn Prop 8 on constitutional grounds. (I can’t tell you how proud I am to be an Angeleno when the city and county step in the way they did).

Folks, no matter how you slice it this is a civil rights issue and needs to be in the courts to make a constitutional ruling once and for all.  This time they are also looking at the effort to rewrite the constitution to fit some dogma and strip people of their rights.  This is no different than a “jim crow laws” that took court rulings to restore equality and level the playing field for people.   For this reason I have donated to Equality California to continue their efforts.  You may do so too HERE.  Full press release after the jump.

Continue reading “Prop 8 Oral Arguments to be heard in Supreme Court 3/5/09”

LGBT Action Fair Highlights Why Prop 8 Passed

Simply put, the major forces behind the No on 8 campaign ignored all of the grassroots organizations that could have truly helped marriage equality become a reality.

Yesterday’s action fair was organized by quite a few grassroots organizations and heavily promoted through JoinTheImpact’s activist network. All of this was also advertised under a national protest against DOMA: the federal Defense of Marriage Act. Signed into law in 1996 by then-President Bill Clinton, it prohibits same-sex marriages from EVER being recognized by the federal government, effectively delegating the decision to individual states. President-elect Barack Obama promised during his campaign to repeal the law and the event was organized to remind Obama (and his supporters) of the promises made.

Display of LGBT activist pins at the LGBT Action Fair
Display of LGBT activist pins at the LGBT Action Fair

Continue reading “LGBT Action Fair Highlights Why Prop 8 Passed”

Two Weeks In Rock: Palmer Kisses Perry, Dolls Kick Ass & Take Names

from Metblogs contest winner OtterFreak

It’s been a brilliant last few weeks in rock here in LA, and I though I’d post some pics taken by friends of LA Metblogs / winners of LA Metblogs ticket contests.

From Metblogs contest winner Burns!
From Metblogs contest winner Burns!

To the left, Amanda Palmer of the Dresden Dolls in her powerful solo show, introduced by Neil Gaiman (“Amanda Palmer is dead”) and joined at the end of her performance (after a rendition of Rihanna’s “Umbrella,” complete with real rain) by a (possibly faux?) Katy Perry and a very real Margaret Cho, who conspired with Palmer to ensure Perry actually really kissed a girl, and not just for record sales (plus a gay wedding!).

From Friend of Metblogs Michael Chavarria

A few days later came the Cracker / New York Dolls/ X show at the brand-spankin-new Club Nokia, where Cracker (one of my fave bands) delivered a solid set and a slam-bang version of “Lonesome Johnny Blues” (crossing my fingers they’ll do their Campout again next year).

From Friend of Metblogs Andy Sternberg (LAist)

Then the New York Dolls came on with what could only be termed as a triumphant powerhouse of a performance, egging the audience on until bleach-blond waifs were wilting like flowers in the front row and disaffected emo kids were spazzing out dancing. Seeing bands like this, who’ve survived through so much, return to the stage and just KILL–it makes my little black heart glad. X followed and tore through everyone’s faves, with a dash of X-mas (har har har) spirit thrown in (and here‘s a report by Metblogs contest winner Chez Shoes).

If you have pictures, you may want to post a link in the comments as well. Thanks, everyone, for playing, and keep the entries coming! More shows will be posted in the next few days.


Video: John Waters’ 1970s version of gay equality

In 1974, the movie Female Trouble, arguably regarded as writer/director John Water‘s low-budget masterpiece, couched the idea of gay assimilation from a backhanded and perverse perspective, only five years after the Stonewall riots in New York ignited the modern gay rights movement.

It’s a long road from Stonewall in NYC to the struggle over Prop 8 in California, but it’s clearly the same road.

[youtube]http://www.youtube.com/watch?v=YeWgYXsYsWo[/youtube]

Video: El Coyote owner begs gays to keep spending money at her restaurant

Here’s video of a tearful, stammering Marjorie Chrisofferson, one of El Coyote’s owners who donated $100 to the campaign to pass Prop 8, apologizing for the donation and pleading with gays “to understand” and not boycott her business at a meeting held yesterday at the restaurant.

In the second video, another owner says Chrisofferson “would take back” the donation if she could. Things unravel when Chrisofferson, flanked by her daughters, is asked if she would make a donation to the effort to repeal Prop 8, as an “ovation to the gay community.” Shouting erupts as her daughters lead her out of the room.

[youtube]http://www.youtube.com/watch?v=wVYEyV71gSI[/youtube]

[youtube]http://www.youtube.com/watch?v=tH3nzM_aeoc[/youtube]

Repeal 8 efforts continue in advance of 11/15 Rally

[youtube]http://www.youtube.com/watch?v=W4xfMisqab8[/youtube]

This commentary is a much more eloquent oration of what we teach our kids “you can’t help who you fall in love with”.  Courage Campaign attached this video in thanking my wife and I for our support of the effort to Repeal Prop 8.  They asked we forward to friends and attach to our social networks.  I’ll do one better, I’ll post it here.  If you haven’t known where to turn to be involved, they are a start at the Courage Campaign.

Equality California/EQCA sent its daily reminder of activities to Repeal as well.  They have numerous efforts to repeal as well.  Some activity is in the courts, other is in preparation for the rallies this weekend.

To read their entire press release you need to make the jump.  To make a difference now as at the time of the election you need to be involved and support how you can.

Continue reading “Repeal 8 efforts continue in advance of 11/15 Rally”