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)

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)

(watch the video that this parodies here)

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 Maine – Equality 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.

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. (Since the mid-’90s, his places have been sprinkled like fresh herbs all over Manhattan’s foodie jungle.)

In response to a recent episode of Top Chef when a lesbian contestant balked at cooking for an opposite-sex wedding in light of same-sexers being legally banned from marriage rights, Colicchio posted on his Bravo site blog about his views on marriage equality:

I’m going to go out on a limb and say a few words about same-sex marriage: First of all, part of the problem with the issue is that it is framed by opponents as a discussion of whether gay people should get special rights. This is specious – yes, special legislation or court decisions grant them the right to wed in a particular state, however this is done to ensure that they share equal protection under the law by finally being able to avail themselves of the same rights as everyone else.  They are not seeking special treatment, just equitable treatment.

Second, religion has no business being part of the discussion. When a couple is wed in a house of worship, the officiant may be performing a religious rite, but as far as the law is concerned, that officiant has been authorized to perform a civil function, plain and simple. And even were same-sex marriage to be legalized by the state, no one would be holding a gun to the heads of the clergy to require them to perform a ceremony that their faith or personal creed does not condone.

Just as some rabbis would not perform my marriage to my wife because I wasn’t Jewish, clergy can decline performing same-sex marriages; gay couples can either find clergy willing to officiate or can be wed in a civil setting.

The idea that religious leaders are continuing to shape state law is just wrong. The institution of marriage should be available to all. The idea that you can have a life-long partner and not make decisions for them in a hospital, not share in insurance benefits, not automatically have parental rights unless you are the birth parent, is just flat-out wrong.

Via Towleroad.

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.

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.

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.]

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.

Marriage Equality USA is organizing these events across the state and a few other places in the country, so if you aren’t in L.A., that’s no excuse! Go to http://www.eveofjustice.com/ And check it out for a location near you!

The Eve of Justice: Lighting the way for the Supreme Court is an opportunity to inspire hope, and change hearts and minds the night before oral arguments on Prop 8′s validity begin.

This event will open at 5:30 pm, March 4th on picturesque Olvera Street in downtown Los Angeles.

As Californians—families and friends will gather to express that equal marriage rights are vital to our lives and community. It is wrong to take away basic rights from a minority group at the ballot box. One of the highlights will be a re-commitment ceremony of married couples by Civic Leaders. Between musical acts and personal stories we will hear from a diversity of faith leaders. And, as dusk turns into night, the one-thousand-plus attending the “Eve of Justice” will join together lighting and holding candles to demonstrate in one image how united we stand.

If you are unable to attend, please consider making a donation, however small, athttp://www.eveofjustice.com/LA

(In L.A., try to take the subway…there are convenient stops and lousy parking at the location. And don’t forget to bring your candles!)

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.

The California Supreme Court announced today that it will hear oral arguments on Thursday, March 5, 2009 in the Proposition 8 legal challenge.

On November 19, 2008, the California Supreme Court agreed to hear the legal challenges to Proposition 8 and set an expedited schedule. Briefing in the case was completed on January 21, 2009.

The California Supreme Court must issue its decisions within 90 days of oral argument.

On January 15, 2009, 43 friend-of-the-court briefs urging the Court to invalidate Prop 8 were filed, arguing that Proposition 8 drastically alters the equal protection guarantee in California’s Constitution and that the rights of a minority cannot be eliminated by a simple majority vote. The supporters represent the full gamut of California’s and the nation’s civil rights organizations and legal scholars, as well as California legislators, local governments, bar associations, business interests, labor unions, and religious groups.

In May of 2008, the California Supreme Court held that laws that treat people differently based on their sexual orientation violate the equal protection clause of the California Constitution and that same-sex couples have the same fundamental right to marry as other Californians. Proposition 8 eliminated this fundamental right only for same-sex couples. No other initiative has ever successfully changed the California Constitution to take away a right only from a targeted minority group. Proposition 8 passed by a bare majority of 52 percent on November 4.

The National Center for Lesbian Rights, Lambda Legal, and the ACLU filed this challenge on November 5, representing Equality California, whose members include many same-sex couples who married between June 16 and November 4, 2008, and six same-sex couples who want to marry in California. The California Supreme Court has also agreed to hear two other challenges filed on the same day: one filed by the City and County of San Francisco (joined by Santa Clara County and the City of Los Angeles, and subsequently by Los Angeles County and other local governments); and another filed by a private attorney.

Serving as co-counsel on the case with NCLR, Lambda Legal, and the ACLU are the Law Office of David C. Codell, Munger, Tolles & Olson LLP, and Orrick, Herrington & Sutcliffe LLP.

The case is Strauss et al. v. Horton et al. (#S168047). Click here for more information.

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

The fair was held in the West Hollywood Community Center and about 15 various organizations set up shop to explain their purpose, recruit new activists, and show off their unique methods of spreading awareness and empowering the community.

I showed up around 4pm (due to two catastrophic tube failures during my ride to WeHo) and was surprised to find the hall full and brimming with activity. (This only exponentially increased in the next two hours.) I was surprised because I expected this movement to be dying out. It’s been over two months since Prop 8 was passed; even if the Supreme Court still hasn’t heard the full arguments against it and even if there’s still a chance that it will get overturned, time dilutes passion. And with few things left for the citenzry to actual do themselves, the new civil rights movement was bound to lose steam.

But this simply isn’t true, and the LGBT Action Fair proved that grassroots political action is alive and well.

Gabriel Avila of the YPC discusses the importance of youth activism

Gabriel Avila, who represented the Young Professionals Council, a part of the Gay and Lesbian Center, was on hand to help recruit a vital demographic that will help keep this movement alive: youth. “The Young Professionals Council is concerned primarily with empowering the youth in Los Angeles,” he said. “The truth is that, while 80% of our funds come from patrons over 60, we need the youth energy to stay alive.” The YPC spoke to people about how to get involved in a grassroots organization, how to use the Gay and Lesbian Center in LA to provide for the gay youth in the city, and how the Center provides outreach to the community.

The Courage Campaign was also present to help give people an outlet to express their distaste with Proposition 8. I spoke with one of the organizers, David Fleck, about why the Courage Campaign was so interested in supporting the marriage rights of Californians. “We’re essentially the California equivalent of MoveOn.org,” Fleck explained. “Our primary goal is to help other organizations. We believe that California should be a progressive state. And when we take the rights away from a minority, we believe that progressive state has been threatened.”

“We don’t just support marriage equality,” he continued. “We support a wide range of issues; it’s just that this one is an immediate concern of ours.” The group was present at the fair and had interested parties pose for individualized photos that read, “Please Don’t Divorce _______________.” (Fill-in-the-blanks, of course.)

The Courage Campaign's visual project.

The event closed with a few enthusiastic guest speakers in West Hollywood Park, including mayor Jeffrey Prang, as well as a live presentation of Marc Shaiman’s “Prop 8: The Musical.” And it was a smart move ending the event on such a positive note. (Not that the event was ever negative.) The LGBT Action Fair demonstrated the tenacity, the effectiveness, and the rare power that a grassroots organization can bring to a movement. Even though the event was scattered with different methods of spreading awareness, providing different techniques as an outlet for anger and passion, and was home to a variety of opinions on the status of our movement. However, everyone had the same goal and, for a group so disparate and varied, this is precisely what the No on 8 campaign missed out on. By not including virtually any grassroots organizations in their campaign, a golden opportunity was missed: the opportunity to tap into a wealth of talent, ingenuity, creativty, and passion.

The quest for human rights was bursting with passion in West Hollywood this weekend. Let’s hope that those who are battling for our rights in the courts and on the streets start recognizing this.

Young Professionals Council website: http://laglc.convio.net/site/PageServer?pagename=YC_YPC

Courage Campaign website: http://www.couragecampaign.org/