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News and commentary about the anti-gay lobbyOctober 2nd, 2009
One of the arguments of the Olson/Boies legal team that is suing to overturn California’s Proposition 8, is that the motivation and intent behind the anti-gay marriage amendment was one of animus directed towards gay people as a group. This might prove to be an effective strategy; in Romer v. Evans, the Supreme Court of the United States threw out Colorado’s anti-gay Amendment 2 partly because it established a class of people in order to enact discrimination upon them.
To advance this argument, they subpoenaed the correspondence of the Yes on 8 campaign. Naturally, the campaign resisted, but Judge Vaughn Walker agreed with the Olson/Boies argument. (SJ Merc)
Denying a request to shield the information, U.S. District Chief Judge Vaughn Walker said the Protect Marriage campaign had failed to show that providing private e-mails, memos and reports would inhibit the political activities of gay marriage opponents or subject them to unbridled harassment.
“The First Amendment qualified privilege proponents seek to invoke, unlike the attorney-client privilege, for example, is not an absolute bar against disclosure,” Walker wrote in an 18-page order. “Rather, the First Amendment qualified privilege requires a balancing of the plaintiffs’ need for the information sought against proponents’ constitutional interests in claiming the privilege.”
The judge agreed with lawyers for two unmarried same-sex couples who have sued to strike down the ban, known as Proposition 8, that confidential communications between the campaign’s leaders and professional consultants could reveal a rationale for denying gays the right to wed that is relevant to the case.
The most relevant information will be in relation to what messages the campaign decided not to present to voters as this will put those they did use in perspective.
But I’m sure that the virulent homophobia and blind hate expressed in the communications will also go far to illuminate the attitudes of the campaign against marriage. Unless, of course, the Yes on 8 Campaign always spoke in loving terms about gay people and couples (hey, is that a pig I saw fly past my window?).
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Ben in Oakland
October 2nd, 2009
I wrote this (much abridged) on this very subject:
“I received the list of words that we were supposed to avoid, including these three: prejudice, religion, and children…
I’m not a lawyer, but I do have my 58 years of life, and 37 years as an out, proud, and happy gay man to guide me… Once again, I see these three words being avoided: children, religion, and prejudice. And if this is indeed the case, then I truly fear that result will be the same. It will allow our opponents to say once again, “We don’t hate you. We’re just trying to preserve heterosexual marriage/the family/traditional values,” by which they mean the myth of heterosexual superiority and the realities of heterosexual privilege and prejudice. It will also allow them to continue to claim that somehow, if gay people are protected from discrimination, whether in marriage or the usual employment/housing/accommodations, that their freedom of religion is compromised, by which they mean their freedom to discriminate against gay people on the basis of their religious belief.
For 2000 years or more, gay people have been subject to a vicious, virulent, and consistent prejudice. We have been imprisoned, slandered, criminalized, degraded, pathologized, and murdered for being different. There are many people who deem it a good thing to make our lives as difficult and unpleasant as possible, often under the guise of “We love you” and “This is for your own good”. That this prejudice exists is beyond all doubt. The bulk of the Yes on 8 campaign was a conglomeration of known lies, distortions, and the-gays-are-gonna-get-your-children fear mongering, all very consistent with the existence of a prejudicial mindset. Prejudice and bigotry are not good bases for either law or public policy, and as we have progressed as a society, we have consistently rejected them.
So why is prejudice apparently not a part of our legal and strategies? Are we still afraid to call the people prejudiced who have slandered us for two millennia– or for twelve months straight– especially since we know it is true? Whether it is presented as sincere religious belief, or admitted for what it is, it is still prejudice. Why can we not say that absent a compelling, factual, and real reason, our equality before the law cannot be compromised by someone else’s prejudice? I know the argument goes that we win no converts by calling people bigots. As far as I am concerned, if we are willing only to be silent about it, we are consenting to it. We can be polite, but we have to start being truthful. The closet depends on both lies and silence for its power over gay people and its support from heterosexuals. We don’t have to call people bigots. We do have to start talking about bigotry. We are not responsible for how people to react to us. We are only responsible for who we are, and to tell the truth.
I would re-phrase that for gay people. “I have been fed up all my life, as far back as I can remember, with being treated as less than a whole person, as not good enough, not citizen enough, not human enough, to allow me the simple dignity and respect of living my life in peace. Well, actually they will allow that, as long as I don’t demand equality before the law — or respect, or dignity, or to live my life in peace.”
It has been documented over and over again that the Catholics and the Mormons, along with other religious conservatives, were the primary organizers, financiers, movers, and promoters of Yes on 8. In fact, they are proud of it. Their arguments were primarily religion based: it’s against our religion, God ordained that marriage is between a man and a woman, ministers will be jailed, churches will be taxed and/or sued, religious freedom violated. The President of the Mormon church sent out a letter encouraging Mormons to “do what they can”, resulting in millions in out of state donations. Pastoral letters from the Catholic Bishops were read in church; Bishops Niedeaur and Mahoney have trumpeted their parts in this, claiming that they are only doing their Catholic duty. Brigham Young university students were encouraged to phone bank. All of this to enforce a certain, conservative religious view about homosexuality, and place a religious view about same-sex marriage onto the civil contract of marriage. The state, by virtue of the First Amendment, is supposed to be neutral in religious matters. By enforcing 8, the state is not being neutral. My marriage is a civil matter, with nothing to do with anyone’s religion but my own. We don’t have to attack people’s religion. But we to have to start talking about religion, freedom of religion, and the difference between religious belief and civil society.
One issue that MUST be addressed under the rubric of equal protection is this pernicious and false belief that Domestic Partnership confers exactly the same rights under California law as marriage. Not only does DP stop at the state line, which marriage does not, but there is one other extremely significant difference: No one will ever vote on any heterosexual’s right to marry as often and badly as they wish, provided they are legally eligible. But, if they can vote to “disappear” my marriage, then they can vote to “disappear” my domestic partnership as well. And they would have done so if they thought they could have gotten away with it. Let us not forget that there was another petition being circulated by Randy Thomason which would have done exactly that.
Where is the lawsuit from a coalition of religious groups– UU, UCC, Episcopal, Reformed Judaism, to name but a few, plus a host of ministers from many other denominations– who don’t want their religious beliefs dictated by the conservatives and imposed upon civil law, especially in the matter of how civil law affects their parishioners? Since this is a civil contract, why is my access to it compromised by the religious beliefs of people who want their religious views reflected by civil law? Why is it that only THEIR freedom of religion the one that counts?
Moreover, just because they claim it is about their religious beliefs does not make that a true statement. Nor does it make it right. It only makes it sound reasonable, unmotivated by hate or fear. Like all prejudice, religious prejudice is never reasonable. It’s just prejudice. And what about MY freedom of religion, which is every bit as important as theirs? Again, by not speaking out about it, we are consenting to it. We don’t have to attack anyone for their religious beliefs. But we do have to talk about it.
If this were not about gay marriage, but was about any other religious difference of opinion, this would be called what it so clearly is: discrimination on the basis of religious belief. We have laws at every level of government which say that discrimination on the basis of religious belief, yours or mine, is wrong and has no place in secular, pluralistic society. Why is this different? I’m certainly old enough to remember “exclusive” country clubs and neighborhoods. But if Prop. 8-1/2 said that Jews could be discriminated against because they do not share majority Christian belief, it would be thrown out by the courts without a moment’s hesitation, though before WWII such practices were considered acceptable. But because this is about this very ancient prejudice against gay people, often supported by religious belief but occasionally admitted for what it is, and about sex in our deeply puritanical culture, somehow, we are not allowed to point this out. Why is this 800 pound gorilla in the living room apparently invisible? What do we have to lose by calling out bigotry for what it is? What do we have to gain by pretending that it is not? How is the continuation of the closet served by not talking about bigotry and prejudice?
Again, our silence means consent. Or, as my Act Up brothers would say, Silence=Death.”
James
January 6th, 2010
The flaw in the thinking regarding attacking Prop 8 on the basis of the motivation of the campaign leaders is that it is the vote of the general citizenry that passed the proposition.
The will of the majority of the voters in California passed the ammendment not the motivation of a few campaign workers. All the workers did was to give the majority a chance to voice their opinions rather than have a few people involved in a court decision choose for them, which was the case before the prop 8 vote.
Since no one really knows anyone else’s motives, condeming a larger groups actions for the presumed motives of a smaller group is both unfair and prejudicial. Overturning prop 8 because some people think some other people are only acting on prejudice is tantamount to allowing another minority’s prejudice to overrule the majority’s decision.
This is a case of a few deciding for themselves that they know the hearts and minds of the many and condeming the many for the thoughts the few judge the many to hold. It is also a case of asking a few to judge for the many what choices the many may be free to make.
The vote result was not only 52.2% over 47.8% it was also 42 counties over 19 counties. Rural California had an opportunity to vote their opinions instead of having urbanites decide it for them.
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