Box Turtle Bulletin

Are Lawsuits The Best Way To Go?

I welcomed conservative Attorney Theodore Olson’s eagerness to try to overturn Prop 8 in federal court. But when I wrote that, I only addressed the fact that even conservatives are coming around to the idea that discrimination is fundamentally un-American.

What I didn’t address was the wisdom of trying to bring about change in the courts, especially when this particular tactic has almost no chance for success. I don’t think it’s wise to proceed in the courts. Eight prominent LGBT organizations agree:

In response to the California Supreme Court decision allowing Prop 8 to stand, four LGBT legal organizations and five other leading national LGBT groups are reminding the LGBT community that ill-timed lawsuits could set the fight for marriage back. The groups released a new publication, “Why the ballot box and not the courts should be the next step on marriage in California” (PDF: 70KB/3 pages). This publication discourages people from bringing premature lawsuits based on the federal Constitution because, without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage. The groups also revised “Make Change, Not Lawsuits” (PDF: 105KB/7 pages). which was released after the California Supreme Court decision ending the ban on marriage for same-sex couples in California. This publication encourages couples who have legally married to ask friends, neighbors and institutions to honor their marriages, but discourages people from bringing lawsuits. [Hyperlinks added]

I tend to agree. The problem though is this: the LGBT movement has never been a monolith. Unlike the caricature painted by our opponents, there really has never been a behind-the-scenes entity to dictate a coordinated strategy. Advancement has been a messy process, at the ballot box, in the legislatures and in the courts.

But the whole reason that we have courts is they are the ones charged with dispensing justice for those with legitimate grievances. And when someone has a legitimate grievance, it’s hard to argue that they should not exercise their constitutional right to their day in court. This true whether that grievance is against negligent employer operating an unsafe work environment, a drunk driver whose recklessness resulted in the death of a loved one, or a state with discriminatory laws.

But I do think that the LGBT advocacy groups’ advice is what we need to heed now (PDF: 70KB/3 pages):

Rather than filing premature lawsuits, we need to talk to our friends, family and neighbors, and help them understand why denial of the freedom to marry is wrong. We need to build a vigorous, aggressive campaign to overturn Prop 8 and restore the freedom to marry in California. This is the moment to convince California and America that we should have the freedom to marry.

I hope Mr. Olson will consider deploying his considerable legal talents to help us win in other ways.

Phyllis Lyon: “It Will Be OK”

LGBT civil rights pioneer Phyllis Lyon, along with her partner Del Martin, helped to found the Daughters of Bilitis in San Francisco clear back in 1955. By then, Phyllis and Del had already been together for five years. Their concerns at that time were much simpler than marriage. People were regularly getting fired and thrown out of their homes for being gay. Besides, marriage was just not an option — not even something to fantasize about, as far as they were concerned.

But Phyllis and Del made history by becoming the first same-sex couple to be married in the state of California. They were first twice — once when Gavin Newsom began issuing licenses in 2004, and again for keeps after the California State Supreme Court ruled for same-sex marriage in 2008. Del passed away in August, a married woman.

Writing in the Los Angeles Times, Phyllis expressed her disappointment over Prop 8, but she knows that history is on our side:

I’m optimistic about the future. Look at all the states that have now done this. Boom. Boom. Boom. Boom. They may not all last. But it’s going to be all right. It may not be while I’m alive, but eventually it will work out that if two people want to get married, they can get married and it won’t matter to whom. We went through this before with people of color. It will be OK.

I share her optimism. She knows as well as anyone how far we’ve come. As I said yesterday, it’s time we took the long view because this has been long struggle. There will be setbacks, but there will be more victories. No one could have imagined ten hears ago that we’d where we are today. Prop 22, which limited marriage to opposite-sex couples in California, passed with a margin of 23% in 2000. Eight years later, Prop 8 passed with a margin of just over 4%.

Prop 8 is a huge disappointment today, and we are all justifiably angry that our rights can be put to a popular vote. No one else has had their rights stripped at the ballot box in the history of this republic. But there will be a time when we will look back on Prop 8 as a blip. Just remember how far we’ve come, and how close we are to achieving equality. And look at where we have equality today in places we never dreamed possible just a yeara ago, let alone nine years ago when Prop 22 passed by a landslide. It may not feel like it today, but we really are getting there. Take heart.

A Narrow and Limited Exception

From the decision to let Prop 8 stand (pdf):

Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple\’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

Or, in other words, “What’s the problem? It’s all the same water. Who cares what fountain it comes from?”

Those who object to my comparison of separate recognition for gay couples to a symbol of racial inqualities in our Nation’s history may wish to heed the eloquence warning of Justice Moreno’s dissent:

The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. I therefore dissent.

As civil rights hero John Lewis said in 2003,

I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation. I’ve heard the reasons for opposing civil marriage for same-sex couples. Cut through the distractions, and they stink of the same fear, hatred, and intolerance I have known in racism and in bigotry.

Some say let’s choose another route and give gay folks some legal rights but call it something other than marriage. We have been down that road before in this country. Separate is not equal. The rights to liberty and happiness belong to each of us and on the same terms, without regard to either skin color or sexual orientation.

The problem is that there is no such thing as a “narrow and limited exception” to equality. Equality that has exceptions is not equality at all. And narrow and limited exceptions for one in turn justify narrow and limited exceptions for the next minority that falls from favor.

Another Wacky Proposal About Marriage

A state has an obligation to protect the interests of its citizens. And California has long determined that bigamy is contrary to the state’s interest.

California has a need to ban a current type of marriage that is resulting in bigamy: eternal marriages. Those marriages that are eternal and extend beyond this life into the next leave widows and widowers that remarry in a state of bigamy. This should be stopped.

Therefore, the constitution should be amended so as to make immediately invalid any marriage based on the belief that such marriage would be eternal and any church, institution, or religious body that purports to offer eternal marriage should be “narrowly” excluded from the equal protections provided by the California State Constitution.

That Mormons are the only church to offer eternal marriage is purely coincidental. We are not anti-Mormon-marriage. We simply support the way marriage has been defined for 5,000 years: marriage of living people on earth until death do us part.

All we need to make this important protection of traditional marriage and defend our cherished institution from radical revision and bigamy is the signature of 8% of voters in the last gubernatorial election (695,000) and a majority vote of the people.

Anyone want to start collecting signatures?

How Full Is Your Glass?

The California Supreme Court gave us a half-and-half opinion today concerning same-sex marriage in that state. They upheld Proposition 8 as a valid state constitutional amendment, while also holding that the proposition’s passage does not retroactively invalidate the approximately 18,000 same-sex marriage that were solemnized last year. While it’s small consolation, it’s not nothing — especially to those who are married and had a very personal stake in the decision.

Given the tremendous gains we’ve seen in Iowa and the Northeast, this California setback is sobering if not unexpected. But we must remember that the advancement of civil rights for any marginalized group has never been a smooth progression. It has always been a history of fits and starts, advances and setbacks, defeats and victories. Ours has been no different.

So if you might be discouraged, I would encourage you to look at where we are today and compare it to where we started ten years ago. And ask yourself this: Where do you think we will be ten years from now? Just imagining that has me more energized than ever before.

California Court Upholds Prop 8

As most in our community expected, the Supreme Court of the State of California has upheld the constitutionality of Proposition 8, the voter initiative that excluded gay and lesbian couples from the equal protections promised in the state Constitution. Same-sex marriages will continue to be disallowed.

Tonight we protest.

Tomorrow we start on the long process of making our case before the people of California and convincing them that equality under the law is worth upholding for everyone, including gay couples.

We will get another initiative on the ballot to reverse the declaration of discrimination that is Proposition 8. And we will win; if not in 2010 then in 2012. We have the advantage of a most moral and judicious position. And time is on our side.

UPDATE: It seems that the 18,000 marriages will remain intact.

The court’s website is unable to handle capacity and so far I’ve not heard from anyone who has seen the opinion. The LA Times is reporting a 6-1 split on the constitutionality of the proposition with only Justice Moreno voting to overturn it.

UPDATE 2: The LA Times reminds us:

Even with the court upholding Proposition 8, a key portion of the court’s May 15, 2008, decision remains intact. Sexual orientation will continue to receive the strongest constitutional protection possible when California courts consider cases of alleged discrimination. The California Supreme Court is the only state high court in the nation to have elevated sexual orientation to the status of race and gender in weighing discrimination claims.

Taken literally, this would then mean that an amendment to the California Constitution to exclude citizens from certain rights based solely on their race would also be constitutional on a state level.

Obama To Be In Los Angeles Day After Decision Day

President Barack Obama will be in Los Angeles on Wednesday, which will be the day immediately following Decision Day. Do you think he can make it through the entire visit without mentioning Prop 8?

[Hat tip: Michael Petrelis]

California Supreme Court To Issue Prop 8 Ruling Tuesday

The California Supreme Court has just posted a notice on its web site announcing that they will issue their ruling on the Prop 8 case at 10:00 a.m. PST on Tuesday, May 26. The court was asked to rule whether Proposition 8, which was passed as a Constitutional amendment, went too far and should have been handled as a Constitutional revision, which would have required a much more extensive and difficult process.

Day of Decision has more details on whether we will be protesting or celebrating.

CA Supremes Will Announce Prop 8 Decision on Tuesday

The website of the California State Supreme Court has the following announcement:

Forthcoming Opinion Filings
Date Posted Filename Description
May 22 2009 SF052609
Supreme Court filing for Tuesday, May 26, 2009

Case SF052609 (pdf) is:

STRAUSS et al. v. HORTON (HOLLINGSWORTH et al, Interveners) S168047
TYLER et al. v. STATE OF CALIFORNIA et al. (HOLLINGSWORTH et al, Interveners) S168066
CITY AND COUNTY OF SAN FRANCISCO et al. v. HORTON (HOLLINGSWORTH et al. , Interveners) S168078
Argued in San Francisco 3-05-09

The court issued an order to show cause in Strauss, Tyler, and City and County of San Francisco directing the parties to brief and argue the following issues: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const., art. XVIII, §§ 1–4.) (2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

Opinions in the above cases will be filed on: Tuesday, May 26, 2009 at 10:00 a.m.

Will CA Supreme Court Announce Decision on Prop 8 Tomorrow?

Rumor is going around that the San Francisco Police Department has been warned to be prepared tomorrow for public response to the California Supreme Court’s decision on the constitutionality of Proposition 8. However, the Court’s website currently says:

Forthcoming Opinion Filings

There is no pending notice of forthcoming opinion filings. When opinions are expected to file, notices are generally posted the day before. Opinions are normally filed Mondays and Thursdays at 10:00 a.m.

It is rather likely that if an Opinion is to be announced tomorrow that the notice would be posted by now. And I’m not familiar with a history of the Court notifying police departments prior to posting a ruling. So it’s likely that this rumor is little more than a rumor.

However, the dates on which the court can announce the Opinion on Prop 8 are rapidly diminishing. They are:

• 5/21/09
• 5/25/09 5/26/09 (5/25 is Memorial Day)
• 5/28/09
• 6/1/09

Decisions of this magnitude tend to be given on Thursdays. So I’m speculating that the announcement will be next Thursday, May 28.

Update: The Supreme Court website has been updated to say:

Forthcoming Opinion Filings

May 20 2009 — No opinions were announced for filing on Thursday, May 21, 2009.

So it seems that tomorrow will not be the announcement date for the Court’s decision.

California Prop 8 Decision Thursday?

We’re hearing rumors. Joe.My.God says baracades have been spotted in the Castro. The Supreme Court releases decisions on Monday and Thursday. Due to the emotional stake so many people have in the decision, it stands to reason that the Court would give law enforcement advance notice of a pending decision. Are San Francisco police acting on a heads up?

Update: Equality Network is passing around an email saying they have it from “reliable sources” that the decision will come down Thursday. All speculation on what that decision would be is just that: speculation. The Court will give twenty-four hours notice of their announcement of the decision on its web site at 10:00 a.m. PST.

Regardless of the decision, good or bad, there are Day of Decision rallies planned across the country for Thursday. Please check here for details.

A Bipartisan Bill in California

California’s legislative districts were drawn years ago to guarantee election security to select politicians. Rather than reflect cities or communities, they ensure that some seats belong to Democrats and others to Republicans. The result is that the legislature tends to consist of far-left Democrats and far-right Republicans.

When it comes to votes of interest to the gay community, votes tend to be party line (or very close to it). So I’m fascinated by an email I received from Equality California telling of a recent vote:

The bill, which will require prisons to include sexual orientation and gender identity when identifying prisoners who need protection, passed by an overwhelming margin of 65 to 9. 14 of the 29 Republican members voted for the legislation and 6 members abstained from the vote.

Now I’ll admit that it seems a no-brainer that you’d want to take any factors into considerationthat would reduce prison rape, no matter what they were. But California grows a brand of homophobe that sees even the most benign of issues through the spectrum of “fighting the militant homosexual agenda”. They would say “no” to gay soup.

And these groups have a history of being loud and influential in the Republican caucus. Or until now they have. Perhaps one side-effect of the Proposition 8 campaign was the exposure of the extent to which California’s anti-gays will go.

I’m hoping (perhaps a bit unduly) that this vote is a sign of things to come. That while there are nine members of the California Assembly that would rather let prisoners be raped than to “compromise with the homosexual agenda”, at least some Republicans are starting to recognize that – even in a primary – being a raging homophobe isn’t going to be a winning position.

Anti-Gay School Board President wants “Carrie Prejean Day”

This is a week old, but I just noticed it.

Jim Gibson is a trustee of the Vista Unified School Board in Vista, the city in northern San Diego County that Carrie Prejean calls home. His wife, Cathy, is the San Diego area director for Concerned Women for America.

Gibson is delighted that one of his alumni has taken such a prominent anti-marriage position. So much so that he wants the school district to honor her.

Trustee Jim Gibson said this week he wants to make June 1 “Carrie Prejean Day” in the district. He called Prejean, a 2005 Vista High School graduate, a “good, strong role-model.”

“We’re setting her up as an example,” he said. “As far as I’m concerned, she’s a great role-model, and she’s a person who needs to be emulated.”

Gibson’s proposed proclamation calls Prejean an “exemplary student leader” who “showed integrity, leadership, dedication and high moral standards” in the Miss California and Miss USA pageants.

This is not the first time that Gibson has gotten excited about opposing same-sex marriage. He unsuccessfully tried to get the school board to endore Proposition 8.

Gibson is planning on presenting the proclamation to the board on May 14th. If it passes, perhaps the students can emulate Carrie’s high moral standards by coming to school topless.

New Hampshire Would be the Sixth What, Exactly?

New Hampshire could be the sixth gay marriage something-or-other, but finding the language to fit is not a straight-forward task. Considering the methods by which states have reached (and retreated from) marriage rights, putting them in order depends on what one is measuring.

The order in which states have granted recognition to same sex couples

1. District of Columbia 1992 (blocked by Congress until 2002)
2. Hawaii 1997
3. California 1999
4. Vermont 1999
5. Connecticut 2005
6. New Jersey 2004
7. Maine 2004
8. New Hampshire 2007
9. Washington 2007
10. Oregon 2007
11. Maryland 2008
12. Iowa 2009
13. Colorado 2009

The order in which courts have found that states must provide marriage and/or all its rights and benefits to same-sex couples:

1. Hawaii 1993/1997 (reversed by Constitutional amendment)
2. Vermont 1999
3. Massachusetts 2003
4. New Jersey 2006
5. California 2008 (perhaps reversed by Constitutional amendment)
6. Connecticut 2008
7. Iowa 2009

The order in which states provided virtually all of the same benefits as marriage

1. Vermont 1999
2. California 2003 (with subsequent minor adjustments to fix differences)
3. Massachusetts 2003
4. Connecticut 2005
5. District of Columbia 2006 (with adjustment in 2008)
6. New Jersey 2006
7. New Hampshire 2007
8. Oregon 2007
9. Washington 2009
10. Maine 2009

The order in which legal marriages were first performed

1. Massachusetts – 5/17/2004
2. Iowa – 8/31/2007 (only one)
3. California – 6/16/2008
4. Connecticut – 11/4/2008
5. Vermont – 9/1/2009 (Scheduled)
6. Maine – around 9/14/2009 (Scheduled)

The order in which continuous legal marriages began to be offered

1. Massachusetts – 5/17/2004
2. Connecticut – 11/4/2008
3. Iowa – 4/27/09
4. Vermont – 9/1/2009 (Scheduled)
5. Maine – around 9/14/2009 (Scheduled)

And should New Hampshire\’s bill be signed, it will be sixth.

Boycotted Hotelier Looking For Resolution

Last summer, San Diego hotel owner Doug Manchester donated $125,000 to the effort to pass California’s Proposition 8. Gay activists responded with a call to boycott the hotels he owns and operates. Those hotels include the the San Diego Marriott Hotel and Marina, the Grand Del Mar, Whitetail Club and Resort, and the big daddy of them all, the Manchester Grand Hyatt San Diego. Now it looks like Manchester is trying to get out from under the boycott:

His plan – which his people warned this newspaper against publishing, even after a Hyatt representative discussed it – is to give $25,000 to a national organization that promotes civil unions and domestic partnerships. Manchester also is considering offering $100,000 in hotel credit to local gay and lesbian organizations so they can use the Grand Hyatt for events such as fundraisers. The $125,000 total matches what he gave to Proposition 8. So it would be even-steven.

Is Manchester now among those who say they oppose same-sex marriage but have no objection to civil unions or domestic partnerships? If so, we’ve heard those words before. If that’s the point he’s trying to make, I don’t know of any national organization that promotes civil unions and domestic partnerships exclusively, or at the expense of marriage.

Besides, donating $125,000 now to ostensibly pro-gay causes, after his large donation previously helped to strip LGBT Californians of their rights last summer isn’t exactly “even-steven.” It might have been a legitimate “even-steven” offset during last fall’s campaign, but it’s not now after the damage has been done.

Fred Karger, whose Californians Against Hate is spearheading the boycott, says he has not been contacted by anyone associated with Manchester, and local San Diego LGBT groups haven’t heard anything about the proposed credits. I don’t see how any resolution can be achieved without dialog with representatives of the local gay community.