Box Turtle Bulletin

Perry appeal: Ninth Circuit asks CA Supreme Court about standing

Before the Ninth Circuit Court of Appeals can determine whether to uphold or overturn Judge Walker’s decision invalidating Proposition 8, it must determine whether anyone has standing to appeal the judge’s ruling. And rather than make that determination itself, the Ninth Circuit is now requesting that the California Supreme Court rule on whether state law allows the sponsors of a proposition to step in whenever the State of California declines to appeal a ruling.

Specifically, they ask:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

UPDATE: Here is Article II, Section 8:

CALIFORNIA CONSTITUTION
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL

SEC. 8. (a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.

(b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election.

(c) The Secretary of State shall then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election. The Governor may call a special statewide election for the measure.

(d) An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.

(e) An initiative measure may not include or exclude any political subdivision of the State from the application or effect of its provisions based upon approval or disapproval of the initiative measure, or based upon the casting of a specified percentage of votes in favor of the measure, by the electors of that political subdivision.

(f) An initiative measure may not contain alternative or cumulative provisions wherein one or more of those provisions would become law depending upon the casting of a specified percentage of votes for or against the measure.

The question is whether this language includes any authority on the part of the Proponents to replace the State as a defendant or whether this language assigns the Proponents with a particularized interest.

Additional thoughts on Prop 8 appeal

Last night I had the opportunity to watch the full debate in detail and to digest what I saw. This has given me a few additional thoughts about the way the arguments went. These were my impressions:

The judges would like to address the issue. They are reluctant to let the Governor and Attorney General nullify the proposition simply by refusing to repeal; it seems too much like an illegal veto. On the other hand, they are finding it difficult to identify any parties with standing that have any interest in appealing Judge Walker’s decision.

The Proponents pretty much are, by legal precedent, unable to have standing. The Arizonans case is just too similar and the US Supreme Court determined that there was no standing for the initiative’s proponents. Interestingly, two of the three justices were on that case and they were “on the wrong side” in granting the Arizonans proponents standing before being reversed.

But there was some discussion about how ‘filling in for state officials who won’t appeal’ may be different from state to state. There may be enough question to allow for some small measure of uncertainty.

The judges were also extremely hostile to Isabel Vargas’ claim of standing. Vargas, the deputy clerk of Imperial County, is a bit player in the drama, so insignificant that most news stories don’t even include her name. And clearly the judges thought that

The first question asked in the hearing was, “Where is Dolores Provencio?”

Provencio, the Imperial County Clerk, has not participated in the case at all, not even providing a deposition. Vargas’ attorney was left arguing that Provencio wasn’t opposed to Vargas’ action, to which the judge responded, “Well, we really don’t know that, do we?”

But, on the other hand, Boies presented an argument that seemed to be both technical and preposterous. He claimed that the clerk of Imperial County was not bound by Judge Walker’s order because he only bound the named defendants: the Governor, Attorney General, Recorder, and clerks of Alameda and Los Angeles counties.

Under questioning, he went so far as to say that clerks of other counties could deny same-sex marriages until such time as the Attorney General went to state court to compel the other counties to observe Judge Walker’s ruling. This seemed to be an argument that was rather contrived and, frankly, convinced no one, especially not Judge Reinhardt.

Based on my impression, standing will be determined by two factors: 1) the panel may inquire with the CA Supreme Court whether CA law allows Proponents, or 2) the judges may convince themselves that Vargas was in conflict between the constitution and the order and thereby harmed. They will rally have to stretch to get there, but may do so in order to rule on the case. Smith may be the least receptive to Vargas’ appeal for standing, as he sees her role as purely ministerial.

I think that the Proponents erred big-time back in January when they brought Vargas rather than a real clerk. I think that the clerk of a county may well have been given standing.

Interestingly, none of the judges were impressed with the claims of the Proponents. Hawkins, at one point, mocked Accidental Pregnancy Theory and he simply would not let go of the comparisons between Proposition 8 and the Romer case. Reinhardt seemed completely unconvinced with anything that Cooper had to say and interrupted him continuously.

The judges, Reinhardt and Hawkins in particular, seemed to agree with Olson that there’s quite a difference between refusing to grant a right and taking it away once it has been enjoyed. This seems to be supported by some direct language from the SCOTUS and intuitively feels right.

Smith seemed to be in a bit of a bind. It appeared that he was searching – fishing, almost – for a rational basis on which to hang his opinion. And he couldn’t get one out of Cooper. So he finally made one up himself: that the state thought that children were best raised by their father and mother. He got a bit sharp when Olson pointed out that this contradicted the evidence presented in court.

Olson’s strongest point was when he noted that the case isn’t about state’s rights or the rights of voters. The 14th Amendment protects the rights of individuals. And if a class was to be established against which harmful discrimination was to be enacted, such discrimination couldn’t be justified by illogical reasons that fall from the sky. The reason really had to be strong enough, rational enough, and closely enough directed towards “remedying the ill” that it was worth the damage it inflicted.

I think that we won the argument. I don’t know if we won the case. If I were to bet on the result, I’d find it likely that Judge Walker’s decision will be upheld by this panel, and possibly with a 3-0 vote.

Prop 8 Appeal

Today the Ninth Circuit Court of Appeals heard arguments as to the constitutionality of Proposition 8 and arguments as to whether there is anyone with standing to defend the proposition. We do not know the eventual outcome, but here are my general impressions.

Standing

When the Proponents for Proposition 8 filed their appeal, they seemed to admit that their claim of standing was shaky. And they put a lot of reliance on the ability of the deputy clerk of Imperial County to provide standing for them.

Because the Imperial Intervenors should have been permitted to intervene, and because as intervening defendants bound by the district court’s judgment they would have standing to appeal, this Court need not reach the question of Proponents’ standing at this time.

It appeared that their entire hopes of arguing the constitutionality of Proposition 8 lay in, get this, the deputy clerk of one county. At the time I wondered at the wisdom of arguing that the deputy clerk was injured by the case; surely her job is not to make determinations as to whether anyone can marry, but rather to follow the instructions of those who do have authority, in this case either the State Registrar or perhaps even the County Clerk. And this was a point that was not lost on the appellate judges.

Adding to the difficulties for the County, Robert Tyler, the attorney arguing on their behalf was inept. At one point the judges told him that if he didn’t know the answer to a question that he should just say so.

The case for standing for the Proponents was given by Charles Cooper, who based his arguments on Karcher v. May, a New Jersey case which predated Arizonans for Official English. Arizonans was the closest in case law and it seems to suggest that Proponents do not have standing.

The law wasn’t really there for them, so it seems that the supporters of Proposition 8 are arguing mostly that it just isn’t fair for the Governor and Attorney General to “nullify” the vote of the people by refusing to appeal the Trial Judge’s decision, a plea that seems to have found sympathy with Judge Smith.

Constitutionality

Coopers arguments that the state has a rational cause to discriminate against same-sex couples was not received with open arms. All three judges seemed aware that discrimination was occurring, was intentional, and that a basis for the discrimination required some ‘splaining. It remains to be seen if Cooper was adequately credible.

Judge Hawkins questioned whether Prop 8 would not be subjected to the same standard as Colorado’s Amendment 2 which was thrown out. Cooper argued that Amendment 2 was too broad and sweeping where Prop 8 only takes away one right. Hawkins seemed unconvinced that constitutionality was determined by the number of rights that were denied.

And the ol’ “responsible procreation” argument didn’t really stand up well. Judge Reinhardt noted that Cooper’s arguments were stronger for banning divorce than for banning same-sex marriage.

And when it was noted that California did nothing whatsoever in the realm of “encouraging responsible procreation” by discouraging civil unions, Cooper was left arguing that it’s only the word “marriage” that has to be protected to encourage responsible procreation of heterosexuals that may accidentally become pregnant if they have sex while not married. “To redefine the word is to change the institution.”

The soul of Cooper’s argument is to ignore the impact that the word used to describe the recognition given to same-sex couples will have on those same-sex couples, and to instead insist that it will most seriously impact heterosexuals who are not in committed relationships.

That is, on its face, rather difficult to treat credibly.

All in all, marriage equality held its own in the courtroom today. Animus did not fare so well. It’s impossible to predict such things, but I think that today gave us much to be hopeful for.

Prop 8 appeal today

At 10:00 am (Pacific Time), three judges of the Ninth Circuit Court of Appeals will hear oral argument about whether Proposition 8 is a violation of the equal protections and due process clauses of the US Constitution. But first, they will hear argument about whether there is anyone who is legally entitled to defend Proposition 8, now that the Governor and Attorney General have chosen not to appeal Judge Walker’s decision.

You can follow the case on CSPAN.

Courage Campaign is liveblogging. I’ll provide my thoughts and opinions later.

Couple recognition, state by state

Upon the governor’s signature, Illinois will become the second state that is currently offering civil unions to same-sex couples. The status of the various recognition mechanisms is as follows:

Marriage on the same terms as heterosexual marriage – 5.1% of US Population:

Massachusetts
Connecticut
Iowa
Vermont
New Hampshire
District of Columbia

Civil Unions – a rights except the name – 7.1% of US Population:

New Jersey
Illinois

Domestic Partnerships will all the rights except the name – 16.3% of US Population

California
Oregon
Washington
Nevada

Limited recognition of same-sex couples – 6.2% of US Population

Hawaii – Reciprocal Benefits
Colorado – Reciprocal Benefits
Wisconsin – Domestic Partnerships
Maine – Domestic Partnerships
Maryland – Domestic Partnerships

In addition, the states of Maryland and New York (6.4% of US Population) will give full recognition to same-sex marriages conducted where legal. Rhode Island may possibly do so also (it’s a bit uncertain) and offers unregistered Domestic Partnerships with a scant handful of rights.

Also, there are dozens of cities offer some form of recognition and protection for same-sex couples.

Not a good night for NOM

The Republicans picked up significant gains in the midterm election, gaining control of the House of Representatives, and bringing the Senate to within a few votes. This is not good news for the prospect of having issues of inequality addressed in the next two years.

However, this change in the direction of power was not a mandate for social conservatives. Indeed, it was those Republicans who made the most of their socially conservative credentials who fared least well. Christine O’Donnell lost miserably, as did Tom Tancredo, while Tea Party and Republican candidates that minimized or refused to discuss their positions on social issues attracted support.

But no indicator seems to have been more consistent this election than the extent to which a candidate was supported by the National Organization for Marriage. If you were a Senatorial or Gubernatorial candidate whom NOM supported, it seemed to be the kiss of death.

In New Hampshire, NOM has ran an anti-Lynch campaign for two years, and has ratcheted up the anti-Lynch television ads going into the election. Lynch just won his fourth consecutive election, a feat not accomplished for the past 200 years.

In California, NOM sponsored a bus tour for senate candidate Carly Fiorina, encouraging Latino voters to “vota tus valores“. Not only have the networks called this election for Barbara Boxer, Latinos found Fiorina’s valores not to be their valores by two-thirds.

NOM sued the state of New York in hopes of running anonymous ads in favor of Carl Paladino. Paladino’s homophobia sunk his campaign and he ended up pulling but 35% of the vote leaving Cuomo – a marriage support – one of the strongest winners of the night.

In Minnesota, NOM ran radio ads for Tom Emmer claiming that “Mark Dayton and Tom Horner want to impose gay marriage with no vote of the people.” Although Minnesota has not been called, Dayton is 7% ahead of Emmer with 85% of the vote counted.

This kiss of death is consistent with results of NOM’s electioneering in the District of Columbia during their primary. It would seem that using gay couples as a fear tactic seems to have peaked and dissipated.

This is not to say that NOM will not have any causes for celebration. The efforts to reject three supreme court justices in Iowa who were part of the unanimous decision to recognize gay Iowans as protected by the state Constitution, appears to have succeeded. Each appears to have only 46-47% support. Expect NOM to claim this as a clear mandate that the “people of Iowa have spoken” and that they don’t like their gay neighbors so much. NOM was not, however, successful in their effort to oust the Polk County judge who first found for marriage equality.

And NOM’s very own Andy Pugno – the attorney for the Prop 8 campaign – is running for state assembly in California’s 5th Assembly district. At present the vote is too close to call.

All in all, while NOM’s vindictive smearing of the Iowa justices may have proven effective (and may well prove to bring a chilling effect to future legal battles), we can say that they were big losers tonight.

UPDATE: 10:28 pm PST. LA Times:

With more than half the votes counted, Democrat Richard Pan holds a 51% to 45% lead over Republican Andy Pugno in a seat currently held by Republicans.

Not only may Pugno’s repugnant attack on gay couples have cost him the 5th Assembly seat, it may actually move the Democrats in CA closer to a supermajority. NOM must feel so proud.

Middle School Student Takes a Stand Against Bullying

An NBC affiliate in California covered this story about 7th grader Marco Melgoza, a victim of anti-gay bullying at his middle school in Madera, CA. Despite efforts made by school administrators to curb the bullying, Marco reports that it is still happening. It’s amazing to see youth standing up for themselves with the support of their parents.

Seth Walsh’s “Daily Gauntlet”

The mother of Seth Walsh, the Bakersfield-area teen who committed suicide in response to a daily dose of bullying in school, quietly mourns the loss of her son. She is refusing to speak to the public, as are Seth’s friends. But Seth’s grandparents have opened up, and the world gets to see just a bit of the incredible kid that we lost:

Judy and Jim still laugh over his tastes. He colored his hair blond on occasion and wore it with a long swoop that partly covered his eyes. Judy took him shopping once, and he went to the girl’s department to find pants with tapered legs. He added a vest, and a few months later she noticed the style everywhere.

…He was a gentle child, they say, who preferred to “relocate bugs” rather than kill them, who made sure his younger brother got his share of Easter eggs and who once apologized to a bed of flowers when he picked one and placed it on the grave of the family dog.

But the Walshes realize that Seth’s gentleness made him a target, and they recall listening to Wendy (Seth’s mother) as she shared her worries about Seth and what he had to endure.

The teasing and bullying began in fourth grade. At first it was because he was different — more comfortable with girls, not interested in sports, neither aggressive nor assertive — and then it was because he thought he was gay. Once classmates found out and the news spread, the abuse became more focused and cruel.

When Judy learned from her daughter that Seth was gay, she became concerned for the challenges that lay ahead of her grandson.

“Life is hard enough,” she says, “but this makes it harder.”

“Especially in a small town,” Jim says.

The Los Angeles Times’ profile is a must-read.

Bakersfield-Area Teen Dies After Suicide Attempt; No Charges Will Be Filed

Another day, another gay teen is dead:

Seth Walsh, the Tehachapi 13-year-old who hanged himself from a tree in his back yard after years of being bullied, died Tuesday afternoon after nine days on life support.

Tehachapi police investigators interviewed some of the young people who taunted Seth the day he hanged himself and determined despite the tragic outcome of their ridicule, their actions do not constitute a crime.

“Several of the kids that we talked to broke down into tears,” Jeff Kermode, Tehachapi Police Chief, said. “They had never expected an outcome such as this.”

Seth had been picked on for years because he was gay, but fellow classmates said that the staff at Jacobsen Middle School offered Seth no help or protection. People run red lights without expecting anyone to die in a horrific traffic accident, but they are charged with manslaughter or negligent homicide. Red lights were flashing at Tehachapi just as brightly and a child is dead because of the direct actions of his peers and the negligence of school officials. But they get a pass because, well heck, nobody meant nuttin’ by it. It was all just harmless fun. It just goes to show how seriously too many school administrators take the lives of gay students in 2010.

If you thought NOM’s tour yesterday was bad…

The National Organization for Marriage seems to be running into a little problem getting people to show up for their “Vota Tus Valores” tour. Yesterday was kinda discouraging with a total of 17 folks at five stops (15 were all from one stop) but today was the kind of day that makes California’s anti-gay Latino Republicans sad at heart.

Day 2, Stop 1: Sacramento

Our state’s capital didn’t exactly swarm out to greet NOM. (Courage Campaign)

Already progressive supporters are beginning to out-organize the tour. The count in Sacramento was 9 to 4.

Day 2, Stop 2: Placerville

The following picture includes all of the ralliers at this stop:

NOM didn’t even get off the bus.

Day 2, Stop 3: Yuba City

The tour website said they would be at the Gauche Aquatic Center at 1:15 pm. But they didn’t show up.

Courage Campaign asked the Aquatic Center and it turns out NOM never followed through with a request to use the parking lot. Fortunately CC was ran into NOM & crew where they had stopped for lunch and now are stuck following the bus.

Day 2, Stop 4: Colusa

The bus was to be there at 2:30, but as of 2:40 they hadn’t left Yuba City (CC will update tonight) so perhaps Colusa is another no-show. Why not? It’s not like anyone is there waiting for them.

Watchmen On the Walls to Gather in Sacramento and Washington State

A Sacramento-area reader tipped us to this flier advertising a Watchmen On the Walls conference that is scheduled for Oct 1-3 at the New Hope Christian fellowship near Sacramento. The conference will feature Latvian pastor Alexey Ledyaev, who cofounded the Watchmen with Seattle-based pastor Ken Hutcherson, Holocaust revisionist Scott Lively, and Sacramento resident and Russian language media owner Vlad Kusakin. The Watchmen On the Walls has been identified by the Southern Poverty Law Center as one of only about a dozen anti-gay hate groups.

Also appearing on the bill are Craig Carre of Gate Keepers and Alex Rykhlyuk of the Sacramento-based church Ecclesia, which mainly caters to the substantial Russian Evangelical immigrant community in Sacramento. The Russian Evangelical immigrant community has been among the most virulent anti-gay communities in California, and, along with Russian immigrants in the Seattle area, has provided leaders who have been an integral part of Watchmen On the Walls.

Alexeyev’s Riga-based megachurch, New Generation, was implicated of a violent confrontation during a Riga Pride event in 2006 when a churchmember was convicted of throwing feces at participants. Alexeyev and twenty other churchmembers were in the courtroom in support of the church member when he was convicted.

The conference is mentioned in the Watchmen’s official web site, but only in the Russian language version. That brief article mentions the Sacramento conference along with another one for Washington State in “early October.” No further details are given.

CA Supremes: Gov and AG need not appeal Perry

After the Pacific Justice Institute was laughed out of court for claiming that Governor Schwarzenegger and Attorney General Brown should be forced to appeal the decision in Perry v. Schwarzenegger, PJI appealed the 3rd Appeals court’s dismissal to the California Supreme Court.

And they got all excited when the CA Supremes asked Schwarzenegger and Brown to weigh in on the appeal. (Karen Ocamb)

The California Supreme Court has ordered the Attorney General and the Governor to respond by 9 am this morning explaining why they have not filed this appeal. Then the Pacific Justice Institute has just three hours to respond by noon today.

“We are pleased that the judicial branch is at least considering forcing the executive branch to do its job,” said Karen England, Executive Director of Capitol Resource Institute.

So the Governator and the Attorney General sent a letter to the court reminding them that they have discretion to appeal or not appeal and that this discretion is part of the constitutionally protected separation of powers. (And while it was expected and understood that neither wished to appeal, this is where the Governor went on record stating that he would not do so.)

And then the CA Supreme Court yawned and “denied review Wednesday without comment.”

So now it is official. Neither the Governor nor the Attorney General will be appealing the reversal of Proposition 8. But we will probably have to wait until the first week of December to find out whether the Ninth Circuit Court of Appeals will find that the appellants (the organization that sponsored Proposition 8) have any standing to appeal the case without them.

California no longer looking for “causes and cures of homosexuality”

After decades of gerrymandering, California’s legislature consists pretty much only of the far left and the far right. So it is not often that you get agreement on much of anything; and it’s very rare indeed that you get agreement on a gay related issue.

But Republicans and Democrats came together on an issue that, while obsolete and amusing, does tell us one important thing. I’ll get to that in a moment.

In 1950, the legislature passed the following law:

8050. The State Department of Mental Health, acting through the superintendent of the Langley Porter Clinic, shall plan, conduct, and cause to be conducted scientific research into the causes and cures of sexual deviation, including deviations conducive to sex crimes against children, and the causes and cures of homosexuality, and into methods of identifying potential sex offenders.

And as of this week, the legislature has changed that language to

8050. The State Department of Mental Health shall plan, conduct, and cause to be conducted scientific research into sex crimes against children and into methods of identifying those who commit sexual offenses.

Now there is no reason to believe that California, either through the Langley Porter Clinic or anything else, has at any point in the past several decades attempted to conduct any scientific research into the causes and cures of homosexuality. But it’s nice to know that they officially have given up.

But more importantly, this bill passed unanimously in the Senate (where it was sponsored by the newly reformed Roy Ashburn) and nearly unanimously in the State Assembly (except for this guy). And that is big news.

In general, California’s Republican legislators just vote “no” on anything that gay folks want. No real reason, often, just a desire to say “no”. So it’s kind of surprising that they said “yes” this time and, for me, it’s interesting and important that the issue on which they finally said “yeah, that’s too wacky even for us” is ex-gay therapy.

Meg Whitman Would Defend Prop 8 If Elected Governor

Former eBay CEO Meg Whitman, who is running for the GOP nomination for California Governor, announced that if she were elected governor, she would defend Prop 8 in Federal Court:

Whitman’s first definitive statements on how she would handle the issue as governor came hours before she spoke at the opening of the three-day state GOP convention in San Diego, where she is facing open hostility from conservatives over her positions on illegal immigration and climate change.

“I think the governor of California and the attorney general today have to defend the Constitution and have to enable the judicial process to go along … and an appeal to go through,” Whitman said. “So if I was governor, I would give that ruling standing to be able to appeal to the circuit court.”

The two named defendants, California governor Arnold Schwarzenegger and Attorney General Jerry Brown, have refused to defend the constitutionality of Prop 8 in Federal District Court. U.S. District Judge Vaughn Walker then invited the Alliance Defense Fund to defend Prop 8 as intervener. Following Judge Walker’s ruling declaring Prop 8 unconstitutional, it is unclear whether ADF has standing to appeal the case to the Ninth Circuit Court. A hearing to decide the issue is scheduled for December 6. The same hearing will also hear arguments on the appeal itself.

Because both the issue of standing and the appeal will be heard before the next governor takes the oath of office in January 3, it is unclear whether the new governor or attorney general could join the case at that later date:

UC Hastings College of the Law professor Rory Little said Whitman’s ability to defend the proposition would hinge on several factors – the biggest of which, of course, is whether she becomes governor.

It would also depend on whether the 9th Circuit decides the standing issue before January 6 and how the court decides.

“There are a lot of ifs,” Little said. “If the 9th Circuit hasn’t decided the matter by December, she could attempt to file a brief to say, ‘Now, the state of California enters the case.’

The state GOP is holding its annual part convention this year at the Manchester Grand Hyatt, which is subject to a boycott by LGBT advocacy groups over owner Doug Manchester’s $125,000 donation to the pro-Prop 8 campaign.

California marriages go civil

Yesterday the California state assembly approved SB 906, which will make the following changes to California’s marriage law:

300. (a) Marriage Civil marriage is a personal relation arising out of a civil contract between a man and a woman, established pursuant to a State of California marriage license issued by the county clerk, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute civil marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).

and

400. Marriage Civil marriage may be solemnized by any of the following who is of the age of 18 years or older:
(a) A priest, minister, rabbi, or authorized person of any religious denomination. No person authorized by this subdivision, or his or her religious denomination, shall be required to solemnize a marriage that is contrary to the tenets of his, her, or its faith. Any refusal to solemnize a marriage under this subdivision shall not affect the tax exempt status of any entity.

The bill goes on to revise the rest of the law by replacing reference to “marriage” with “civil marriage.”

Officially this bill does nothing, but the symbolism is interesting. It says that the State of California isn’t interested in how your church defines marriage, only in the civil aspect. Further, it assures churches and clergy that they need not conduct any marriages that they don’t find appropriate to their faith, even though such assurances are unnecessary due to the US Constitution’s religious protections.

And the wing-nuts are furious.

You’d think that ensuring and emphasizing protection for clergy would be welcomed. But wing-nuts don’t want such protection; it distracts from their deceptive talking points. They want to be able to scare people into thinking that their church will be forced to conduct same-sex marriages and have discovered that most voters don’t really understand that the First Amendment already protects them. This revision would make it harder to lie.

As the Ruth Institute, the National Organization for Marriage’s college outreach, laments

The real intent behind this bill is to make it appear as though it eliminates one of the main objections to same-sex marriage, that it jeopardizes religious freedom, in what gay activists hope will be an effort to get gay marriage on the ballot in California in 2012. They think that doing this will make gay marriage seem more acceptable to the voters of California and make it easier for such an amendment to pass. The idea is that if this bill passes, they can claim that allowing same-sex marriage won’t have any affect on religious freedom.

And anything that makes it more difficult for NOM and their allies to deceive voters is a threat to their power. Going into a potential 2012 constitutional amendment to reverse Proposition 8 (assuming that this isn’t all resolved through Perry v. Schwarzenegger by then), they didn’t want to have to defend “civil marriage” or lose one of their biggest scare points.

The bill passed with support of virtually all Democrats along with two Republicans. It had previously passed the State Senate but will return for a concurrence vote before going to the governor for signature.