Box Turtle Bulletin

Judge Walker Lifts Prop 8 Stay Effective August 18

We have received word that Chief U.S Federal District Judge Vaughn Walker has lifted the stay on enforcing last week’s ruling declaring California’s Prop 8 unconstitutional. Effective 5 PM PDT on August 18, California becomes the sixth state where same-sex couples enjoy the freedom to marry.

The order reads (PDF: 40 KB/11 pages):

None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED. Doc #705. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.

It will now be up to the Ninth Circuit Court of Appeals to decide whether to issue a stay. Given that none of the defendants have any intention of appealing, it’s unlikely the Appeals Court will intervene. The Alliance Defense Fund, which intervened to defend Prop 8, is not a named defendant and it is unclear that ADF would have any standing either to ask for a stay or seek an appeal.

UPDATE: We have two threads on this order. Please continue conversation on the other thread.

California politicians weigh in on Prop 8 ruling

Unsurprisingly, the Democratic and Republican responses to Judge Walker’s rulings were different.

In the Senatorial race, Democratic incumbent Barbara Boxer released the following statement:

This historic decision is a step forward in the march toward equal rights and reflects a growing legal consensus that marriage equality is protected by the U.S. Constitution.

Carly Fiorina, the Republican nominee, is quoted by AP as disapproving of the decision.

Republican U.S. Senate candidate Carly Fiorina says she disagrees with a federal judge’s decision overturning California’s gay-marriage ban.

Fiorina says California voters spoke clearly against same-sex unions when a majority approved Proposition 8 in 2008.

In the gubernatorial race, Jerry Brown – who at Attorney General refused to defend the proposition – released the following statement:

In striking down Proposition 8, Judge Walker came to the same conclusion I did when I declined to defend it: Proposition 8 violates the equal protection guarantee of the Fourteenth Amendment of the United States Constitution by taking away the right of same-sex couples to marry, without a sufficient governmental interest.

Republican Meg Whitman’s campaing, on the other hand, released the following statement:

Meg supported Proposition 8 and believes marriage is between a man and a woman. Meg also strongly supports California’s civil union laws. Today’s ruling is the first step in a process that will continue.

Hunh? A process that will continue?

So everyone has now made their statements. But with California voters so evenly split over marriage and not one breathing fire over the decision, I think it extremely unlikely that Whitman – or even Fiorona – will make gay marriage an issue in their campaigns.

Prop 8 Rallies Planned

As Timothy mentioned yesterday afternoon, we received word that a decision in Perry v. Schwarzenegger is expected this afternoon between 1:00 and 3:00 pm (PDT). Already, Prop 8 supporters have already filed a request for stay of judgment pending appeal, in case Judge Walker strikes down Prop 8. If granted, this would prevent any marriages taking until the Court of Appeals hears the case.

Meanwhile, a large number of rallies are planned in California and across the U.S., forty so far and counting. Rex Wockner is keeping up to date with the latest additions.

Prop 8 Report: The “Danger To Children” Theme Proved Decisive

The Lesbian, Gay, Bisexual and Transgender (LGBT) Mentoring Project has just released a massive report (PDF: 13MB/511 pages, or via HTML here) which analyzes more than 10,000 pages of unreleased data from the California Prop 8 campaign. The report’s author and project founder, Dave Fleischer, concludes that many common conceptions of why the No on 8 campaign lost the November 2008 ballot measure are factually wrong. In particular, Fleischer finds that the most critical element in the Yes on 8’s victory, aside from its massive fundraising, was the No on 8 campaign’s delay in countering the false “danger to children” message ran by supporters of Prop 8.

Here are what Fleischer called the “top 10 facts and findings of the report:

1. Our base shrank: Fleischer contends that that Yes on 8 was about to peel away voters who had supported same-sex marriage just six weeks before election day. He estimates that from September 22, at least 5% of voters moved towards the anti-gay side. The largest shifts occurred among parents, white Democrats, Latinas, and voters in the greater Bay area.

2. The Yes on 8 side’s “danger to children” message was very effective, and we keep ignoring that at our peril. This matches precisely my one enduring criticism of the No on 1 campaign in Maine: They didn’t learn the lesson of California. During that 2009 campaign in Maine, I looked at the messaging from both sides and found the “no” side’s response to be weak to nonexistent, particularly where it fails to address the other side’s dishonest “danger to children message.” I got a lot of flack for that from Matt Forman, but this report vindicates my concerns. Which leads directly to the next finding:

3. Parents ran away: Fleischer notes that “Almost three-quarters of the net movement toward the ban was among parents with kids under 18 living at home” — almost 500,00 of them. He went on:

The lesson of the Yes on 8 campaign: when parents hear that their kids are in danger, even if it’s a lie some of them believe it — particularly when the lie largely goes unanswered.

This runs counter to the conventional wisdom that African-American voters cost us the election. If we had been able to hold onto more of those parts of other demographics where we lost ground during the campaign — including demographics which should have been in our pocket (white Democrats and Bay Area voters), it would have made a huge difference in the outcome.

4. Smart but too late: The most costly mistake, according to Fleischer, was the delay on the No on 8 side in answering the “danger to children.” When they finally got around to issuing an ad to confront the Yes on 8 message, the response ad was one of “two most effective moves made by No on 8” (the other being the massive fundraising surge).

5. Record breaking fundraising. No on 8 was particularly effective with online fundraising.

6. Record-breaking Field. No on 8 mobilized some 51,000 volunteers. Unfortunately the impact of the massive grassroots effort was squandered because the campaign “focused on building a list of identified supporters who were most already very likely to vote.” It seems to me a greater effort should have been expended in identifying supporters who might not vote, and identifying the movable middle that could be persuaded through one-on-one contact.

7. One-Sided Message Discipline. The Yes on 8’s messaging was consisted, clear, direct, and repetitive. The No on 8’s messaging wandered, partly because – – –

8. No on 8 Changed Horses in Midstream: A month before election day, No o n8 installed new leaders, and the new ads were very different from those approved by prior leaders. However, I think it should be noted that the response ad which finally ran in response to the “danger to children” theme in late October was brought out by the new regime. So it seems to me the problem of inconsistent messaging wasn’t necessarily the fault of the new regime, but was perhaps more a reflection of the older regime’s reluctance to take the harder-hitting message head-on.

9. Avoiding the “G” word. Yup. Gay. Look, Prop 8 was all about gay marriage. Everybody new it. Those who supported Prop 8 knew it, those who opposed it knew it, and those who were in the middle knew it. It’s not like it was some big secret that Not on 8 had to keep hidden. Everyone was already talking about it. Fleischer wrote:

Polling supported the same approach: clear arguments about LGBT people and use of the word “gay” tested less well than abstract arguments and vagueness. But the polling advice is very likely an artifact of the polling itself as well as a reflection of actual voter preferences, and is fundamentally irrelevant: voters were going to learn that Prop 8 concerned gay people whether or not No on 8 told them. Although the No on 8 executive committee resisted the pressure and insisted on the use of the word “gay” when it was operating as a decision-making body, tension between the two impulses compromised message discipline. Results included message tentativeness, gay-avoidance in the later No on 8 ads, and a “de-gayed” campaign in general. Ultimately, the only two No on 8 TV ads that had a measurable impact on voters were the only two that used the word “gay.”

10: Not so close. This is perhaps the most worrisome aspect of the outcome. Prop 8 passed by 600,000 votes. But Fleischer believes that another 400,000 thought that voting “no” was a vote against same-sex marriage, not a vote for it. “To reverse the result,” he writes, “we start out 1,000,000 votes behind. This runs counter to the belief that the election was so close that we can easily reverse the result.

Our opponents have a winning message. It’s a false message, but it wins elections every single time. Anita Bryant used the “danger to children” theme thirty-five years ago, and we are still losing battles to it today. That sad fact is, that it resonates, and we ignore it at our peril Fleschman writes:

The need to learn from history is particularly acute because the central message of the anti-LGBT side isn’t new. Our opposition keeps recycling the spurious idea that kids are in danger. For example, the anti-gay Yes on 1 campaign in Maine in 2009 used exactly the same message as the Yes on 8 campaign in 2008. Both echoed anti-gay campaigns going back at least to 1977. Yet the pro-LGBT side often fails to anticipate that the time-tested anti-gay message is coming or underestimates its effect. The No on 8 campaign was inadequately prepared when the same ugly arguments surfaced in the final thirty days before the election. The more of us on the pro-LGBT side who learn and recall history, the more likely we will be prepared the next time. Preparation will increase our chances of success.

Similarly, some of the mistakes in No on 8 recall mistakes made by pro-LGBT campaigns across the country. … Foremost among them is hoping that avoidance of the kids issue will minimize its impact. It doesn’t.

This is an incredible document, one that should be required reading for all future campaign managers wherever same-sex marriage (or any other LGBT issue) comes up on the ballot.

NOM supports Fiorina campaign to Latinos

American Principles in Action, a obscure far-right organization that seems obsessed with opposing civil equality for gay people, has created a project they’ve called Latino Partnership for Conservative Principles. They can be best described as hard-core conservative on all issues except immigration – sort of the Latino GOProud, if you will.

Their goal is to convince Latino Californians to vote Republican, focusing solely on (non-immigration related) social issues and, in particular, to drum up votes for Carly Fiorina. (From their press release)

The Latino Partnership for Conservative Principles, a national organization of conservative Hispanics, today launched a $1 million campaign in support of California Senate candidate Carly Fiorina at a press conference in downtown Los Angeles. Fiorina is running against Democratic incumbent Barbara Boxer.

why?

“Carly Fiorina, like the majority of Latinos, believes in the right-to-life, traditional marriage and in hard work and entrepreneurship,” stated Aguilar.

And who is a part?

The Latino Partnership for Conservative principles “Tus Valores” campaign is supported by the Susan B. Anthony List, a network of 280,000 Americans in all fifty states dedicated to mobilizing, advancing and representing pro-life women in politics, and by the National Organization for Marriage, a non-profit organization with a mission to protect marriage and the faith communities that sustain it.

I assume “supported by” includes financial support, but that isn’t clear.

UPDATE:

GoodAsYou is reporting that this group is even more closely tied to NOM:

This Latino Partnership for Conservative Principles coalition is an outreach of the American Principles Project, and this Fiorina effort is the work of APP’s action arm, American Principles in Action. Robert George is the founder of APP/APIA. The same Robert George who — wait for it, wait for it — CO-FOUNDED NOM! So essentially we have NOM signing on as one of two sponsors (the Susan B. Anthony List being the other) of a pro-Fiorina effort that was setup by their own founding chairman and current prominent spokesperson!

Schwarzenegger appoints a moderate female Asian Republican for Chief Justice

Governor Schwarzenegger has nominated Tani Cantil-Sakauye as replacement for retiring Chief Justice Ronald George. And while she is being closed lipped on controversial issues (as Judicial nominees tend to be), her history suggests that she is not an enemy of our community. (LA Times)

She resolutely refused to state her position on same-sex marriage, saying only that she married a gay couple — “acquaintances” — during the six months in 2008 when such marriages were legal, and that she would follow precedent.

“I perform hundreds of weddings, and they included one same-sex marriage,” she said. She said she did not hesitate to marry the couple, whom she declined to describe, “because it was the law.”

Her nomination is believed to have been, to a large extent, the choice of Justice George.

UPDATE:

The AFA seems encouraged that Cantil-Sakauye is active in her church, the Sacramento Japanese United Methodist Church. While it is not a hard and set rule, often the doctrine of one’s community of faith speaks to one’s acceptance or rejection of gay people.

But I think that they fail to take into consideration that the United Methodist Church in California is proactive in its support of gay and lesbian Methodists (the district voted to oppose Proposition 8). I was unable to identify on the church’s website whether it is a supportive congregation, but I did find that at her previous church the pastor, Motoe Yamada, had organized a screening of In God’s House: Asian American Lesbian and Gay Families in the Church.

It would appear that the Justice nominee is not subjected to a steady stream of anti-gay preaching.

The Latino Catholic-Protestant Divide on Same-Sex Marriage

Why is the AFA’s Bryan Fischer so animated against Catholic Latino immigration? Well it turns out a new poll by Public Religion Research Institute was released today on “Religion, Proposition 8, and Same-Sex Marriage in California.” The poll examines the attitudes of various religious communities in California toward same-sex marriage. The must surprising finding was that Latinos overall were supportive of marriage equality (PDF: 397KB/26 pages):

There is a striking Catholic-Protestant divide within the California Latino community on public policy issues related to gay and lesbian rights.

• A majority of Latino Catholics (57%) say they would vote to make same-sex marriage legal, compared to just 22% of Latino Protestants.
• The Catholic-Protestant gap within the Latino community is evident across a range of gay and lesbian public policy issues.

This leaves the Latino community almost evenly divided on the issue, with 49% of Latinos regardless of religious affiliation supporting same-sex marriage, and 46% opposed. (Note: I have not been able to determine the margins of error for these smaller subsamples.) But Latinos overall appear more likely to shift toward a more pro-gay position, with 31% of Catholic Latinos and 25% of Protestant Latinos saying they have become more supportive, vs. 22% of White Californians saying the same thing. Only 9% of Catholic Latinos and 15% of Protestant Latinos report having become less supportive.

One interesting finding is in who Californians trust as sources of information about homosexuality:

• White evangelical Protestants, Latino Protestants, and black Protestants all ranked their own clergy leaders as the most trusted source of information about homosexuality.
• Both white and Latino Catholics say they trust the parents of gay or lesbian children more than their own clergy as a source of information about homosexuality.

Joseph M. Palacios, Adjunct Professor of Sociology at the Center for Latin American Studies at Georgetown University, cites three likely reasons for these findings:

Family First: Latino Catholics orient their social lives around the family and extended family even in the context of high Latino single-parent households (estimated 33% of all U.S. Latino households; 36% of all Latino Children in California live in single-parent households). Family solidarity is strong and even though children may not follow “traditional family values” as projected by the church and the U.S. society, parents want to keep their children within the family. It is not surprising that Catholics in general and Latino Catholics in particular, as the Public Religion Research study shows, see that parents learn about gay issues from their children. Their moral and ethical judgments are primarily made through this social reality rather than abstract pronouncements from their church leaders.

Catholic Communal versus Protestant Individual Faith: Catholicism is a communal faith that highlights the life cycle process through the sacraments of baptism, Eucharist, confirmation, and marriage. Families experience their moral lives through communal participation in the sacraments, as well as the Latino community’s cultural observances of Our Lady of Guadalupe, Posadas, Dia de los Muertos, etc. Protestant Latinos, on the other hand, have a faith that is individually driven through faith conversion (“accepting Jesus Christ as my Lord and Savior”) that often separates a person from the Catholic sacramental life cycle process and the social fabric of the Catholic-based cultural celebrations. …

Latino Catholic Tolerance versus Protestant Fundamentalist Judgment:Catholics allow complexity and ambiguity in moral decision-making since Catholicism is neither fundamentalist nor literalist regarding the Bible. Rather, Catholics can weigh factors such as the Bible, church teaching, and social reality affecting decision-making. Latino Catholics in the United States live in this social context that allows the free exercise of conscience rather than enforced scriptural fundamentalism or bishops’ and pastors’ exhortations in making decisions regarding homosexuality and gay rights– as is often exercised in Protestant fundamentalist and evangelical denominations and now by increasingly doctrinaire Catholic bishops. Further, as noted in the study, Catholic priests rarely mention homosexuality or gay issues in sermons except when forced to by the bishops as happened during the Prop 8 campaign.

Palacios cites another possible factor: Latino Catholics’ centuries of historical experience with the Church dictating political policy. Many Latin-American revolutions were as much rebelions against heavy church influence as they were rebellions against Spanish rule. (And Spain, too, has finally shaken off the Franco-era’s close political collusion with the Church in state affairs.) Latino Catholics know, perhaps far better than others, the benefits of a strong church-state separation.

Public Religion Research Institute survey shows current status of support in California

The Public Religion Research Institute released a survey today about the attitudes of Californians on gay issues. PRRI is a progressive organization and the survey was funded by strong supporters of our community, so we must be cautious to look for bias. As I believe that the language of the Survey Report lends itself to a slightly rosy translation rather than strict interpretation of the numbers, I’ll mostly focus on the results.

The methodology was a randomly selected telephone survey of 2,801 adults with additional oversamples of African Americans and Latino Protestants (this was relevant due to a desire to find statistically valid conclusions about of those populations). This is a sufficiently large sample to provide meaningful information. The results were subsequently weighted to correct for oversampling, and to allow for comparisons between categories of participants.

I’ve reviewed the questions of the poll and do not think that this is a poll which is designed to generate specific answers. However, the language leading up to some questions does, in my opinion, set up the participant to view gay rights in terms of “chances in life” and some follow up questions seem to be a bit on the persuasive rather than inquisitive side.

All that being said, here are the findings of the PRRI survey:

Q.7 Which of the following statements comes closest to your views

42% Gay couples should be allowed to marry
31% Gay couples should be allowed to form civil unions, but not marry OR
24% There should be no legal recognition of a gay couple’s relationship

This seems to be very similar to the findings of the Field Poll, well within the probability range. I think we can assume that these probably represent the attitudes and perspectives of Californians.

Q.10 Do you believe that gay and lesbian couples who want to get married are trying to change the institution of marriage or join it?

39% Change it
57% Join it
4% Don’t know

This is an interesting finding. It seems that some participants believe that gay people have no ill intention towards marriage or any desire to revise it, yet they still prefer civil unions to marriage. This is a demographic that may be open to arguments about fairness and equality.

It also suggests that about 4 in 10 Californians have been receptive to the campaign of lies and villainization that enemies of equality have waged. To reach these people we must assure them that we are not trying to make marriage mean anything other than what it has always meant.

Q.12 In 2008, Californians voted on Proposition 8, the state constitutional amendment to eliminate the right of same-sex couples to marry in California. Did you vote “Yes” to eliminate the right of same-sex couples to marry, or did you vote “No” on Proposition 8.

39% Yes
49% No
8% Did not vote on Proposition 8
4% Don’t know

Obviously this is not how Californians voted on Proposition 8 (it passed with 52.2% of the vote) and there are a few possibilities why. It could be that this is a bad sample. Or it could be that the language of the question made the participants embarrassed to answer the question honestly.

But I think that this is an answer that is consistent with the way in which voters respond after the fact. Surveys which ask “who did you vote for” consistently find that those polled disproportionately “recall” having voted for the winner, especially if he’s popular.

This isn’t because they are dishonest. Rather, it’s because they probably were not a firm vote and went back and forth in their mind before casting their vote. So their current thinking influences their recollection and they recall having favorable attitudes for the winner and disfavorable towards the guy they actually voted for.

In this case, however, the majority of participants who voted “recall” being on the losing side. This would only make sense if they now consider Proposition 8 to have been a bad idea. Which brings us to:

Q.15 Do you think the passage of Proposition 8 was a good thing for California, a bad thing or do you think it hasn’t really made any difference?

22% A good thing
29% A bad thing
45% Hasn’t made any difference
4% Don’t know

Slightly more say “a bad thing”, but not enough to really account for the variance between Q.12 and the actual vote. So a chunk of the “no difference” crowd would have to be generally negative towards Prop 8 in order for this survey to have any consistency at all.

And it appears that they are.

Q.16 If you had to vote on a similar ballot proposition tomorrow, would you vote to keep same-sex marriage illegal or would you vote to allow gay and lesbian couples the opportunity to get married?

45% Vote to keep same-sex marriage illegal
51% Vote to allow gay and lesbian couples to get married
4% Don’t know.

A review of the polling compared to the results on gay marriage issues shows that pre-election polls often have the gay supporting percentage correct but that all of the “unknowns” vote against equality. So this is a squeaker.

What follows are a few questions that I think advise us as to our future efforts. Going forward, it seems that we need to educate and inform and be diligent in challenging the lies that are regularly told by those who seek to keep us denied civil equality.

Q.26.d Sexual orientation is determined at birth

26% Completely agree
25% Mostly agree
20% Mostly disagree
21% Completely disagree
8% Don’t know

Not only do we need to educate about the evidence surrounding the etiology of sexual orientation, we need to educate about the phrasing of this question. The issue is not whether orientation is “determined at birth” but whether it is a naturally occurring phenomenon over which each of us has little or no input and that for many gay people biology plays a key role.

In other words, the issue isn’t whether there is a “gay gene” but rather whether orientation can be “caused” or whether, like handedness, it just develops.

Q.26.e Homosexual orientation can be changed

15% Completely agree
19% Mostly agree
21% Mostly disagree
37% Completely disagree
8% Don’t know

It looks like our stories and our honesty is being heard. But with 34% still buying into the “change” myth, we have a ways to go.

The survey also found that 67% mostly or completely agree that gay and lesbian relationships should be accepted by society and that 60% mostly or completely disagree with the statement that “sexual relations between two adults of the same gender is always wrong.” Additionally, 25% believe that they are more supportive of gay rights than they were five years ago while 8% think they have become less supportive.

The Survey Report has some additional analysis. For me, the fascinating parts are the comparisons of various religious participants and how church denomination, attendance, and pastoral message influences attitudes, both negatively and positively.

Field Poll: Californians support marriage at pre-8 numbers

In May 2008, before the onslaught of lies and false arguments that dominated the airwaves over the summer, the California Field poll found that 51% of Californians supported marriage equality. Those who disapproved were 42% and 7% didn’t know.

The numbers dipped in 2009 (49% – 44%), but the latest poll has them back at 2008 levels. All of which are within the margin of error.

This suggests that movement on the marriage issue (according to Field) has stalled. There also appears to be little to no movement over the past two years on the percentage that prefers marriage to civil unions when provided with multiple options: 44% marriage, 34% civil unions, 19% neither.

Lou Engle Announces Sacramento TheCall Rally for Labor Day

Despite his use of violence-laden rhetoric toward the gay community and his proclaiming himself as a prophet from God because he has strange dreams, Lou Engle is now starting to be embraced by some of the more mainstream elements of the Christian Right, namely Focus On the Family. It was through that forum that we learn that Engle has announced a rally of TheCall for Sacramento:

Will you be hosting another TheCall event this year?

We are hosting TheCall Sacramento Sept. 3-4 – over Labor Day weekend – at Raley Field.

We are calling for a national solemn assembly. We have to follow God’s prescription for times of crisis – to gather together in unity to fast and pray in humility.

We will officially launch www.prayandact.org during the event. We are calling the whole nation to fast and pray for 40 days.

Sacramento has been the scene of significant anti-gay violence in recent years. In 2007, Satendar Singh, a young gay man from Fiji, was brutally attacked and killed at a picnic area near Sacramento by Russian immigrants with ties to Sacramento’s virulently anti-gay evangelical groups. Andrey Vusik, 30, identified as the man who threw the fatal punch, fled the country and is believed to be hiding in Russia. Sacramento is also home to Vlad Kusakin, who helped to co-founded Watchmen On the Walls with Holocaust revisionist Scott Lively, Seattle-area pastor Ken Hutcherson, and Latvian megachurch pastor Alexey Ledyaev. Another prominent member of Sacramento’s Slavic community, George Neverov, has also been active with the Watchmen locally and internationally.

Olson: SCOTUS confirms gays as a class

In yesterday’s commentary about the Christian Legal Society’s attempts to get recognition by Hastings Law School, I noted that the Supreme Court seems to have identified gay people not in terms of behavior but as a distinct class of people:

The court confirmed its position that attempts to differentiate between behavior and identity (in religious terms, “love the sinner, hate the sin”) as distinctions without difference
…
While it may be premature and reaching to draw such a conclusion, it appears that the court seems to be in agreement that sexual orientation is a matter of people and not a matter of behavior.

It appears that Ted Olson, lead Theodore Boutrous, counsel in Perry v. Schwarzenegger, made the same observation. He has written a letter to Judge Walker advising him of the court’s decision and encouraging him to consider it in his decision whether to find Proposition 8 to be in violation of the US Constitution.

In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class. Writing for the Court, Justice Ginsburg explained: “Our decisions have declined to distinguish between status and conduct in this context.” Slip op. at 23 (citing Lawrence v. Texas, 539 U.S. 558, 575 (2003); id. at 583 (O’Connor, J., concurring in judgment); Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993)). This confirms that a majority of the Court now adheres to Justice O’Connor’s view in Lawrence, where she concluded that “the conduct targeted by [the Texas anti-sodomy] law is conduct that is closely correlated with being homosexual” and that, “[u]nder such circumstances, [the] law is targeted at more than conduct” and “is instead directed toward gay persons as a class,” id. at 583 (O’Connor, J., concurring in judgment) (emphasis added). See also Romer v. Evans, 517 U.S. 620 (1996) (treating gay and lesbian individuals as a class for equal protection purposes). The Court’s holding arose in response to Christian Legal Society’s argument that it was not discriminating on the basis of sexual orientation, but rather because gay and lesbian individuals refused to acknowledge that their conduct was morally wrong. The Court rejected that argument, holding that there is no distinction between gay and lesbian individuals and their conduct.

Poor ProtectMarriage. Almost all of their witnesses had to be pulled after failing miserably in depositions (one was called as a witness for the plaintiffs). Their sole witness was unqualified and actually hurt their cause. They had to change their “reason” for the proposition time after time (including within closing arguments). And now their argument against heightened scrutiny just skipped out the door.

If they weren’t defending discrimination based on animus and founded in a smug assumption of superiority, I might almost feel sorry for the supporters of Proposition 8.

The Gayest Place in Orange County

He leaned in and whispered, “I love her! She’s so funny. She’s just like Ellen DeGeneris!”

My new acquaintance was right. She was very engaging and had us all in stitches, which might at first seem incongruous for a workshop on dealing with discouragement. But that was the approach Christine Sneeringer took at the Exodus Freedom Conference in Irvine, California. I decided to attend that conference in June 2007 because I wanted to get a first-hand look at what Exodus International looked like to those who seek to change their own sexuality. So there I was, listening and laughing at Christine’s talk about her difficulties in “coming out of lesbianism” before becoming director of Ft. Lauderdale-based Worthy Creations, an Exodus member ministry. A lot of her tips consisted of a steady stream of Bible verses, which my friend dutifully called up and notated on his brand new first-generation iPhone’s Bible app. My new friend, who had moments ago plopped himself down in the seat next to me, exuded an easy charm and likability that blew away every image of a cowering, sniveling and self-loathing “struggler” (that’s what they call themselves and each other; I never heard the word “ex-gay” at the conference) that I was burdened with when I decided to attend the conference. In fact, he was not much different from any other young gay man who you’d run into in West Hollywood or the Castro.

The same was pretty much true for most of the 700 people who attended Exodus’ signature annual conference. As you would find in WeHo or the Castro, the conference attendees tended to skew younger (twenties and thirties mostly), were mostly white, and predominately male. And the Exodus conference had another thing in common with WeHo and the Castro: For five nights and days, Concordia University, a private Lutheran-affiliated (Missouri Synod) campus, was transformed into the gayest gathering in all of Orange County. And I don’t mean that in a condescending, snarky sense, but rather in a revelatory sense, one that I hadn’t expected.

I began to draw this conclusion early on Tuesday evening as people filtered into the main hall for the opening plenary session. I quickly determined that there were two broad categories of people taking their seats. The first group consisted of veterans of previous conferences. They had made lots of friends at those conferences and they were eager to meet up again. It was sort of like a summer camp reunion. Every once in a while, you’d hear someone let out a squeal of excitement when they suddenly spotted a friend from across the room. They’d then race over to hug and greet their friends and excitedly catch up on old times, jazz hands and all. I was surprised at how quickly they let their guard down. As all gay men come in so many varieties, so do the strugglers. Some are more butch while others are more effeminate. But here, it seemed that no one bothered to hide whatever embarrassing mannerisms or speech that would otherwise come naturally to them and cause no end of grief among their outside peers. This was another surprise, because it contradicted the emphasis on gender-conforming appearances and behaviors that many ex-gay programs strive to instill.

The second group filtering in were the first-timers. They were easy to spot because they had that look of fear in their eyes that we all have experienced — the fear and shame that they would be discovered as being gay. They were visibly nervous, and you could tell that they remained on guard until the opening program was underway.

But then something magical happened. When Exodus Vice President Randy Thomas took the stage as M.C. you could see a sense of relief wash over this second group. If you’ve never seen Thomas in the flesh, well let me just say that he’s not exactly the most masculine man I’ve ever seen. And for this crowd, that worked wonders. Thomas was very confident, campy and genuinely funny — a natural-born entertainer. He really did a great job at setting these first-timers at ease. Thomas deliberately mixed his sports metaphors to signal to the crowd that he couldn’t have possibly cared less about any of it. He joked about show tunes, fashion, Project Runway, shopping – you name it, as the audience roared with laughter in self-recognition. He even made a few gentle lesbian toolbelt and softball jokes, all in very good fun and affection. And as the evening wore on, I could sense a wave of relief washing over the first-timers. It was as if half the room collectively exhaled.

I found it easy to identify their sense of relief. It reminded me of the first time I walked into a gay bar. It appeared to have dawned on them that – finally! – this is a place where they can be themselves. They no longer had to worry about where their wrists went or how they crossed their legs or what expression or tone escaped from their mouths. For many of them, this was probably the first time in their lives that they were surrounded by so many people who were exactly like them! Which was the same thought I had during my first visit to a gay bar. I remember looking around and thinking to myself, “They are all gay, just like me!” When these first timers warmed to the conference, they appeared to have a similar yet critically different thought: “They are all gay and don’t want to be, just like me!”

There was one other thing that surprised me – and I don’t know why this should have surprised me either. The conference was, on balance, actually a lot of fun. I can’t say that I had that much fun exactly. I was there to just be quiet and learn what the conference was all about. For me, it was more of a work assignment, a sort of an anthropology project. But the live music (Yes, Christian Broadcasting Network personality Sheila Walsh even sang “Somewhere Over the Rainbow”!) the jokes, the camaraderie between sessions, and the surprisingly honest conversations that took place between and among the strugglers during meals and breaks told me that this wasn’t going to be the gloomy and punitive event I expected to find.

Exodus International presents many faces to the world. To those who are outside of the ex-gay movement, Exodus is best known for its engagement in the culture war. I had experienced that face first hand when I attended their Love Won Out conference five months earlier in Phoenix. Parts of that face crept into the Freedom Conference from time to time, particularly in workshops that were aimed at parents and at those who were of a more activist bent. Some of the parents’ workshops I attended were particularly egregious. One workshop leader, a San Fransisco-based therapist by the name of Robert Brenan, was very good at confirming every fear and angry thought that crossed those parents’ minds. “Every young man or woman out there who is seeking that fulfillment of a homosexual relationship is depressed,” he confidently told them. I guess Exodus and their affiliated speakers wanted to make sure they stayed in line. And Michael Brown spoke at a plenary session in which he exhorted the crowd to fight against “pitched attack from hell” against the moral fabric of the culture at large, saying that a Christian should value the cause more than he values his own life. It was a message that these strugglers took to heart. It seemed to give their sense of deprivation a divine purpose and gave them a means of shouting out their frustrations against those who saw no reason to struggle as they did. Which goes to show that rabbles can be roused anywhere.

But those were exceptions, and they were so glaring because most of the conference appeared to steer clear of culture-war rhetoric. This was particularly true in programs which were tailored for strugglers themselves – and this was the vast majority of workshops and events of the conference. This is where Exodus presented a very different face from what I had seen before.

And again, this shouldn’t be too surprising. As longtime readers of this web site know, Exodus is very good at adapting its message to different audiences. And with this particular audience, when you strip away all the layers – the Christian commitments, the shared belief that homosexuality was morally deficient, the internalized shame for being gay – they were still in the end a gay audience, and often a savvy one at that. That meant that Exodus has much less room to bullshit them than they would their parents or the general public. That’s not to say that the strugglers weren’t laboring under a lot of false expectations. Many of them were, and those expectations were reinforced at that conference. But there were limits as to how far Exodus could go.

And so, for example, they had a workshop on AIDS. Exodus understands that because this audience is, fundamentally, a gay one, some of them are living with HIV/AIDS. So any hint of AIDS stigma was completely forbidden. I didn’t attend that particular workshop, but in talking with others who did, they said that it was generally very good and sensitive, albeit from a distinctly Christian point of view. These were guys who themselves were involved with health care and HIV/AIDS, so I tend to believe their assessment is probably reasonably accurate. They said it was devoid of condemnation, although the safe-sex advice was relegated to how you might protect your future spouse should you someday marry. (One struggler said he was disappointed that they didn’t talk much about effective outreach and care for people with AIDS in the gay community. But since I wasn’t there I can’t say whether I would have agreed with that particular criticism.) While AIDS might be brought up in other venues as a reason why one should become ex-gay, that was never mentioned here, at least as far as I was able to observe.

But you could really see the limits of how far Exodus could push whenever a workshop flopped. John Smid’s workshop on masturbation – about how you should never masturbate again for as long as you live – had the jock sitting next to me slamming his notebook shut and muttering under his breath, “This is bullshit!” Another struggler brought Randy Thomas’ workshop on “Warring World Views and our Redemptive Response” to a screeching halt when he angrily denounced some of the anti-gay preachers who were featured on a compendium of video greetings that was shown on opening night. “When I was in the lifestyle, they were the ones that caused the most harm, the most anger, the most pain between me and my family.” He couldn’t finish, and instead broke down crying. All talk of “warring world views” suddenly became moot. The only thing that mattered now was comforting this young man who had experienced so much pain from his own church, pain that came flooding back at him during the workshop. This was a shared pain that everyone in that group could identify with. Myself included.

And there were other, much lighter notes that reminded me that the conference attendees were very much my people. Take poor Tim, for example. I have no idea whether he’s actually gay or not, but he should be. He was the divinity grad student who was called upon at the last minute to deliver a workshop called “Secrets of Men: Understanding Masculinity.” God was he hot! He spent a lot of time in the gym, and he knew how to buy clothes which, modestly yet snugly, showed off his hard work in the best possible light. And this stud was going to talk about the “secrets of men!” Bonus!

Needless to say, the room was packed to overflowing. And poor Tim, someone forgot to set up the A/V projector, which meant that he couldn’t show his PowerPoint presentation and videos. After about a half hour, he sheepishly announced that they would have to reschedule the workshop. He was so cute. He apologized profusely and everyone, of course, forgave him. When Randy Thomas later announced an alternate time during what should have been a break period, we selflessly sacrificed our break and again filled every seat, this time in an even larger room. I guess word had spread. The presentation itself turned out to be extremely silly: videos of football players patting each other on the butt while Tim solemnly announced, “That is an example of an appropriate, non-sexual masculine touch.” But that was secondary to the real attraction of the workshop: his arms, his chest, his own inappropriately-pattable butt in his tight-fitting Dockers. I think if he had needed to reschedule again, nobody would have minded.

And that brings me right back to the point I really want to make. Regardless of whatever images we’ve conjured of what an ex-gay “struggler” looks like, those images are often more a product of fiction than fact. They are also often products of ex-gays who go on to try to publicly proclaim their own heterosexuality, a proclamation that is typically less than credible. Yes, I saw that too. On opening night before the conference, there were news cameras roaming the grounds. And standing before one of them was a man in his mid-fifties who looked like an aged Rod Stewart clone from 1978, but with the mannerisms of Paul Lynde. “Of course I’m straight!” he squealed as he leaned into the camera. “If you don’t believe me, ask my wife!”

Fortunately, those examples were mercifully rare. Most of the people I talked to were full of hope, but they also recognized the very serious challenges that lay ahead of them. And so the best way to regard these strugglers is to think of them as our gay brothers and sisters, because that’s really who they are. And for most of them, that is what they ultimately will be. If the research that was paid for and supported by Exodus International has any validity, then of the approximately 700 people who attended that conference three years ago, a quarter to just under half of those strugglers are no longer struggling today. And in a few years, the dropouts and “failures” will reach two-thirds of the group that I saw that year.

I saw quite a few strugglers there who I’m sure have come out of the experience just fine. There are others however who I still remember and worry about. I worry about the handsome young man from Sacramento who, at age 25, was an unmarried father and a drug addict. “I only feel gay and act out when I’m high,” he told me. “Acting out” is ex-gay parlance for having gay sex. He hoped that if he could get a handle on his addiction that his homosexuality would somehow disappear. “I’m only gay when I’m high,” he kept repeating.

I think about the young man from Chicago who was there with his wife. They had two small children, the youngest just a few months old. On opening night, Exodus International president Alan Chambers raised the possibility that some people’s sexual orientation might not change and challenged them to persevere anyway. I asked him what he and his wife thought of that. “She’s very scared,” he said. “She cried all night. She kept asking me, ‘What if you don’t change?’ I don’t know. There aren’t any guarantees. All I can do is try.”

I worry, too, about an older gentleman who said that he wasn’t ex-gay, but was a church volunteer accompanying two other ex-gays from New Mexico. I asked him how he became interested in the ex-gay movement. I don’t recall his answer, only that he said that he spent so much time in this ministry that his wife divorced him. “That’s okay,” he said without a hint of regret. “God freed me so I can spend more time in the ministry.” That was odd. I’d never heard anyone credit God for their divorce before, let alone be grateful for it. That conversation left me with way more questions than answers.

And I think about the father from St. Louis who was there with his teenage son. His son had come out to him a year earlier. Since then, the father had read every Exodus- and NARTH-recommended book he could get his hands on. He had just finished one of Joseph Nicolosi’s books. Nicolosi believes that male homosexuality is caused by a poor relationship between the father and the son. The father was wracked with guilt. “It cut through my heart like a knife,” he confided, with his eyes welling up with tears. Because I was there to observe and not participate, I had made a rule for myself that I would not try to offer any advice. I broke that rule here. I reminded him that his son loved and trusted him enough to come out to him, and to share with him perhaps the most personal and potentially embarrassing aspect of his still-young life. He took a huge risk in doing that. I told him that my father had died when I was in college, long before I was able to come out to him. In one very key way, this father and son were no longer strangers, and that he was lucky that they shared that kind of trust. He told me he really hadn’t thought of that, and it seemed to give him a better perspective on his relationship with his son. I wonder how they’re doing now.

It’s three years later, and today is the first full day of the 2010 Exodus Freedom conference. This year’s conference is a day shorter than it was when I attended. For this conference, they have returned to Concordia University in Irvine, and once again, the campus will be the gayest place in Orange County. I really wanted to go. Maybe I, too, could catch up on old friends and acquaintances, just to see how they’re doing – if they’re still around. I wonder if my friend’s iPhone still has his Bible app, or if that app has now been replaced with Grindr. Unfortunately, commitments conspired to make such a trip impossible. Oh well, maybe next year.

The “Not Gay” Scarfboi’s Ties to Lou Engle

Adam Hood’s two videos have gone viral throughout the web. In this video, Hood provides a bit more background to his life story. It turns out that Hood is associated with Morningstar House in the Portola district of San Francisco. He also works with the so-called “Justice House of Prayer,” the evangelical group which is often seen “witnessing” in the Castro near the Bank of America or on Harvey Milk Plaza. Engle says he sent his son to establish JHOP just a block off the Castro “where the homosexuals boast the dominion of darkness.”

Perry v. Schwarzenegger: closing arguments

For today’s summary, I relied on liveblogging by FiredogLake, Equality California, and the San Jose Mercury News.

Today Judge Walker Vaughn heard closing testimony, a very active process in which the judge asked a great many questions. From an information perspective this was basically a recap of the case, with each side seeking to present their evidence in the best light. But it was the opportunity for the judge to get each side to clarify and flesh out exactly what legal theory they were using for their argument.

First up: Ted Olson, the conservative icon who surprised anti-gay activists by declaring equality to be a conservative principle and by leading the case to reverse Proposition 8.

Olson talked about the various perspectives of those who are involved in the fight. He pointed out that the supporters of Prop 8 had one story during the campaign (protect the children) and an entirely other one during the case (deinstitutionalization of marriage). But for the plaintiffs, this is the most important choice they can make as an adult: who to marry.

Olson talked about how other relationships were not the same as marriage and had not been considered the same in American history. Slaves could enter informal relationships, but when freed and able to marry they found that the “marriage covenant is the foundation of all our rights.” When Loving v Virginia overturned racial restrictions, it removed a stigma.

He discussed how marriage equality makes gay families and their kids “okay”. How it reduces the burden on gay families, but also make America more American (according to the defense’s witness, David Blankenhorn).

Olson told the judge that his decision to allow a full trial on the merits of the proposition has provided evidence and been an education. He compared it to Brown v. Board of Education (the 1954 case which tossed out the “separate but equal” racially discriminatory education system). He lays out the long string of cases in which the SCOTUS has moved towards greater equality, at times overturning previous decisions.

And he laid out the case’s strongest argument: this is government imposed stigma placed in the state constitution. Further, the California Supreme Court did not “create a window” of rights. The right to marry the person of one’s choice had always existed, the CA Court simply recognized that right. The SCOTUS has found the right to marriage to be a fundamental right, and in Lawrence they found that homosexual behavior was a constitutional intimacy right. Applying each case atop the other, Olson said:

It can’t be constitutional to take away a constitutional right because a person engaged in a constitutionally protected behavior.

Olson argued for strict scrutiny, but said the case fails on any scrutiny. There is no state interest and “Because I say so” is not a reason for continued discrimination.

The voters passed Proposition 8 so as to say that same-sex marriage is not okay, to say that gay people are not okay. That is malice. It is not a constitutionally valid reason for denying rights to a class of people. Proposition cannot be found to be supportable in this case by any good valid reason, because no good valid reason was presented to support it.

And that concluded Olson’s closing statements.

Therese Stewart, on behalf of the City of San Francisco, spoke about the costs to the city: institutionalized discrimination increases mental health cost, the policing costs associated with increased hate crimes, costs for addressing bullying, the cost of lost tourism. But it would also cost the city its ability to treat all of its citizens equally.

The Governor and the Attorney General formally waived their right to defend Proposition 8 with closing arguments.

The judge then made an interesting observation. It seems that in most counties when you apply for a marriage license, there is no requirement on the form itself that you be opposite-sex. That really, from an administrative perspective, the decision to issue a license is up to the county clerk. The same is true for the issuance of domestic partnerships to heterosexual couples under the age of 62.

I’m not sure where the judge was going with that. But then they broke for lunch.

After lunch, Charles Cooper presented his closing arguments in defense of Proposition 8.

He argued that restricting marriage to the opposite sex was fundamental to the existence and survival of the human race. The purpose of marriage is for procreation. And without state-defined marriage, society would come to an end.

The judge pointed out that because the state has no requirement that married couples procreate – or even have the capacity or intention of doing so – that there must be some other purpose for marriage. Cooper rhetorically pondered the ways a state might go about insisting on procreation, suggesting that they were ludicrous, but the judge agreed that for his argument to be logical that these would be reasonable steps. None of them are required.

Cooper revised the purpose of marriage to be a that of increasing the likelihood that natural procreation be within the confines of marriage. Walker countered that marriage obligations extend far beyond the control of sexual behaviors.

What happened next was the defense’s worst nightmare. The judge asked Cooper for the evidence to support his premise. Cooper tried to quote various sources but the judge pointed out that none of these sources testified, that defense had only brought one witness “and I think it’s safe to say his testimony was equivocal.”

Cooper was left replying that there was no need for a witness, that there was no need for evidence, that it was obvious. The judge was not much impressed with the “I ain’t need no evidence” defense.

Cooper argued that up until 30 years ago no one considered same-sex marriage. Therefore it just must automatically be tied to procreation. But now gay people want to marry.

The judge then asked if these changes in the past 30 years might not, as was the case with Loving, be at a tipping point at which the purpose for marriage has changed in the public conscience. Cooper struggled to explain how racist restrictions differ because they had no basis in historical definitions [he may want to read more history], that miscegenation laws created illegitimate children [he may not actually have been listening to the words he was saying].

Cooper argued that the sole distinction – the sole criteria for legitimate marriage – was the ability to procreate “normally”. The judge failed to see how assisted fertility could not also be applied.

So Cooper shifted gears again and declared that the state had a right to “strengthen social norms”. He discussed children born out of wedlock and that restricting marriage to heterosexual couples was a way to protect against this increasing trend.

[So Cooper has within this testimony declared the purpose of marriage to be encouraging procreation so as to further the survival of the species; he then changed his definition to be channeling possible procreation into marriage; and then changed it again into discouraging irresponsible procreation, almost the opposite of his original contention]

Cooper next argued that this case should be subjected only to a rational basis standard. And because of this, he need not prove that the voters had any particular intention to discourage irresponsible procreation (or whatever his current purpose for marriage might be) but only that it is conceivable that they could have used this logic had they so wished. Not that they did, but that a rational person could.

This vein of questioning ended and Cooper clarified his request to have the 18,000 marriage invalidated. He’s said that if this caused irreconcilable differences, it would be better to toss out 18,000 marriages than to disregard the will of the voters. But otherwise, the defendants are fine with them continuing to be recognized as grandfathered-in.

The judge asked Cooper about whether gender (as opposed to incarceration, responsibility or ability to procreate) was the sole exception to marriage being a fundamental right. Cooper said that gender is the definitional feature of marriage.

The judge then asks if because Cooper claims that sexual orientation is only a social construct, then how it differs from gender. And the argument began it’s descent down the ex-gay path.

Cooper claimed that sexual orientation was not immutable and was not an “accident of birth”, i.e. no one is born gay. [I’ve long believed that the immutability of sexual orientation is the basis in which our eventual civil equality will be found.] They discussed how that while religion is not immutable, its rights are found in the First Amendment, not through heightened scrutiny.

Cooper insisted as “plainly right” that sexual orientation is not an immutable trait. He declared that 2/3rds of women change their orientation [a gross misstatement of the facts].

He further insisted that gays are not politically powerless. When the judge quoted a litany of discrimination, Cooper agreed that gays have been victims of discrimination, but insisted that history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny.

The arguments took a veering to discuss whether Blankenhorn is a qualified witness. To support this, Cooper had nothing additional to add.

(to be continued… check back later)

Prop 8 Supporters Ask Court to Forcibly Divorce 18,000 Married Couples

During the Prop 8 campaign, the supporters of the California innitiative to strip LGBT couples of their then-existing right to marry promised California voters that they would not try to nullify the marriages of those who had already married. But it didn’t take long for that to turn out to be a bold-faced lie. That particular effort failed, but they’re back at it again:

As the trial over California’s prohibition on same-sex marriage enters its final stage today, the ban’s sponsors are urging the judge to go a step further and revoke state recognition of the marriages of 18,000 gay and lesbian couples who wed before voters passed Proposition 8.

Such an order would honor “the expressed will of the people,” backers of the November 2008 ballot measure said Tuesday in their final written filing before Chief U.S. District Judge Vaughn Walker.

Andrew Pugno, an attorney for Prop. 8’s backers, said in an interview that the sponsors aren’t asking Walker to nullify the 18,000 marriages, but only to rule that government agencies, courts and businesses no longer have to recognize the couples as married.

This is just more proof that no matter what our opponents say, they will never be satisfied with any of their gains until LGBT people are legislated back to the closet and into the prison system. Can anyone believe that if they were able to roll back enough LGBT protections that they’ll decide that they’ve reached a point where they’ve done enough? If so, where do you think that point will be? If you want to talk about slippery slopes, there’s your slippery slope, and many of them are willing to take it one small step at a time.

Update: When I posted this, I didn’t intend for this tread to become an open invitation for the tin-hat crowd to make themselves at home. I was alluding to the fact that many of our opponents would like to see the return of our criminalization. But come on, now. Concentration camps? Gas chambers? Civil war? Really? I know there are a few nutjobs that would welcome these developments, and this web site exists precisely becaue they do. But I think we can give at least, say, 85% of our fellow Americans more credit than that.