Box Turtle Bulletin

Mormons v. Marriage Equality

In an article in Time Magazine, David Van Biema discusses the unique pressures and theological beliefs that led to members of the Church of Jesus Christ of Latter Day Saints (the Mormons) contributing half the funds and nearly all of the manpower behind Proposition 8’s drive to remove civil marriage rights from same-sex couples.

Prop 8 constituted a kind of perfect political storm of theology, demographics and organization. At the Alameda Meeting House last June (as at other Mormon churches statewide), a letter from Monson and his counselors advised believers to “do all you can to support the proposed constitutional amendment by donating of your means and time.” A string of Protect Marriage coalition meetings followed. They never occurred on LDS property, but they were overwhelmingly Mormon in attendance and sought Mormon support. Alaina Stewart, a church member, was asked to employ a list of “who in the ward we thought could contribute. We’d call and say, ‘We’re asking you to give such and such an amount,'” she says.

Some declined… But the general authorities in Salt Lake City increased the pressure. A broadcast to all churches outlined the pro-8 ground campaign, with titles like “Thirty People in Each Ward” and “More than Four Hours per Week.” Craig Teuscher, the Alameda ward’s regional stake president, reiterated in church the seriousness of Monson’s request to congregants.

The new push for the proposition had a rational side: the church claimed that the legalization of gay marriage would threaten its tax-exempt status if it refused to perform gay nuptials. (Most legal scholars disagree.) But belief in Monson’s supernatural connection also played a big role. Says Stewart: “The Prophet’s telling us to stand up. When he speaks, you’re realizing that there may be things that I don’t see.” Asks Gayle Teuscher, the stake president’s wife: “If I believe that the Prophet is a true prophet of God and disregard his counsel, what does that say about my belief in God?”

Secure in their own self-defined moral superiority, Mormons were shocked and surprised to find that gay people confronted them after the election. And in progressive parts of the state they experienced a reaction they didn’t expect, the response of neighbors who now viewed them as one might view a racist or other bigot.

Three months after the election, she says, “I don’t feel quite the same way about our community.” She felt frozen out of conversations among other parents. “You think, This will go away. But it doesn’t seem to. I think about my kids in school,” she says. “I want them to be accepted, to feel it’s O.K. to be different.”

As Californians go into another round of voting on marriage equality either in 2010 or 2012, individual Mormons throughout the state will have to determine whether they are willing to heed the call of their Prophet to donate tens of millions of dollars and countless manhours in continuing a high-profile battle against the rights of their neighbors. And they will need to consider what this could cost them.

Gay leadership has changed. And under fresh leadership, gay activists will be perfectly willing to publically portray the LDS Church as an oppressive religious bully seeking to impose its peculiar views about Celestial Marriage on gay Christians and non-believers. And individual Mormons may well find that they will be perceived as haters, bigots, and opponents of freedom and equality.

Boies and Olsen on Hardball

Ted Olson and David Boies appeared on Chris Matthews’ Hardball to talk about their federal lawsuit challenging California’s Prop 8. Matthews counted up the votes in the Supreme Court based on Lawrence vs. Texas and declared, “You’ve got a good shot at this it seems to me.” The best line comes near the end, when Olson declared:

You don’t take your constitutional rights to the ballot box. They are protected by the Constitution. That is why we have a Constitution and that’s why we have courts.

Yes He Can!

I asked last Friday:

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

The answer is yes, he did.

Tuesday’s Anti-Prop 8 Rally In Los Angeles

When we see YouTube videos of rallies taking place in other cities, we get simple editing, poor sound, and shaky cameras. But no, not in the entertainment capital of the world. This is what Tuesday’s rally against Prop 8 looked like in Los Angeles:

Press Conference Announcing the Constitutional Challenge to Prop 8

Here is the video and transcript of the press conference held earlier today by lawyers for the American Foundation for Equal Rights, announcing their lawsuit against the state of California in federal courts.

Click here for the transcript

Are Lawsuits The Best Way To Go?

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

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

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

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

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

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

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

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

What the Calif. Supreme Court said

The California Supreme Court’s decision yesterday centered not on a single question, but a few. Of the challenges to Prop. 8, the most salient was the procedural question of whether the effect of Prop. 8 was “big enough” to constitute a revision of the equal protection clause. I discuss the three issues the court considered as well as some related questions.

QUESTION 1: The judges were asked to decide whether Prop. 8 modified equal protection substantively enough to constitute a revision. Basically, the state’s Supreme Court found that NO, Prop. 8 did not constitute a fundamental revision of equal protection, which requires passage by the legislature and a public referendum, and therefore could stand as an amendment.

Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple\’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

The court is pointing out here that the only thing at stake here is the term “marriage.” Gays and lesbians retain all the rights granted by marriage in the state as articulated in In Re Marriage Cases, the decision which overturned the statutory ban on gay marriage last May. The court’s previous decision also elevated protections for gays and lesbians to the level offered to blacks and women; these protections, too, remain intact.

The passage of Prop. 8 has, according to the justices, “minimal effect on the governmental plan or framework of California that existed prior to the amendment” and therefore cannot be considered a revision to the state constitution. The judges relied heavily on this criteria — effect on governmental framework — in deciding that Prop. 8 was not a revision. They also considered the “qualitative” effect of Prop. 8 — how it affected the nature and credibility of the constitution — but fell back on the “qualitative” question of its concrete effects in deciding the matter.

Can rights be taken away by a simple majority vote?

The short answer is, yes. There have been many instances in which the California Supreme Court allowed a fundamental right to be altered in some way because of an amendment. For instance, after the court found in 1972 that the death penalty constituted “cruel and unusual punishment,” voters reinstated it by using a ballot measure. One point the justices brought up was that there have also been many instances in which a right was extended by amendment — why then, they reason, could it not be curtailed?

As many commentators have pointed out, the amendment process in California is liberal as compared to other states, which is part of the reason why hundreds of amendments to the state constitution (as opposed to 27 for the U.S. Constitution) have been enacted. More importantly, the justices pointed out, the California Constitution has no provision in it preventing an amendment that revises fundamental rights. Massachusetts, on the other hand, does; you can’t revise the state constitution’s Bill of Rights. It would also be another thing if we were talking about the U.S. Constitution.

It’s important to keep in mind that the constitutional structure of California government in part constrains what the judges can rule in favor of; unlike other state constitutions, California’s does little to stand in the way of majority rule. Even gay legal advocates thought this was a long shot.

Is this like “separate but equal”?

Yes and no. Many BTB readers have commented on how this decision is reminiscent of the “separate but equal” decision that allowed segregation to continue. I think it’s important to note that the right in question here is not really equivalent in scale to segregation. We are not talking about separate public accommodations — we’re talking about the right to a label, which, while culturally and politically significant, does not approach the rights in question in Plessy v. Ferguson. I am not saying I think the decision is just or fair, only that comparing it to “separate but equal” strikes me as a bit hyperbolic.

A larger question is whether we should be concentrating our efforts on the symbolic “civil unions” vs. “marriage” distinction when millions of gays and lesbians can still be legally fired for being gay, cannot adopt children, and have no rights comparable to those offered by marriage or civil unions in places like California.

QUESTION 2: The second argument the justices considered was whether Prop. 8 violated the “separation of powers” by allowing the electorate to decide on a matter already settled by the courts. The justices rejected this argument outright, saying that the California Constitution “explicitly recognizes the right of the people to amend their state Constitution.”

This argument was even more of a long shot than the first. It was basically saying that the electorate “usurped” the power of the judiciary.

QUESTION 3: The final question the judges considered was not proposed by Lambda Legal, which brought the case to the court, but by the state’s Attorney General. He argued that certain rights enshrined in the state constitution are “inalienable” and “not subject to ‘abrogation.'” Again, the justices fell back on the fact that the state constitution does not explicitly designate certain rights as such, as opposed to other constitutions that do.

The court’s decision is of course a personal regret, but I think the moral question of whether this is, in a sense, “right” is different from the legal question of whether Prop. 8 could be overturned. It is telling that the justices voted 6-1 in favor of upholding Prop. 8, though for the dissenting opinion one can look to the decision here (it’s at the end).

You’ll Never Guess Who’s Behind The Federal Court Challenge To Prop 8

The Associated Press is reporting:

Two of the nation’s top litigators who opposed each other in the Bush v. election challenge in 2000 have joined forces to seek federal court intervention in California’s gay marriage controversy. Theodore B. Olson and David Boies have filed a U.S. District Court lawsuit on behalf of two gay men and two gay women, arguing that the California constitutional amendment eliminating the right of gay couples to marry violates the U.S. constitutional guarantee of equal protection and due process.

That’s right. Teaming up to fight Prop 8 in the Federal Courts are two lawyers, one of which fought hard to put President George W. Bush in the White House, and one who fought just as hard to try to keep him out. Theodore Olson went on to become Bush’s Solicitor General.

Olson may seem like an unlikely person to tackle a quixotic attempt to overturn Prop 8 in federal court (I don’t think it stands a whisper of a chance), but Olson seems committed. This is what he told the Washington Examiner:

“I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions,” Olson told me Tuesday night.  “I thought their cause was just.”

I asked Olson about the objections of conservatives who will argue that he is asking a court to overturn the legitimately-expressed will of the people of California.  “It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution,” Olson said. “The constitution protects individuals’ basic rights that cannot be taken away by a vote.  If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution.  We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation.”

This is huge. Olson is as conserviative as they come. As John Aravosis at AmericaBlog points out, Olsen much more than a mere Bush White House operative (Warning: noisy ads at AmericaBlog):

He was a member of the board of the American Spectator, the magazine that investigated Bill Clinton in the early 90s, and got that entire ball of wax rolling. Olson was the guy who was so conservative that Harry Reid torpedoed Bush’s desire to make Olson Attorney General after Gonzales. Olson is so conservative that Bob Novak (aka Novakula) called him “highly esteemed.”

It just goes to show, you never know where our allies will come from next. It’s also the best example I can think of to remember that the hard work of dialog with those who oppose us is a worthy effort. And if there was ever reason to be optimistic about where we’re headed, this is another one. Olson joins John McCain’s chief strategist Steve Schmidt and McCain’s daughter Meghan as outspoken supporters for marriage equality.

(via Towleroad)

And all of this of course begs raises the question: where are Obama and the Democrats?

Phyllis Lyon: “It Will Be OK”

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

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

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

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

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

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

A Narrow and Limited Exception

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

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

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

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

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

As civil rights hero John Lewis said in 2003,

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

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

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

No One is Happy with the Decision

USA Today has an collection of responses from both supporters and opponents of marriage equality. Interestingly, no one seems pleased.

Supporters of marriage are saddened but most look forward to the day when same-sex marriage is recognized in our state. Senator Diane Feinstein:

I know today\’s decision is a tremendous disappointment for many people. But I also know that the opinions of Californians are changing on this issue, and I believe that equal marriage rights will one day be the law in this state. This is already the case in Connecticut, Iowa, Maine, Massachusetts and Vermont. So, I believe this issue will come before the voters again, and I am very hopeful that the result will be different next time.

Opponents are all indignant that those 18,000 couples who joined before God and man have not been stripped of their legal recognition. Anti-gay activist Mathew Staver:

He said the court’s decision to let stand the 18,000 marriages “makes absolutely no sense and is not consistent with rule of law.” He compared it to the 13th amendment that abolished slavery and noted there were “no grandfather rights” in that and that the same-sex couples’ marriages should not be recognized.

And of course there is the opinion of the raging homophobe who selected the picture to accompany the story. Because nothing embodies the debate over marriage like a picture of a man in a nun’s habit. Really, if it were left up to me, that person would be fired.

Another Wacky Proposal About Marriage

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

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

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

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

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

Anyone want to start collecting signatures?

A Wacky Proposal in Response to Proposition 8

As the California Supreme Court has upheld the decision by 52% of voters to restrict the word “marriage” to apply to only those unions that are between a man and a woman, perhaps it’s time to revisit the nomenclature assigned to same-sex unions.

Currently California uses the somewhat dismissive term “Domestic Partnership”. This term, by its very nature, assumes that same-sex unions are defined only in terms of domicile and not in terms of emotion, commitment, love, and the bonds that make two into one.

Similarly “Civil Unions” is a term that, while recognizing the union of two, excludes a very important aspect of the establishment of family. By reminding us that it is but a civil contract, it downplays the participation of faith, family, and community that are such an important part of marriage in our society.

Therefore, I propose that we select a term that allows for celebration of the joining of hearts and lives but which does not include reminders that the parties are less than, limited, and inferior to those in a marriage: Weddings.

The legislature should simply rename “Domestic Partnerships” to be “Weddings”. Then California can have two institutions, marriage and wedding. Yes, they would continue to be “separate but equal”; however, the major distinction would be that marriage would be excluding and discriminatory while wedding would be open to all.

How Full Is Your Glass?

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

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

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

California Court Upholds Prop 8

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

Tonight we protest.

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

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

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

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

UPDATE 2: The LA Times reminds us:

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

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