Box Turtle Bulletin

California Supreme Court To Issue Prop 8 Ruling Tuesday

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

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

CA Supremes Will Announce Prop 8 Decision on Tuesday

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

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

Case SF052609 (pdf) is:

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

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

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

Will CA Supreme Court Announce Decision on Prop 8 Tomorrow?

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

Forthcoming Opinion Filings

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

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

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

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

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

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

Forthcoming Opinion Filings

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

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

California Prop 8 Decision Thursday?

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

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

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

California Marriage Drive to Include Religious Protections

The Courage Campaign, currently the most vocal activists seeking to organize an overturn of Proposition 8 in either 2020 2010 or 2012, say that things will be different this time around. The parties who spearheaded the opposition to Prop 8 will not be involved in the effort.

The two main differences may be

1. in deflating the spurious claims of NOM and other anti-gay activists

To address voter concerns about the impact that state-sanctioned gay marriage could have on religious institutions, the Courage Campaign is considering possible ballot language that would guarantee the right of any two unrelated consenting adults to marry, while simultaneously stating that churches have a right to decide for themselves whom to marry.

“In order to win, we have to remove fear because that’s all the other side has left,” Jacobs said.

2. showing the face of gay marriage

Jacobs is convinced that the “No on Prop. 8” campaign erred by not showing gays or lesbians in any of its ads.

“There were no pictures of gay people. The ads were all about fairness,” Jacobs said. “This time, we’re going to make it clear you’re talking about real people.”

The campaign will also seek to make inroads into the African American community and other communities that were not adequately targeted last year.

Irony Alert

Congressman Dan Lungren (R-CA) is outraged over Congress passing a special 90% tax for those who at A.I.G who received large bonuses.  Rep. Lungren Says that not only is the special tax unconstitutional, but it’s inherrently unfair because “you can’t punish a group because you don’t like them.”

Let me tell you if we overturn the Constitution to show our outrage, no single American is safe. Because in the future what we will do is say, we have a precedent that when we have an unpopular group, when we have a group that deserves some punishment, we won’t go through the real laws.

Lungren voted for Prop 8.

[Hat tip: Rum, Romanism and Rebellion]

Californians Against Hate: Mormon-Established “Front Group” Handled Early Prop 8 Finances

Fred Karger of Californians Against Hate has been leading the legal battle to force the Church of Jesus Christ of Latter Day Saints (LDS) to reveal its full involvement in California’s Yes on 8 campaign as required by state law. Karger filed a supplemental complaint on Wednesday with California’s Fair Political Practices committee charging that the Mormon church failed to reveal its earlier involvement in Prop 8, particularly through a front organization they had set up called the National Organization for Marriage (NOM) in the summer of 2007. This front group is similar to one the LDS church set up in Hawaii ten years earlier.

Karger charges that while early donations by several prominent Catholic doners were reported as required by law (Including hotel owner Doug Manchester [125,000], Terry Caster and his family who own A-1 Self Storage [$283,000], car dealer [Robert Hoehn [$25,000] and the Knights of Columbus [$250,000]), none of the early Mormon contributors are listed. Karger asks:

Did they do polling as they did in Hawaii? Did the Church incur legal bills as they did in Hawaii? How about travel expenses, as in Hawaii? What about staff time, as they reported after the fact in California? These expenses should be easy to identify as a part of the current investigation.

The Mormon Church engages in extensive record keeping. All requests for funds are assigned an 11 digit Cost Center Number (i.e. 123-4567-899). Cost Center records should be readily available for 2007 and 2008, which would show all the money spent to create NOM. Additionally, the Mormon Church maintains records on its “Historical Material Management System” (HMMS).

Mormon Elders M. Russell Ballard, Quentin L. Cook and L. Whitney Clayton were all working on California’s Proposition 8 and their files and records should be able to substantiate these charges.
The Mormon Church should have disclosed all non monetary contributions made during the relevant reporting periods.

Documentation related to the LDS church’s activities have been uploaded to a new web site established by Fred Karger at Mormongate.com.

Karger filed his original complaint on November 13, 2008, charging that the LDS church had failed to report its monetary and non-monetary contributions to the passage of Proposition 8. The following day, the Mormon Church spokesman Scott Trotter responded through the LDS-owned newspaper, the Deseret News, that the allegations were “false” and that the complaint had “many errors and misstatements.” But on January 30, 2009, the Mormon church revealed that it was they who had lied about their financial involvement in the Prop 8 campaign.

Prop 8 Manager’s Astonishly Callous Comment

Supporters of Prop 8 love you. Remember? They told us so regularly – right before accusing us of destroying civilization, traumatizing children, and ushering in the apocalypse.

Keep that in mind while I give you the news from Santa Clara County (the Silicon Valley):

Hate crime cases involving anti-gay sentiment shot up in Santa Clara County last year, a striking increase that a leading prosecutor attributes to controversy over Proposition 8, the voter-approved ban on gay marriage.

Anti-gay incidents accounted for more than half of hate-crime cases last year — 56 percent — a big jump from only 15 percent in 2007. There were 14 anti-gay cases out of 25 hate-crime cases in 2008, compared with only 3 out of 20 in 2007.

Jay Boyarsky, the Duputy District Attorney assigned to monitor hate crimes, notes that “surges in types of hate incidents are linked to the headlines and controversies of the day”.

Now back to the love.

When told about the increase in violence and crime against gay people, this is what the former campaign manager for Proposition 8 had to say:

“I certainly hope Proposition 8 did not result in more crime,” said Frank Schubert of the group Protect Marriage. “But if it did, it did so on both sides.”

Um… Really?

Meanwhile, Joseph Storm was sentenced this week. You remember Storm; he was the guy who used his “Yes on 8” sign (and his fists) to beat a guy wearing a “No on 8” button.

Can’t you just feel the love?

Some Thoughts on the Challenge to Prop 8

Most pundits who listened to the California Supreme Court hearings challenging the constitutionality of Proposition 8 came away with the impression that the court would side with the defense on the proposition itself (i.e. let the marriage ban stand) but would refuse to invalidate the marriages of those same-sex couples who wed between June 16 and November 4, 2008.

However, such a split decision may give rise to more questions than it resolves:

Two Classes

By allowing some gay couples to remain married and denying other gay couples from getting married, there are then two groups of couples that are treated differently under the law for no functional reason. This could give rise to two classes of gays (those same-sex couples with recognition and those without) and the possibility of a challenge under the US Constitution’s equal protections clause.

Having two classes of gay couples is, according to some law scholars, a stronger arguement for equal protections than having all gay couples treated alike.

Foreign Marriages

Those foreign (non-Californian) same-sex couples who married elsewhere and moved to California present unique questions.

Presumably, those who married in, say, Massachusetts and then moved to California all within the four month window would be treated similarly to those who married within the state. And we assume that those who married elsewhere prior to June 15 and then whose marriage became legal within the state upon June 15 will be the same.

But what about those who married in Massachusetts on July 15, 2008 (within the marriage recognition window) but did not move here until after the election? Presumedly the State of California recognized their marriage on their wedding day, but is it recognized now? Does one have to have been in California during the recognition period to have a legally recognized marriage?

And what of those who spent time in the state during the window – say a three month residency – and then moved away? Suppose they return; were they married here at that time and now not married here now?

Or what of those who never spent time here but whose marriage would have been recognized had they done so? When they visit today, are they penalized to non-married status because they didn’t visit the state during a four month window last summer?

Federal Response

Currently there is a federal lawsuit challenging DOMA’s refusal to recognize state marriages in Massachusetts and Connecticut.

Their very valid argument is that states have always defined marriages and are specifically granted that right by the US Constitution and 200 years of interpretation. If the courts in Connecticut or the legislature in Vermont elect to define marriage as being between two men, the federal government is exceeding its authority to refuse recognition.

And, indeed, this is a convincing argument. State marriage laws differ greatly from state to state and the feds always leave it up to the states.

But should the federal courts overturn that portion of DOMA that denies recognition to same-sex state-authorized marriages, there is no argument that it should extend to other non-marriage arrangements. Nor, indeed, should it; the states define what is marriage and what is some other thing.

You then end up with a situation whereby the State of California has some same-sex couples with the thousand or so federal rights and protections and some with none of them. This further exacerbates the “two classes” argument.

In fact, though I did not hear any of our counsel argue this point, I believe it may be an adequate cause for the CA Supreme Court to refuse to let the “it’s only nomenclature” argument sway their thinking.

What Was No on 8 Thinking?

I don’t know if the folks running California’s No on 8 campaign saw this letter. They should have. It’s been on the Internet since July 29, 2008:

As the Democratic nominee for President, I am proud to join with and support the LGBT community in an effort to set our nation on a course that recognizes LGBT Americans with full equality under the law. That is why I support extending fully equal rights and benefits to same sex couples under both state and federal law. That is why I support repealing the Defense of Marriage Act and the “Don’t Ask Don’t Tell” policy, and the passage of laws to protect LGBT Americans from hate crimes and employment discrimination. And that is why I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states.

For too long. issues of LGBT rights have been exploited by those seeking to divide us. It’s time to move beyond polarization and live up to our founding promise of equality by treating all our citizens with dignity and respect. This is no less than a core issue about who we are as Democrats and as Americans.

Finally, I want to congratulate all of you who have shown your love for each other by getting married these last few weeks. My thanks again to the Alice B. Toklas LGBT Democratic Club for allowing me to be a part of today’s celebration. I look forward to working with you in the coming months and years, and I wish you all continued success.

Barack Obama had spoken against Proposition 8 during his campaign, while hedging that he was not “for” same-sex marriage. That last position was exploited by the Yes on 8 campaign in ads targeting the African-American community which implied that Obama opposed Prop 8.

The Bay Area Reporter quotes Steve Smith of DeweySquare, a Democratic consulting firm, as saying yeah, they screwed up:

Smith also acknowledged that the campaign should have used then-presidential candidate Barack Obama’s stated opposition to Prop 8. Instead, little use was made of Obama’s opposition in a letter last June to the Alice B. Toklas LGBT Democratic Club, and right before Election Day the Yes on 8 campaign sent out a mailer featuring Obama’s image and quotes that he is opposed to same-sex marriage.

“That was a close call,” Smith said. “Maybe we should have.”

Smith said that people outside the Bay Area wouldn’t know what the Alice Club was, but club Co-Chair Susan Christian spoke up and said that in fact, Obama’s letter to the club been widely reported, including in the New York Times.

“I think we lost this campaign because of an approach that didn’t recognize ‘we are everywhere,'” Christian said.

Yes on 8 didn’t win the election. No on 8 lost it.

[Hat tip: Michael Petrelis]

Justice Chin’s Proposition

In the debate over whether Proposition 8 should be overturned, Justice Ming Chin asked few questions. But there was one that he presented to both sides:

Would it not be a both a consistent with the court’s ruling In Re Marriages and with Proposition 8 for the State of California to provide that because marriage is restricted solely to heterosexuals and because California cannot discriminate against homosexuals then therefore the State can recognize no marriages? And does this court have the purview to make such a declaration.

Both sides agreed that this would be a legal remedy. Ken Starr, in defending Prop 8, argued that the court would have no such right to make such a declaration.

Arguments on Proposition 8 Are Being Presented

Shannon Minter is arguing for the overturning of Proposition 8.

UPDATE

It is not always possible to deduce from the direction of the questioning how justices will vote. But to me it seems that Judge Kennard is not impressed by our requests to overturn Proposition 8. Kennard did vote in our direction In Re Marriage Cases.

Judge Corrigan was successful in establishing a question to be answered: “Does a definition of a revision include those efforts to remove a fundamental right from a suspect group”. Though Corrigan is commonly believed to be a lesbian, she did not decide in favor of In Re Marriages.

LA Times: Prop 8 Will Likely Be Upheld

The California Supreme Court is scheduled to hear arguments over a lawsuit challenging Proposition 8 this Thursday. The court is then required to rule within ninety days. The Los Angeles Times is reporting that the Court may rule as early as Thursday to uphold the constitutional amendment banning same-sex marriage:

Reporting from San Francisco — The California Supreme Court may reveal Thursday whether it intends to uphold Proposition 8, and if so, whether an estimated 18,000 same-sex marriages will remain valid, during a high-stakes televised session that has sparked plans for demonstrations throughout the state.

By now, the court already has drafted a decision on the case, with an author and at least three other justices willing to sign it. Oral arguments sometimes result in changes to the draft, but rarely do they change the majority position. 

The Times reports that Chief Justice Ronald M. George is the one to watch on this. He wrote the May 15, 2008 majority opinion which originally granted same-sex marriage. That ruling was a narrow 4-3 decision. According to The Times, most analysis expect the court to have just votes to uphold Prop 8, since only one justice is needed to shift from the original decision. The three dissenting justices from the 2008 position already held that the votors should decide.

A large outdoor jumbo screen will be erected outside the San Francisco Civic Center, where large crowds are expected to gather to watch the live hearings taking place at the nearby Supreme Court headquarters.

NAACP Calls For Prop 8 to Be Overturned

The National Association for the Advancement of Colored People has joined the California chapter in calling for Proposition 8 to be overturned:

“The NAACP’s mission is to help create a society where all Americans have equal protection and opportunity under the law,” said President [Benjamin Todd] Jealous. “Our Mission Statement calls for the ‘equality of rights of all persons.’ Prop. 8 strips same-sex couples of a fundamental freedom, as defined by the California State Supreme Court. In so doing, it poses a serious threat to all Americans. Prop. 8 is a discriminatory, unprecedented change to the California Constitution that, if allowed to stand, would undermine the very purpose of a constitution and courts – assuring equal protection and opportunity for all and safeguarding minorities from the tyranny of the majority.”

…”The NAACP has long opposed any proposal that would alter the federal or state constitutions for the purpose of excluding any groups or individuals from guarantees of equal protection,” said Chairman [Julian] Bond. “We urge the legislature to declare that Proposition 8 did not follow the proper protective process and should be overturned as an invalid alteration that vitiated crucial constitutional safeguards and fundamental American values, threatening civil rights and all vulnerable minorities.”

The NAACP statement urges passage of House Resolution 5 and Senate Resolution 7, which would put the legislature on record as viewing Prop. 8 as an improper alteration of the California Constitution. The question is currently before the California Supreme Court, which is expected to hear arguments on March 5.

LDS Prophets’ Latest “Revelation”: Church Gave $190,000 To Pass Prop 8

When supporters of Prop 8 went to Federal Court to try to block the public release of the names of late donors, they said that their move was to protect individual donors from harassment. Now we know the real reason Yes on 8 had to try to circumvent California’s open campaign finance laws. In fact, Yet On 8’s chief benefactor had 190,000 reasons to fight the release:

Mormon church officials, facing an ongoing investigation by the state Fair Political Practices Commission, Friday reported nearly $190,000 in previously unlisted assistance to the successful campaign for Prop. 8, which banned same-sex marriage in California.

The report, filed with the secretary of state’s office, listed a variety of California travel expenses for high-ranking members of the Church of Jesus Christ of Latter-day Saints and included $20,575 for use of facilities and equipment at the church’s Salt Lake City headquarters and a $96,849 charge for “compensated staff time” for church employees who worked on matters pertaining to Prop. 8.

The Mormon church had been under investigation by the Fair Political Practices Commission for failure to report its contributions as required by law. The investigation was prompted by a complaint filed by Fred Karger, of Californians Against Hate.

IRS regulations barred from endorsing political candidates, but they allow churches and religious groups to campaign and contribute on behalf of issues. When doing so, churches are required to report their contributions just like every other donor. They are also required to report and attach fair market dollar values to “in-kind” donations, which consist of services and activities provided directly without charge by a donor that a campaign would otherwise have been required to pay for.

Until yesterday, Mormon church had denied any direct financial support for the campaign. I guess some of the Mormon prophets in Salt Lake City had one of their famous “revelations” last night.