THE LONG ROAD STAYS LONG

Some quick thoughts this morning.

First, it is really hard to believe it's been an entire year since Obama's election. I'll say this much - in politics (as it is in sports), it's more fun playing offense than defense. The 2010 midterm elections are likely to be a clusterf--- of remarkable proportions but at least we have a year few months before we'll be subjected to how those races will shape up.

Second, the passage of Maine's Prop 1 is dispiriting (not to mention surprising) and suggests that the road ahead is still long. The one bright spot is to note that a 4 point differential is slim enough that you can imagine that as American voters undergo a generational shift, it will shrink year by year.

I thought TNC had some good points to make here. He's interested (in this post) in debating the idea that those voting against gay marriage are not, in fact, bigoted. And Coates turns to the history of the Civil Rights Movement and the tenacity of White voters to hold onto Jim Crow voting practices and suggests that the same "logic" that defended those White voters from accusations of racism is similarly in place regarding anti-gay marriage voters. To wit:

"Hence the notion that those voting against gay marriage, are not actually, in the main, motivated by bigotry, but a belief in tradition and family. But very few people would actually ever describe themselves as bigots. We think we know so much about ourselves. This is a country--like many countries--which is deeply riven by ethnic bias, gender discrimination. And yet we don't seem to know any of the agents of that discrimination."

I would add one thing, because I've been reading Andrew Cherlin's The Marriage Go-Round and that is, when it comes to issues around marriage, Americans are caught up in a way that few other Western nations are. And what it is notably about this debate is that while there's likely a larger number of people opposed to any kind of state-sanctioned homosexual union, it's really the term "marriage" that makes the biggest difference here (and as Cherlin suggests, only here relative to other, similar nations). Therefore (and this is my conclusion, not Cherlin's per se), what would have to change socially is that both/either 1) the definition of marriage expands to include gay couples and/or 2) our premium on marriage subsides. I would suggest both are happening but I'm curious to ponder which (if any) is moving "faster". My guess is the former; I think marriage is still a widely held value and ideal amongst Americans but I think, over time, there has been less and less priority put on the idea that marriage is exclusively a heterosexual institution.

--O.W.

IOWA COURTS LEGALIZE GAY MARRIAGE

Gay marriage ban ruled unconstitutional by Iowa court - Los Angeles Times

Unlike California, Iowa's legislative process will require a more concerted effort than a simple 50.1% ballot proposition. It'll be interesting to see if the political will is going to be strong enough there to sustain an amendment to invalidate the ruling.

--O.W.

ON THE APPALLING PASSAGE OF PROPOSITION 8

Separate and Unequal

Needless to say, I am ecstatic about the presidential election and will write later about what President Obama's election means to me.

But the passage of Proposition 8 -- along with other anti-gay initiatives in Arizona, Arkansas, and Florida -- is seriously dampening my celebration.

A majority of Californian voters just granted new fundamental civil rights to egg-laying chickens while stripping fundamental civil rights away from loving gay and lesbian human beings.

November 4, 2008 -- rightly heralded as a national civil rights milestone -- also marked the first time that a state has stripped away a marriage-related civil right to a discriminated minority group after initially granting it.

As someone who has studied the judicial branch's handling of sexual orientation and the law, I can confidently predict that no state or federal court will get in the way of Proposition 8.

Which is to say, unless California voters pass a new initiative that reinstates gay marriage, gay and lesbian Californians will never again have the right to marry.

(There is a strong legal argument that the 18,000 gay marriages that took place over the last few months will remain valid, however, as the language of Prop. 8 does not include any intent to apply retroactively.)

I know that Gloria Allred is filing a lawsuit to stop Prop. 8, but her suit is unlikely to invalidate the initiative. Unlike Prop. 22 in 2000, Prop. 8 amends the state constitution; thus, there's essentially no argument that Prop. 8 violates state law.

Moreover, there is no viable legal argument that Prop. 8 conflicts with the U.S. Constitution or any federal law. Sadly, not one federal court has interpreted the Equal Protection Clause to require marriage equality for gays and lesbians. Keep in mind that under federal law, there is no right to be protected, for example, against hiring discrimination by an anti-gay employer. It would require some seriously "activist" Supreme Court justices to read a right to gay marriage into the Constitution.

Theoretically, Congress could pass a law mandating marriage equality that is intended to preempt state law. But the chances of that happening are about the same as Sarah Palin's chances of dominating on Jeopardy.

Thus, for now, Proposition 8 represents a nail in the coffin for full gay and lesbian equality in California.

Although dispirited, I remain optimistic, however, that we will eventually see full equality again in California.

This will require a new smartly-worded initiative, a better-organized movement, more money, and only an incremental shift in public opinion. (It was close, after all.)

Since we've seen the successful scare tactics of the fundamentalists' Yes on 8 campaign, any new initiative should probably make clear that places of religious worship will not be required to offer gay weddings.

For those who are with me on this civil rights struggle, we have a lot of work to do.

---

(OW chimes in)

Junichi, thanks for that informative - though sobering - reality check. I do want to add something here...

I've noticed that some people seem to forget that Prop 22 passed just eight years ago and, to me, it says a lot that, collectively, Prop 22 actually has been forgotten. The idea of gay marriage is prevalent enough to - on the one hand, spark a reactionary backlash as we've seen - but it's also common enough that we take its possibility for granted.

The other thing worth noting is that Prop 22 passed by a massive margin: 20+ points whereas Prop 8 is going to get by on just 4 points. I don't think you can really quantify tolerance but a five fold decrease in opposition to gay marriage in just eight years seems something worth thinking about.

Back when Prop 22 passed, I said, despairingly, to a few friends that "gay marriage will never happen in our lifetime" and one of them chided me to pay attention to the long view and see just how far things had come, even despite that evening's results and I think it's worth thinking on this too in our moment of discouragement.

The beauty of the state initiative system which is also its curse is that, in any given year, who knows what will come to the fore? And there's nothing stopping a well-organized campaign from putting the acceptance of gay marriage on next year's ballot.

And the next year's ballot.

And the next year's ballot.

Until that 4 point spread is gone.

American social justice has never taken a path of linear progress. There are always set-backs and resurgent periods of reactionary behavior. But I think this issue is winnable - absolutely winnable - with better organizing and better education especially in communities of color. As some of the exit polling has shown, the single-most community that came out for Prop 8 were African Americans - at 70%! - and the Latino community was also largely in favor of it too (~55-57%). Strikingly as well: the counties that voted against it, overwhelmingly, were the best educated in the state. No county where less than 10% of the population had bachelor's degrees (~20) voted against it.

So there's work to be done but this is not an impossibility (least of all in a state as mercurial as California). I think there's every reason to think that within the next eight year cycle, we'll see gay marriage legalized in California.

Junichi, a question for you: you think there'd be a state movement to outlaw any form of civil union that essentially grants the same rights to non-hetero couples?

--Junichi

MORMON MONEY TO BURN

Toilet paper for Mormons?

I understand why someone would donate every penny he or she has to strike down California's Proposition 8. At stake is the marriage of friends, the basic human rights of many Californians, and a symbolic dignity and equality that gays and lesbians have long been denied. I have now donated more to the No on 8 campaign than I have to any other political cause and I wish I could afford to give more.

While I fundamentally disagree with those who support Proposition 8, I also understand why someone might vote for it.

What I don't understand is why people would collectively donate at least $28.2 million to support California's Proposition 8, especially when the evidence suggests that much of those donations are coming from people outside the Golden State.

Interestingly, but nor surprisingly, most of those donations are coming from out-of-state Mormons. According to this article, Mormons may account for 70% of the Yes on 8 donations from individuals.

How do we know this is true? For starters, you can learn the name of every Mormon donor and his or her hometown by visiting the website mormonsfor8.com.

The public nature of these donor lists explains why we now know that San Jose's Michele Sundstrom and her husband, who have been married for 18 years and have five children, donated $30,000 to the Yes on 8 campaign.

$30,000 from one family? In this economy? Why?

I understand why one might donate $30,000 to a candidate who will lower capital gains taxes.

I understand why one might donate $30,000 to an initiative that increases funding for research that might cure her child's fatal disease.

I even understand why one might donate $30,000 to an anti-abortion initiative that could save the lives of unborn children.

But donating $30,000 so that two women or two men can't say they are "married" in the state of California, even though they already have the right to live with one another, become domestic partners, collect benefits, and adopt children?

And this is all organized by a church whose former unrecognized marital practices forced its followers to flee anti-Mormon persecution spreading along the Eastern seaboard?

Best case scenario: The Sundstroms are worried that their religious beliefs will be increasingly challenged by outsiders. But even if this is true, they must know that even if Proposition 8 fails, there is no chance that the government will or can force the LDS Church - or any religious group - to change its religious views or host gay weddings. (Otherwise, the Catholic Church would have long ago been enjoined from banning marriages between Catholics and Protestants, for example.)

So what motivates a Mormon family of seven to donate $30,000? If anything, the attention that their donation is receiving is likely to put more effort into people questioning the tax-exemption status of those churches that are using their funds to organize political campaigns.

Maybe Michele Sundstrom is a millionaire and $30,000 is just a drop in the bucket. But even if I had that kind of dime to drop, I would have to be deleriously high on opium to donate my child's first year med school tuition to pay for more Yes on Prop 8 commercials.

Interestingly, the Chronicle article points out that the Mormons' efforts are starting to backfire, especially with the sunshine laws that make the mormonsfor8.com website possible.

When two women found out about the Sundstroms' $30,000 donation, they "parked an SUV in front of their home, with the words 'Bigots live here' painted on the windshield."

That bold act seems to have delivered a message to Michele Sundstrom, who now seems to be a step closer to understanding the pains of gays and lesbians against whom she is fighting: "There must be such deep, deep, deep hurt; otherwise there couldn't be so much opposition," she said. "They've lived with this. I guess we're getting a taste of where they live."

--Junichi

YOU KNOW IT'S A STRANGE ELECTION WHEN CIVIL RIGHTS ACTIVISTS ARE HOPING FOR A LOW TURNOUT IN THE BLACK COMMUNITIES

Not Loving the Next Loving v. Virginia?

Question: Why might some progressive forces in California be secretly hoping for a low black and brown voter turnout in this upcoming November election?

Answer: Because they believe that the African American and Latino communities are more likely to vote to outlaw gay marriages and, therefore, could tilt the balance in favor of Proposition 8, which would overturn the California Supreme Court's recent ruling recognizing gay marriages.

So says this New York Times article, which assumes the truth of the underlying assumption that African American and Latino voters are more homophobic.

But I question whether that assumption is still correct today.

It wouldn't surprise me if it was true twenty years ago.

I also have no doubt that homophobia remains a rampant problem in those communities.

But it's also a problem in Asian American circles. And Native American circles. And Arab American circles. And white circles. And Democratic circles. And triangles. And quadrilaterals.

Back in 2000, the exit polls for California's Proposition 22 (which banned gay marriage) didn't reveal significant discrepancies between racial groups. Admittedly, Latinos were slightly more inclined to vote for Prop 22 than blacks, who were slightly more inclined to vote for it than Asians and whites. But the differences were minute and the majority of all groups supported the initiative.

Moreover, exit polls from similar state initiatives in 2004 and 2006 didn't reveal any racial disparities in gay marriage-related voting patterns, except in Georgia.

(This LAT op-ed even points out that "blacks in Arkansas, Kentucky, Michigan, Mississippi, Ohio and Oklahoma were at least one percentage point less likely than whites to vote for them, according to CNN exit polls.)

So where is the proof that black and Latino voters in California are more likely to support anti-gay initiatives like Proposition 8? Has anybody seen a survey or poll that confirms that?

Are the MSM and electoral pundits merely assuming that, say, Busta Rhymes' (in)tolerance for gays and lesbians reflects the outlook of the entire black community?

I'd obviously like to believe that people of color now recognize the common link between the anti-miscegenation laws of yesterday with the anti-gay marriage laws of today.

--Junichi

A HUGE DAY FOR CIVIL RIGHTS

Kate Kendell. Hero.

Today's unexpected California Supreme Court decision legalizing gay marriage in In re Marriage Cases is equally magnificent and monumental.

The impact is far more than symbolic. For starters, I imagine that today will be a record day for California couples becoming formally engaged.

As I think of all my friends who move a step closer to full equality as a result of the opinion, I stand at the edge of imagining what it might have been like in 1954 to hear about Brown v. Board.

By far, the most significant paragraph of the monstrous 172 page decision is this part of the majority opinion:

A number of factors lead us to this conclusion.

First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.

Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.

Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.

Finally, retaining the designation of marriage exclusively for opposite sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise - now emphatically rejected by this state - that gay individuals and same-sex couples are in some respects "second-class citizens" who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.

Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

The second sentence above is a perfectly rational and reasonable conclusion. And yet, it almost sounds revolutionary, now that I've become accustomed to the right-wing bat-sh!t crazy talk about how committed gay couples will destroy the institution of marriage.

A few other observations on the decision:

• The importance of this opinion extends far beyond gay marriage. In deciding that the correct standard of review for sexual orientation discrimination cases is "strict scrutiny," the California Supreme Court will make it incredibly more difficult for any employer or government entity to enact any rules that deny the GLBT community any rights, fundamental or otherwise.

• Nonetheless, Chief Justice George took painstaking steps to ensure that every part of the opinion was carefully drafted to make clear the boundaries and preempt criticism. For example, he stated that no religion will be required to solemnize gay marriages. He also wrote that the Court's decision "does not affect the constitutional validity of the existing prohibitions against polygamy and [incest],” which is a sad but necessary response to the conservative cuckoos who argue that gay marriage will lead to, among other things, the legalization of sex with horses.

• My quick read of the opinion suggests that the only way this decision can be reversed is if there is a state ballot initiative amending the state constitution that says that "same-sex couples shall be denied the right to marry." The language would likely have to be more explicit than Prop. 22 in its intention to harm the LGBT community. In my opinion, such an initiative, assuming it gets on the ballot, would be rejected, albeit by a slim margin. Public opinion in California is clearly shifting toward recognizing gay marriage. Plus, there's a difference between voting for a pre-existing ban vs. voting to take away rights that gay couples will have in 30 days. Finally, even if such an initiative passes, there's a valid argument that it will still be considered invalid based on conflicting language in the state constitution.

• I'm a tad disappointed that the majority rejected the argument that the marriage laws at issue did not constitute gender discrimination. For me, if the right to marry a woman depends on whether you are a man or a woman, that is gender discrimination. But the Court rejected that as a semantic argument. Of course, none of this matters now that sexual orientation discrimination will be treated the same (in California) as race or gender discrimination.

• One of the dissents dismissed the majority's decision as "legal jujitsu." Justice Baxter, why must your insults involve Japanese arts? I resent that ethnic slur, your honor. Plus, jujitsu is kinda awesome.

• Interesting fact: three out of four of the Justices in the majority were appointed by a Republican governor.
  

I think a healthy amount of credit should go to SF Mayor Gavin Newsom, whose election I fiercely opposed when I lived in SF. I take back every bad thing I ever said about you, Mr. Mayor. You have my full respect.

Finally, to the homophobes currently in the Golden State, here's hoping you move to Nevada.

--Junichi