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New Field poll: Prop 8 will be short for this world… one way or another

Background Press

by Brian Leubitz

Today, the Field Poll released their latest study on California opinions regarding marriage equality (PDF). It’s good news on the whole, with a slight majority favoring marriage equality. But there are some caveats:

The poll’s results – 51 percent in favor, 42 percent opposed, 7 percent undecided – show big differences among age groups, geography and party affiliation.

The results were close to those the Field Poll found in May 2008, six months before voters banned gay marriage by approving Proposition 8, 52 to 48 percent.

The current survey also found that support for same-sex marriage drops below a majority when voters are given another option – civil unions.(SacBee)

So, yes, there is 51% support, but that support is soft. Basically, we are back where we were two years ago. Prop 8 repeal can pass, but there is still a lot of work to be done. This time we have to run a better campaign to get our message out, be proactive and not just respond to the other side’s phony attacks. And of course, talk with our fellow Californians directly. We can, and should, win in 2012, but it will not be easy by any stretch of the imagination.

Of course, there’s still this Prop 8 trial going on, so I’ll just take a look at what one of the big California-centric pundits had to say. Dan Walters is the big California columnist at the Sacramento Bee. While I frequently disagree with his take on governance and other issues, he does offer an interesting perspective. But in today’s column, he just misunderstands the law. From today’s Bee:

In a manner of speaking, however, Joseph Tauro, a federal judge in Boston, beat Walker to the punch when he declared that the federal “Defense of Marriage Act,” which prohibits the federal government from recognizing same-sex marriages, is unconstitutional.

Although Tauro’s ruling was a victory for the gay rights movement, its legal basis could, ironically, undercut the lawsuit against Proposition 8. Tauro declared that Massachusetts had the authority, as a matter of states’ rights, to decide whether to recognize same-sex marriage, and the federal law “offends” those rights.

Logically, if Tauro is correct and the feds cannot overrule Massachusetts same-sex marriage laws as a states’ rights matter, neither could they overturn California’s anti-gay marriage law, Proposition 8. (SacBee)

From a simple reading of a summary of the cases, that would appear to be the case, but once you delve into the law, that sort of fades away. Judge Tauro’s decision actually strikes down Section 3 of DOMA under two constitutional provisions. First, he does it under the more expected Fifth Amendment of the Constitution, ruling that DOMA has no rational basis. This is the first of the two combined cases, the Gill v OPM case.

It is very clear that this part of the two decisions is clearly not a setback whatsoever. This decision argues that the marriage ban on same-sex couples violates the Bill of Rights. The Fifth Amendment has generally been considered to apply most of the Fourteenth Amendment equal protection jurisprudence to the federal government. In other words, the fifth amendment equal protection clause in Gill is, for our purposes, functionally the same as the fourteenth amendment’s protections in the Prop 8 case. Rather than hurting the challenge to Prop 8, Gill affirmatively argues for Prop 8 to be struck down.

Now, to the Massachusetts case, there the court says that the federal government cannot block the states from defining marriage as they wish due to the Tenth Amendment. Now, first, let’s just say that this part of the ruling is on some shaky legal footing. While some of the TEA-baggers are fond of the tenth amendment, it simply doesn’t have much standing in the legal world. The tenth is rarely enforced in any substantive way, and this component of the case very well may well get some new reasoning on appeal if it is upheld. In some exceptional cases, the federal government has been batted down as over-reaching. But the bar is high, and essentially applies only to Congressional action, in other words, legislation.

The final point here is that the Equal Protection Clause applies to both the states (14th) and the federal government(5th). Whether or not the federal government has a right to tell the states through legislation how to define marriage, the states still have no right to violate the equal protection clause. So, long story short, far from being a back-handed gift to the proponents of Prop 8, the DOMA decision supports the plaintiffs case in Perry.

To bring it back around…Prop 8 is going to be short for the California law books, whether it goes down via judicial action or electoral.

53 Comments

  • 1. Lesbians Love Boies  |  July 20, 2010 at 9:32 am

    There was also an article today:

    Did Justice Ruth Bader Ginsburg Just Force the Supreme Court to Approve Gay Marriage?

    Read more: http://www.queerty.com/did-justice-ruth-bader-gin

  • 2. Ann S.  |  July 20, 2010 at 9:40 am

    There is so much to like in Justice Ginsburg's opinion.

  • 3. nightshayde  |  July 20, 2010 at 9:51 am

    Having nothing to do with this particular topic, but …

    Would one of the moderators (or whatever person can edit posts) please take a look at the previous thread and figure out where the "end italics" code needs to go? My eyes are going buggy from all the comments being italicized.

    Thanks!

  • 4. nightshayde  |  July 20, 2010 at 9:54 am

    Was there any sort of public outcry over gaining equality for interracial marriages back in the 60's, or was that whole process handled through the courts?

    It really chaps my hide to hear BB trying to equate the right to discriminate with the civil rights movement. I wish someone would publicly call him on that nonsense (since posts made on nomblog which don't support discrimination don't seem to get through the filters).

  • 5. Harriet Forman  |  July 20, 2010 at 9:55 am

    In response to Brian: From your mouth to G-d's ears! So be it.

  • 6. Lesbians Love Boies  |  July 20, 2010 at 10:27 am

    +1

  • 7. Bob  |  July 20, 2010 at 10:30 am

    Harriet, that's got to be the best quote of the day

  • 8. Ann S.  |  July 20, 2010 at 10:30 am

    I don't know if there was public outcry (I was 10), but the polls strongly supported the ban on interracial marriages back in 1967 when the SCOTUS decided Loving v. Virginia. And yet the nation didn't come to a screeching halt at that decision.

  • 9. eDee  |  July 20, 2010 at 10:37 am

    I AM STILL absolutely floored that gay marriage was even an issue in California. I know I live in Maine and all, but here we pretty much thought that everyone in California was gay. It also shocked the hell out of many of us that we almost won in Maine, where you’re born and raised homophobic.

    ANYWAY, as I read through the article above – this Amendment, that Amendment. It reminds me of a card game I used to watch my male cousins play as children. They would lay down a card with a cartoon character on it and one cartoon character card would beat out another cartoon card – almost like a card version of rock, paper scissors – there was always a card that would beat out another card – kinda like all these Amendments and the interpretation of those Amendments, we have some that we like, they have some that they like and around an around we go until someone is holding all cards.

  • 10. JonT  |  July 20, 2010 at 10:47 am

    (Objednání)

  • 11. Bolt  |  July 20, 2010 at 11:00 am

    Agree!

  • 12. Bolt  |  July 20, 2010 at 11:11 am

    That was very interesting, and eye opening. While I don't understand the legal jargon, the part about conduct and status was interesting.

    "Our decisions have declined to distinguish between status and conduct in this context[.]"

    According to her, the christianist group wasn't focused on the sexual aspect of a LGBTQIA joining their group, but on how we identify. It is a level of comprehension that is light years over my head, but she has a thorough understanding of sexism.

    So, did the proposition 8 facilitators repeal our right to marry because they don't like icky poop sex, or because they don't like the LGBTQIA's "status?"

    Ginsburg seems to know, and the other signers seem to agree.

  • 13. Mark M  |  July 20, 2010 at 11:14 am

    LOL
    Granola-land, the land of Fruits, Nuts, and Flakes

  • 14. Bob  |  July 20, 2010 at 11:17 am

    "declined to distinguish between status and conduct"

    very interesting, I've been having dialog with a Church , about what they describe as the difference between, being a homosexual, may not be a choice but acting on it is they say my sin is that I practice my homosexuality, hmmmmm
    I say only time that's going to change is when I'm dead

    till then I'll happily keep practising homosexuality

    Oh but I forgot , this is a secular court house, and on this count the church is separate from the state

  • 15. Kathleen  |  July 20, 2010 at 11:28 am

    An interesting observation about the difference between the 'two sides' in the so-called culture wars, illustrated in an entertaining fashion. Check out this video, beginning at 2:40 http://www.youtube.com/user/ScorpioJJ420#p/u/5/ga

  • 16. RebeccaRGB  |  July 20, 2010 at 11:39 am

    The thing is, the poll before Prop 8 was voted on showed pretty much the exact same results – a very slim majority (opposed to Prop 8 / in favor of equality). Needless to say the scales tipped at the very last minute.

  • 17. RebeccaRGB  |  July 20, 2010 at 11:43 am

    You want the video link, not the channel link: http://www.youtube.com/watch?v=gagAzkY060I

    *sigh* Looks like YouTube is now following Facebook's lead of completely screwing up URL's, making it impossible for people to share the correct one. :P

  • 18. Richard A. Walter (s  |  July 20, 2010 at 12:26 pm

    Yes, the life of Prop H8 will be short, but even one day of civil rights being taken away is one day too many.

  • 19. Ray in MA  |  July 20, 2010 at 1:00 pm

    Back to Providence… this proves I was there!
    http://www.facebook.com/photo.php?pid=1902224&amp

    I'm still overwhelmed by the whole event!

  • 20. Kathleen  |  July 20, 2010 at 1:07 pm

    Is that you, Ray? How great to see a photo!!!

  • 21. Ray in MA  |  July 20, 2010 at 1:17 pm

    Yup, I signed my poster "Ray in Ma" so I could find PamC…was a hoot to really meet someone from here! (and she's as nice as she posts)

  • 22. Richard A. Walter (s  |  July 20, 2010 at 1:23 pm

    Yes, being a living part of history in the making seems to have that effect, doesn't it, Ray? BTW, are you on FB?

  • 23. Owen  |  July 20, 2010 at 3:20 pm

    Yeah, you were way, way off. I don't live in California, but aside from Los Angeles, I know that there's a lot of conservatism in southern Cal. We mostly hear about LA and the Bay Area, but there are so many cities like Riverside or Palmdale that aren't like that at all.

  • 24. Kathleen  |  July 20, 2010 at 4:33 pm

    Thanks for this comment, Brian. People still seem to have a hard time grasping the notion that a ruling saying the feds must defer to the individual states for a definition of marriage doesn’t mean the states can restrict marriage in a way that violates basic constitutional guarantees.

  • 25. Bolt  |  July 20, 2010 at 4:46 pm

    Personally, I would prefer it be struck down through the court system. There is something tacky about spending money, and asking for permission via votes, to get married. Nobody else has had to do it, and neither should we!

  • 26. Wade@MacMorrighan.Ne  |  July 20, 2010 at 4:57 pm

    Why isn't anyone asking Marriage Equality opponents and NOM supporters, in the face of their talking points, why they believe that they ought to or deserve the right to vote on the private lives of their fellow American's and their relationships? And, what is it they believe gives them this right? We need to instill in them that they are bad citizens for demanding this "right"!

  • 27. ĶĭŗîļĺęΧҲΪ  |  July 20, 2010 at 5:26 pm

    I don’t believe in these elections anymore, never really believed we can win our nationwide equality at the ballot box — because it is way too easy to overturn the next year, and the attempts will always occur.  This is why we need a court decision, the one that will not allow the issue to be on the ballot anymore, the one that will ensure we won’t have to live every day in fear of being thrown back into the pit we came out thinking the war is over.  Scalia is wrong thinking the society must make these decisions and courts should stay away.  This is why they build courthouses — to protect those who are being abused by the majority rule.  And this is exactly why we are in courts today!

  • 28. Bolt  |  July 20, 2010 at 5:58 pm

    That is exactly what I almost commented on, but it would have been a big statement to unpack.

    The NOM doesn’t bother me too much these days. Their power is diminished. They had their chance to put their rhetoric to the test in the Perry v. Schwarzenegger trial, and all they could produce was “channeling.” Channeling is the only reason, according to them, that proposition 8 must survive this court challenge.

    They’re so over, and out. They don’t have any power, or control, over our lives in California. Once we’ve nailed this court challenge down, and I know we will, we can have the same rights and privileges that everyone else has, but on a national level!

  • 29. Lesbians Love Boies  |  July 20, 2010 at 6:46 pm

    Great video Kathleen. And, very enlightening.

    “40 is still young when you talk about the republicans.” < That was funny.

    I would love to see both games in their entirety.

  • 30. JustLurking  |  July 20, 2010 at 7:41 pm

    We all followed the Prop8 trial eDee,

    Looks to me that not only do we hold almost all the cards…but their players just keep dropping out as well!

  • 31. Cat  |  July 20, 2010 at 8:14 pm

    The study also shows an important nuance: only 44% are actually in favor of full marriage equality, 34% favor civil unions, and 19% are opposed to any kind of legal recognition. That probably means that the 34% portion can be swayed by either side depending on the information they get.

  • 32. Kathleen  |  July 20, 2010 at 8:25 pm

    Haha. Shows how observant I am. I so look forward to being able to meet some of the wonderful TTers here.

  • 33. Lesbians Love Boies  |  July 20, 2010 at 8:31 pm

    http://www.youtube.com/watch?v=OBHv5KROue0

  • 34. Mark M  |  July 20, 2010 at 8:54 pm

    That’s Great!!! Nice to put a face to the posts!

  • 35. PamC  |  July 20, 2010 at 10:27 pm

    Here's my wife Cathy & I (I'm holding the theocracy poster)–we loved meeting you, too, Ray.

    Kathleen–I really like the diaspora site, and thought that that would be a great name for the gay community (or rainbow tribe, as bob likes to call us!). Would be great if the P8TT could have a big get-together — or maybe our own cross-country bus tour (!)….

  • 36. PamC  |  July 20, 2010 at 10:28 pm

    http://www.facebook.com/photo.php?pid=1902224&amp

    duh…

  • 37. PamC  |  July 20, 2010 at 10:29 pm

    Well that didn't work so well. If you go to Ray's picture and click "previous", you'll see our picture.

  • 38. Richard A. Walter (s  |  July 20, 2010 at 11:32 pm

    You are so right there, Wade.

  • 39. Richard A. Walter (s  |  July 20, 2010 at 11:42 pm

    That would be great. Who's up for meeting in DC on August 15th?

  • 40. JonT  |  July 21, 2010 at 1:19 am

    I so look forward to being able to meet some of the wonderful TTers here

    Hehe, me too.

    Almost makes me tempted to sign up on FB, which I have deliberately avoided for some time.

    Almost. :)

  • 41. JonT  |  July 21, 2010 at 1:27 am

    I don’t know how you do that Wade. For them, we are not asking for equality.

    For them, we are automatically wrong – there is no issue about them voting on our civil rights, because we are perverts and do not deserve any. Our goal is the corruption of children, the destruction of society, and ultimately the human race.

    And, what is it they believe gives them this right?

    The Holy Bible, apparently.

    Really – that’s how these nomo’s see it. you cannot convince them that they are wrong – they believe that they alone have the absolute truth (TM) of the universe on their side.

    Asking them questions like “What right right do you have to oppress me?’ … It’s not even a debatable question for them. Their religion gives them that right.

    BTW: Welcome to P8TT! :)

  • 42. Kathleen  |  July 21, 2010 at 1:28 am

    You could always wait for Diaspora:
    http://www.joindiaspora.com/blog.html

  • 43. Wade@MacMorrighan.Ne  |  July 21, 2010 at 2:51 am

    Thanks, John, but I've been here before. My User ID was either something like "Wade" or merely "MacMorrighan". ;o)

    But, if NOM keeps insisting that it's not a religious issue, why to their supporters keep bringing up religion in defense of so-called "traditional (Civil) marriage"? The two don't go together. In fact, they literally seem incapable of divorcing the two in their minds.

    I, for one, would love to talk to a Psychologist who has studied and had a peer-reviewed paper on the subject published on the subject of those who discriminate and victimize others, then cling to the Victim-label as soon as those that they are victimizing speak out against them. Is there a name for this pathological behavior? What about those that are BEHAVING as bigots, yet deny that they are bigots? Would also be fascinating to have an objective Psyche. analyze many of Maggie's talking points that she is using at her speeches to rally up her troops–getting them to believe and say the same things, rote.

  • 44. Ronnie  |  July 21, 2010 at 8:09 am

    Who's your Daddy?……heehehehehe…sorry I couldn't help it…. ; )

    <3…Ronnie

  • 45. Lesbians Love Boies  |  July 21, 2010 at 8:18 am

    Supreme Court May Have Left Another Judicial Time Bomb

    http://www.lipmantimes.com/?p=13986

    Personal Note: They need to fix the problem with the two pictures of Justice Ginsberg in the article…

  • 46. Richard A. Walter (s  |  July 21, 2010 at 9:25 am

    There was a Toby Keith song by that name a few years back, Ronnie. (hint, hint) LOL

  • 47. Ronnie  |  July 21, 2010 at 9:41 am

    Not a Toby Keith fan…but here you go…<3…Ronnie:
    http://www.youtube.com/watch?v=TVRzk3VWOKY

  • 48. Lesbians Love Boies  |  July 21, 2010 at 1:24 pm

    Interesting read on this subject:

    Is God your daddy? Does that shape your view on gay marriage?

    http://content.usatoday.com/communities/Religion/post/2010/07/gay-marriage-god-proposition-8-religion-/1

  • 49. JonT  |  July 21, 2010 at 1:28 pm

    @Wade: ‘..but I’ve been here before….

    Sorry :)

    As for the rest of your post – good questions. I would love to see some answers to those as well. :)

  • 50. Lesbians Love Boies  |  July 21, 2010 at 4:27 pm

    oh, yes, hint hint…love that song!

  • 51. Richard A. Walter (soon to be Walter-Jernigan)  |  July 21, 2010 at 4:59 pm

    Thanks, Ronnie.♥ ♥ ♥ ♥ ♥ ♥

  • 52. Lesbians Love Boies  |  July 22, 2010 at 4:15 am

    This is a very interesting article on this subject:

    God and Prop. 8: New Poll Holds Surprises on Gay Marriage
    Latino Catholics support gay marriage in greater numbers than even mainline Protestants.

    “If you think of God as personal then you wonder, ‘What does God say about this?’ and that then determines how you feel about it. But, if God is a force in the universe, then people tend to understand that force as one for good, for love, a positive force. Then it’s incumbent on the human to interpret what is good, what is love, what is positive? That leaves a lot more room for human freedom to determine in a particular moment in time, ‘What does God desire of us?’”

    Read More: http://www.religiondispatches.org/archive/sexandg

  • 53. Lesbians Love Boies  |  July 22, 2010 at 5:25 pm

    Another Poll

    This week’s Economist/YouGov poll

    • Nearly two out of three Americans support the repeal of “don’t ask, don’t tell”. (Even 50% of Republicans favour repeal of the policy.) By a margin of 52% to 48%, Americans think the current policy has a more negative impact on preparedness, unit cohesion and morale than any change in policy would.

    • A majority also favours official recognition of same-sex couples, but just 37% support allowing same-sex marriage. (I was somewhat suprised to see that 44% of Republicans support civil unions or gay marriage.)

    http://www.economist.com/blogs/democracyinamerica/2010/07/polling_2

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