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Archives – May, 2011

Prop 8: What can we do while we wait?

By Adam Bink

A common refrain I hear from activists in our community is that they feel when things are in the courtroom, they are “out of our hands.” Sometimes people feel that way because they are unsure of how these legal battles work or feel like Judges/Justices won’t listen to them anyway since they are supposed to be impartial.

When we launched our Testimony video challenge on Monday, Dustin Lance Black aptly said,

These judges, and these justices, they do not work in a vacuum, they don’t live in a bubble; they pay attention to the newspapers, to the television, to what’s happening in Washington, DC. So now more than ever we must make it clear that all Americans are moving towards equality for all LGBT people.

To that end, yesterday attorney Laura Brill, who has worked on amicus briefs on the topic, wrote in the OC Register about what people can do:

The public awareness raised through the federal lawsuit is no substitute for the dignity and power that would have flowed to gays and lesbians in California and their supporters by winning back equality through political organizing and the democratic process. This is true even though our basic rights, dignity, and equality should not be up for popular vote in the first place.

In answer to the common refrain, “But what can I do?” the answer is, a lot. Here are five actions anyone can take that will hasten the end of Proposition 8 once and for all so that we will not have many more anniversaries like today.

1. Contact California Attorney General Kamala Harris. Thank her for not appealing the federal ruling striking down Proposition 8 and tell her you support her decision.

2. Work to repeal the Federal Defense of Marriage Act by urging your senators and members of Congress to support the Respect for Marriage Act of 2011. In the battle over Proposition 8, supporters of the measure argued that marriage rights were largely symbolic because Californians have a right to enter domestic partnerships. With the Defense of Marriage Act barring federal rights, many believed this argument. Eliminating DOMA will take away the faulty argument of those who backed Proposition 8.

3. If you have rejected someone important to you, in large or small ways, because they are gay or lesbian or transgender, consider a change. Accept your friend or family member for who he or she is, and try to set things right.

4. Support organizations like Lambda Legal, which has been around for 40 years and has worked tirelessly to achieve marriage equality and comprehensive relationship recognition throughout the country. Lambda Legal won the two most significant U.S. Supreme Court cases to protect LGBT rights, Lawrence v. Texas and Romer v. Evans, won a unanimous decision protecting marriage rights in the Iowa Supreme Court, and won with a coalition including the ACLU and National Center for Lesbian Rights, the California case that allowed 18,000 couples to marry in California before the passage of Proposition 8.

5. Support comprehensive reform of California’s initiative process so that debacles like Proposition 8 cannot happen again. Except to repeal or amend a constitutional amendment already passed by a simple majority (like Proposition 8), Californians should refuse to support initiatives that try to amend the state Constitution by simple majority vote. Combined with a repeal of Proposition 8, such a step can help to restore the state Constitution to an instrument of “permanent and abiding” character, as the state Supreme Court described it more than 100 years ago. And if we begin to treat the state Constitution like it matters, we may end up with the state Constitution we deserve.

Very aptly put. I will note on the 5th suggestion, here in DC we have a Human Rights Act on the books, passed a long time ago, for precisely the moment when our opponents would try to put marriage on the ballot after the law was signed by the Mayor. The system worked: the DC courts said no.

I will add one more suggestion:

6. Have what we call a “Courageous Conversation” with a friend or loved one or colleague about marriage equality. I always like to think of each person as having their own circle of influence. You never know, your uncle could be the next person polled in a CNN poll of 1,000 people on marriage. He could be asked about the topic as his weekly bowling league, and the five people listening to him might be influenced by his opinion.

What else should be on the list?

23 Comments May 27, 2011

Evening equality round-up, May 26th, 2011

By Adam Bink

A few items of note:

  • Michael Bloomberg is, in many ways, the man responsible for electing many anti-marriage Republicans and restoring the so-far-unanimous-in-opposition-to-marriage-equality Republicans to the State Senate majority, having donated hundreds of thousands of dollars to Republican Senate committees and causes. A simple example is Frank Padavan:

Senator Frank Padavan, another Queens Republican who is likely to face a Democratic challenge, said that the mayor has personally assured him that he would work for his re-election if necessary.

“He’s made it very clear that he wants to see me stay in the Senate,” said Mr. Padavan.

Padavan was re-elected in 2008 with Bloomberg’s help, and went onto vote against marriage equality in 2009, before being targeted for defeat by Fight Back NY and other activists in the 2010 election and was replaced by marriage equality supporter State Sen. Tony Avella.

That said, Bloomberg has started to make amends by working to enact same-sex marriage in New York State, most notably with a major speech at Cooper Union today. Duncan Osborne at Gay City News has the story and remarks.

We are still stuck at 26 Senators publicly in support of equality, and have not moved from there since the results of the 2010 elections were made clear. Not a single Republican is publicly in favor. I would be delighted in Bloomberg could leverage them. Joe Sudbay makes a good point that it’s more about money than words, sometimes.

  • The Advocate publishes an op-ed from our own Rick Jacobs, explaining the reasoning behind what is now nearly 200,000 customers asking Orbitz to stop advertising on Fox. Meanwhile, Perez Hilton rips Orbitz for their name-calling.
  • Chris also went to witness a DADT training at Quantico, which is a large Marine base just outside DC in Virginia. A really interesting piece to see how the military is doing this and how people react. Keep in mind that prevailing wisdom is that the Marines tend to be the most conservative branch.
  • Update I forgot to mention, Sen. Cardin informed us he will co-sponsor DOMA repeal, bringing the # of co-sponsors of the Respect for Marriage Act to 25 plus Sen. Klobuchar.

What are you reading?

10 Comments May 26, 2011

Prop 8 update: Judge Walker excused from June 13th hearing

h/t to Kathleen

By Adam Bink

The Court issued a short statement excusing Judge Walker from the hearing (which grants Walker’s request) as a result of Walker writing the Court and returning the tapes:

On April 28, 2011, the Court issued an Order setting hearing on Motion, and ordering anyparty in possession of a copy of the trial recordings to appear at a June 13, 2011 hearing and showcause as to why the recordings should not be returned. (See Docket Item No. 772.) On May 12,2011, through his counsel, now retired Chief Judge Walker returned the trial recordings to the Court.(See Docket Item Nos. 777, 784.) Having returned the trial recordings, and because he is not a partyto the case, Judge Walker’s appearance at the June 13 hearing is no longer required.

10 Comments May 26, 2011

Whether Prop 8 proponents undermined their own case and Cooper’s slippery slope

By Adam Bink

Is a question examined by Bob Egelko in yesterday’s San Francisco Chronicle:

Now, as the sponsors of Proposition 8 try toconvince the courts that the judge who overturned the measure had a built-in bias as a gay man with a longtime partner, their opponents are invoking that same campaign message: If Prop. 8 was meant to preserve opposite-sex marriages, they argue, then any judge, gay or straight, would have the similar conflict of interest.

In their latest court filing, the measure’s supporters reply that they never promoted Prop. 8 as a benefit for married couples – just for society as a whole.

“Our argument is that adoption of same-sex marriage will likely harm the institution of marriage over time, not that any individual’s existing marriage will be affected,” said Charles Cooper, lawyer for the Prop. 8 campaign committee, a conservative religious coalition called Protect Marriage.

“The notion that all married heterosexual judges have a direct and substantial personal interest in the outcome of this case is, of course, patently absurd.”

By contrast, Cooper argued, Chief U.S. District Judge Vaughn Walker could have taken advantage of his own ruling to marry his partner of 10 years. The Chronicle first reported Walker’s sexual orientation during the trial in February 2010, but he publicly confirmed the relationship only after retiring from the bench this February.

“No judge may hear his own case,” Cooper said Monday in a filing with the Bay Area’s new chief federal judge, James Ware. Ware has scheduled a June 13 hearing on whether to set aside Walker’s August 2010 ruling – which found that Prop. 8 discriminated on the basis of sexual orientation and gender – because of the judge’s alleged hidden bias.

Theodore Boutrous, a lawyer for two same-sex couples and a gay-rights group that challenged Prop. 8, said the measure’s sponsors were contradicting their campaign message that heterosexuals needed protection from same-sex marriage.

“It’s a stunning admission that all the arguments they were making before are completely baseless,” he said.

The record is somewhat less clear. In written post-trial arguments to Walker, for example, Cooper said Californians supported Prop. 8 “because they thought it would strengthen the institution of marriage and … because they thought it would benefit children.”

Campaign advertising was less subtle, including the “protect our children” slogan in a commercial that showed a Massachusetts schoolgirl excitedly telling her parents that she had just learned “I can marry a princess.”

Monroe Freedman, a Hofstra University law professor and scholar on legal ethics, said Tuesday that the Prop. 8 campaign undercut the distinction Cooper was drawing between gay and straight judges.

Based on the campaign message, Freedman said, “any heterosexual has a problem (judging the case) because his or her marriage or future marriage is threatened … because the children are threatened.”

Another ethics expert, Stephen Gillers of New York University, disagreed. Even though the Prop. 8 campaign urged Californians to defend traditional marriage, he said, “it doesn’t mean that any married judge feels the need to be defended” and would have a stake in the outcome.

Even so, Gillers said, an unreported long-term, same-sex relationship should not be grounds for disqualifying a judge. Since Walker could have married his partner in California before Prop. 8 passed, and could marry him today in a number of states, Gillers said, “his decision has no consequence to him.”

Cooper et al certainly opened up a can of worms that, on the whole, has many law experts, editorial boards, and observers across the nation wondering where his line would be drawn.

We’ll be covering the June 13th hearings live, and I certainly hope Cooper is asked whether an African-American (or non African-American) can judge a civil rights case, whether a woman can judge a case on pay discrimination, and so forth. Did Cooper create a slippery slope, and where does it lead?

36 Comments May 26, 2011

Equality California Town Hall in WeHo Split on Repealing Prop 8

Originally published at LGBTPOV.com

P8TT friend and journalist Karen Ocamb, whom many including myself consider to be among the finest journalists covering LGBT affairs, does another thorough piece on the EQCA town hall on Sunday night in West Hollywood. The entire piece really is worth a read for interviews, interesting tidbits of information, and analysis, including the legal situation, the polling, and positions of other organizations present.

For coverage of the San Francisco town hall, see JPMassar’s pieces here and here. Courage’s Arisha Michelle Hatch will also be writing a piece with her thoughts on the West Hollywood town hall, coming soon. -Adam

(Editor’s note: I have tried to present here what happened at the EQCA town hall in West Hollywood Sunday night, May 22, as fairly as possible to provide those not able to attend any of the repeal Prop 8 discussions as much information as possible to make up your own minds. I’ve also included some information about new ED Roland Palencia. – Karen Ocamb)

By Karen Ocamb

Andrea Shorter, Ron Buckmire, David Codell (Photo by Karen Ocamb)

By the time the Equality California organizers took a final vote on whether the LGBT community in Los Angeles wanted to go back to the ballot to repeal Prop 8 in 2012, two hours had elapsed and about half the crowd of about 100 people had left. Of those who stayed in the West Hollywood Park auditorium Sunday night, 21 people favored returning to the ballot, 16 voted no, and roughly 15 others raised their hands for some version of “undecided.”

The turnout for EQCA’s town hall meeting – the second of 14 planned throughout the state – was apparently larger than the San Francisco crowd on Thursday, May 19, according to original Prop 8 plaintiff Robin Tyler who has worked with Marriage Equality USA.

The meeting was held just days after a new Gallup poll reported that a majority of Americans now support marriage equality. But residual angst and animosity from the passage of Prop 8 in November 2008 and frustration from the twists and turns in the federal Prop 8 case was palpable.

Here’s how the meeting played out in West Hollywood:

EQCA’s Marriage and Communications Director Andrea Shorter opened the meeting saying the lobbying group was following up on a promise made in the hectic wake of the passage of Prop 8 to come back to the LGBT community before making any recommendations on how to proceed with a future initiative.

The town hall panelists – who refrained from offering their opinions about going forward with a 2012 ballot initiative – were: David Codell who has been EQCA’s lead attorney and has successfully litigated cases representing same sex couples; Occidental College Associate Professor Ron Buckmire, a blogger and co-founder of the Barbara Jordan/Bayard Rustin Coalition, an EQCA coalition partner; and EQCA Interim Executive Director Jim Carroll, who presented the findings of a new David Binder poll on Californian’s attitudes towards same sex marriage.

In his Aug. 12, 2009, 32-page analysis of whether to go back to the ballot in 2010 or 2012/2014, then-EQCA

Marc Solomon and Evan Wolfson from Freedom to Marry (Photo by Karen Ocamb)

Marriage Director Marc Solomon, who is now with Freedom to Marry, concluded saying:

Now it is our turn. We get to go at the time that is most advantageous for us—when the numbers tell us we have a strong chance of prevailing; when we’ve had sufficient time to do the real work to move voters our way; when we have a solid plan for raising the money required; and when our partners doing the hard work in communities of color think sufficient progress can be made. Our community of LGBT people and allies get to make the choice that is best for our community, the choice that our heads, hearts, and guts together tell us is right.

After months of listening, analyzing, and soul-searching, we at Equality California are confident that time is November, 2012.

As Solomon noted in his report, going back to the ballot was contingent upon a number of factors, some of which – on the face of it – seem to have been addressed. On the other hand, no one (except perhaps the founders of the American Foundation for Equal Rights) could have foreseen the impact of the May 27, 2009 filing of a federal lawsuit challenging the constitutionality of Prop 8 with star litigators Ted Olson and David Boies.

The Legal Situation

At the town hall meeting, David Codell tried to help frame the 2012 ballot initiative debate in the context of the AFER federal Prop 8 lawsuit. He repeatedly emphasized that gay people “won the right to marry” and deserve Equal Protection and Due Process under the Constitution. “We shouldn’t have to do this,” he said. “The question is – how are we going to become equal under the law, even though we already are?”

Attorney David Codell (Photo by Karen Ocamb)

Codell asked the audience to bear in mind that:

there has never been a statewide measure voted on by the people of a state in which gay people have ever gained any protection under the law. We need to understand that if we were to go to the polls and were we to win the right to marry under the law in California, it would be the first time ever that there was a statewide initiative in this country in which gay people gained any right under the law. I won’t go into the history of gay rights initiatives but we need to bear in mind that it’s never happened before and that we need to think deeply about what kind of resources we have – financial and inside ourselves – to go back and have this state have a conversation about our rights under the law.

Codell noted that oral arguments are scheduled in September before the California Supreme Court on the issue of standing for the proponents of Prop 8:

If the California Supreme Court rules that [the five individual Prop 8 initiative proponents] don’t have standing under California law to step in and force the state of California to appeal a District Court verdict [by now openly gay Judge Vaughn Walker] that Prop 8 violates the US Constitution…then they probably will not have standing [in federal court] and this case will come to an end with a ruling that Prop 8 is unconstitutional.

If the California Supreme Court says they do have some kind of standing to step in and substitute on appeal for the state, then this litigation could go on for years and years.

So I think the question we’re facing today is what do we do as a community when 1) the courts right now are not requiring gay couples to marry, even if we ultimately may win this case. It’s going to be years before any gay couple can marry here in California because as long as this litigation continues, no one is being permitted to marry. So we need to think about how long is too long? Prop 8 was enacted in 2008. This litigation could go on for years more.

And then secondly, if there is some desire by the community to go forward and do something different, how does litigation effect that calculus?

Codell clerked for Supreme Court Justice Ruth Bader Ginsberg, who ruled against 9th Circuit Court of Appeals Justice Reinhardt on an Arizona case in which Reinhardt wanted to grant standing to initiative proponents. Codell

American Foundation for Equal Right’s Brandon Hersh (rt) attended with Evan Sippel (Photo by Karen Ocamb)

said of the 9th Circuit, where the Prop 8 case is now:

I think we’re in good hands in the 9th Circuit. We are in front of some very good judges who are carefully considering this. And, as difficult as it may be to have to sit and wait and see what the courts do, I think we all need to have confidence that the courts are doing the right thing. It takes a long time, it’s frustrating. But …I think we need to trust that the California Supreme Court is giving careful consideration to this issue….

I think we need to decide as a community whether we have support to get this measure passed. I think that’s the question. Can we pass this? If we can, we should try. If we can’t, we shouldn’t. And I don’t think any judge will be swayed by the fact that this thing is hanging out there and we shouldn’t want them to be….

There is actually no case law providing standing to these ballot initiatives. The legal arguments here are really complicated. They have to do with very technical court decisions. But what’s striking is that there is no case ever that gives these ballot initiative proponents the right to do what they’re trying to do – which is to appeal a federal court judgment when the District Court has said that the law violates the US Constitution and the Attorney General and the Governor have said we will not appeal. We agree this violates the US Constitution. If we lose this case in the California Supreme Court, it will be yet another example of a Bush versus Gore kind of case where the law is made up for the case….That happens to gay people, though, so don’t be surprised.

If we win in the state Supreme Court, I think it’s likely that gay couples can then begin marrying and that the state officials would not pursue any course that would prevent that. However, we would be walking into a no-man’s land….

If Prop 8 is overturned, then all the litigation is over. And we would go into la-la land.

Codell said that he can’t wait to see what he assumes will be a “very angry decision” by the judge in the case seeking to overturn District Court Judge Walker’s Prop 8 ruling because Walker is gay and in a longtime same sex relationship.

In a subsequent interview, Codell told me:

I generally don’t make public predictions about how courts will rule in cases in which I am involved. What I will say, however, is that if the California Supreme Court were to hold that initiative proponents are not authorized to represent the State by filing an appeal from a district court ruling invalidating an initiative and do not have a particularized interest in the initiative’s validity, then the Ninth Circuit should hold that the proponents of Proposition 8 do not have standing to appeal.

I think it is likely that, regardless of how the 9th Circuit rules, there will be a petition to the U.S. Supreme Court seeking review. I’ll decline to predict whether the Court would take the case.

[But] if the Supreme Court were to review this case, the Court would likely issue its ruling by June of the term in which it hears the case. Were the Court to take the case, it would likely be heard and decided in the October 2012 term — meaning that a decision would likely be issued by June 2013.

Codell added, for good measure: “I don’t have a position on the ballot issues. I am still in listening mode.”

EQCA’s Andrea Shorter and activist Robin Tyler (Photo by Karen Ocamb)

During the question and answer period, longtime activist Robin Tyler said she is angry, frustrated, and doesn’t trust the Supreme Court. But, she said:

“if we can wait, I believe they’re going to rule in our favor. And I think if we raise another $20-or-$40 million and lose again or even won again, somebody will go back on the ballot – the Mormon Church, the Catholic Church. So I think we should wait. But I don’t think we should just wait for the court to rule. I think somehow we need to keep organizing.”

I asked if EQCA anticipated another initiative if the EQCA/Sen. Mark Leno California FAIR Education Act is passed and signed into law. The bill – which mandates teaching about LGBT people and historical contributions in public school alongside the contributions of other minorities – was designed to “inoculate” against the very successful arguments used by the Religious Right that same sex marriage means children will learn about gay people.

Andrea Shorter said:

We anticipate that there will be some organized pushback. We’re already getting some indications – not so much in terms of an initiative drive but mostly in terms of their selecting and promoting people getting elected to school boards or city council. So we would anticipate – as we should – that they’re going to move along that track. But as far as an initiative campaign at this point – no, there’s no formal movement that we are aware of.

At this point, at about half way through the presentation, Shorter called for hands for who wanted to go back and who didn’t. The vote was about one-third to go back, one-third opposed and one-third undecided.

Jim Carroll presents the Binder Research Poll

EQCA’s Carroll then presented what for some were pretty confusing poll numbers. EQCA joined the Pro-Choice group NARAL and a social justice group – both of which expect ballot measures in 2012 (including one to repeal the death penalty) in a David Binder Research poll. EQCA’s portion was funded with former Ambassador Jim Hormel and Love Honor Cherish. The poll was conducted in English and Spanish from May 10-14 and presented to EQCA on May 19. It was based on 900 likely voters with a base sample of 800 voters and an oversample of 100 voters, half from the 50 African American community and half from the Asian and Pacific Islander community. (Greg Matsunami from API Equality later noted that many in the 12% Asian community have limited English proficiency, which makes it hard to communicate the equality message, especially with religious groups). The sample also included cell phone voters who no longer have landlines. The margin of error was 3.3% points

Carroll explained that most public polls survey adults instead of voters and surveys that only focus on likely voters

EQCA Interim Director Jim Carroll (Photo by Karen Ocamb)

often underrepresent young voters who are more likely to support marriage equality. The folks most likely to turn out to vote tend to be more white, church-going and older – hence, more conservative.

The first of three questions Binder asked was: Do you strongly favor, somewhat favor, somewhat oppose, or strongly oppose allowing same-sex couples to be legally married? The answer shows a closely divided California: 45% favor, 45% oppose with 10% unsure.

However – the result also shows a slight DECREASE in support for legalizing same sex marriage from 47% in May 2009 to 45% in May 2011. But at the same time, opposition has also decreased from 48% in May 2009 to 45% in May 2011. The undecideds, meanwhile, have increased from 5% in 2009 to 10% 2011.

Republican opposition has softened a bit – but over 30% of Democrats still remain opposed. The critical Independents still remain virtually the same, given the margin of error – from 55% supporting in 2009 to 53% supporting in 2011. Their “don’t know” margin has increased 4 points from 6% in 2009 to 10% in 2011.

Younger voters have increased support while older voters are more undecided. Under age 30 voters went from 66% in 2009 to 71%; voters ages 30-44 remained virtually the same with support hovering around 50%. People ages 45-64 kept the same support at 43% – but their opposition decreased from 53 to 48%. However, support among voters age 65 and older decreased from 37% in 2009 to 34% in 2011. The “don’t knows” increased from 8% in 2009 to 13% in 2011.

Binder reported what we know from other polls: frequency of worship is highly correlated with opinion on same-sex marriage, with strongest opposition from those who worship weekly or more. Those who “hardly ever/never” worship support marriage equality by 65%, compared to 68% who worship once a week or more who oppose marriage equality by 68%.

Another point showed that the frequency of worship is a stronger factor than ethnicity. Additionally – and this got a round of applause in the room – Latino Catholics have made greater strides in the last two years than Catholics overall.

Binder also reported that opposition to marriage equality has decreased among African American, Latino and Asian voters. However – the decrease has primarily moved from opposition to “Don’t Know,” including 4 points among whites. The biggest jump is among African Americans who opposed marriage equality 60% in 2009 but less so – 53% in 2011. The “Don’t knows” grew from 6% to 10%.

Mike Bonin, deputy to LA Councilmember Bill Rosendahl and Courage Camp co-founder, monitored the presentation (Photo by Karen Ocamb)

Binder reconfirmed that voters who are gay or are close to gay people are much more likely to support marriage equality. Someone yelled, “So come out! Come out!”

Voters were also asked about a potentially amended initiative that included a religious exemption: Would you vote yes or no on a ballot initiative that would legalize civil marriage for same sex couples, on the condition that clergy or religious institutions are never required to perform a marriage that goes against their religious beliefs? 47% said they’d support such a measure; 43% said they’d oppose it – showing a 2% increase in support for marriage equality. 10% were undecided.

But here’s where it gets really tricky: some original supporters said they would oppose the measure amended to include the religious exemption. This had many scratching their heads. However, Binder also found that a slightly higher proportion of those who were originally opposed to marriage equality said they would now support the initiative if it included the religious exemption.

Binder calculates that if original supporters of the Prop 8 repeal do not “defect” and they are combined with voters who said would support the measure with the added religious exemption – the support for the amended repeal initiative goes up to 58%, with opposition down to 34% and unsure at 8%.

 

Audience listening to presentation (Photo by Karen Ocamb)

 

 

 

A reminder: EQCA and Sen. Mark Leno introduced a religious exemption bill in the California Legislature – which passed but was vetoed by Gov. Schwarzenegger. I asked Carroll if he knew if Leno would re-introduce such a bill to make that exemption a done deal before a prospective 2012 ballot vote and he didn’t know.

So here’s another confusing point for me: The first take-away from the Binder poll indicates that support for marriage equality among likely voters actually shrunk. John Henning, also from Love Honor Cherish, said he as confused too and asked Carroll to nail down the numbers at the town hall meeting. Carroll said:

Polling is very complicated sometimes and it’s not as straight forward as you think it was. The number of people who said ‘yes’ on they would legalize marriage or they would overturn Prop 8 was 54%. The number of people who said they would support legalized marriage or supporting a ballot initiative that had the religious exclusion, was 58%. The number of people who said that they would legalize same sex marriage or overturn Prop 8 or support a ballot initiative that had a religious exclusion, was 62%. …So, if we just take all of the ‘yes’ votes and them compile them, then 62% of those involved said yes to at least one of the questions.

But that was immediately qualified. Asked if the numbers were hard – Codell just smiled and said, “It’s one poll.” He then repeated his earlier point:

Never in the history of our nation have the voters in the state enacted a measure that would grant gay people a legal right. It has never happened before. And so when you pose this question to people on the telephone, you’re asking a question that people have never had to confront. And it has never happened in this country and so we have to understand the limits of polling.

For context – remember that Prop 8 passed by 52% to 48% (rounded off). Only the LA Times poll in May 2008 predicted that outcome, while the Field and other polls all seemed to indicate that Prop 8 would be defeated. Meanwhile, however, the No on Prop 8 campaigns internal polling by Binder and Celinda Lake consistently showed that Yes on 8 was ahead – though, according to campaign consultant Steve Smith from Dewey Squares, at the very end, the polling was neck-in-neck at roughly 47/48% – until that Yes on 8 ad showing kids going to their teacher’s wedding at San Francisco City Hall. That’s when women in particular swung away from the No on Prop 8 campaign to Yes on 8. Between civil rights and even the remote possibility of something happening to their kids – women would pick kids every time.

I asked if Binder polled on women – but Carroll didn’t have that information. This is key since the LGBT community too often assumes women will automatically “get it” and remain solidly in the LGBT camp. Prop 8 proved that assumption wrong.

Parent Bill Walker (Photo by Karen Ocamb)

Bill Walker, the parent of a then-4 year old daughter, said he understood why people might have voted for Prop 8 if there was the slightest chance that anything would harm a child. But he said his daughter – who was very excited about her dads marrying on June 17, 2008 – was devastated by the passage of Prop 8. “She could not believe that people would do that,” he told me. “It was a horrible loss of innocence.”

Tom Watson – LOVE HONOR CHERISH says go back

Tom Watson of Love Honor Cherish said that since the passage of Prop 8, EQCA and other groups have had a million conversations with people about marriage equality that could aid in the signature-gathering effort.

Watson said that he thought the polling numbers show “strong, significant support” for repeal:

It seems to me the only issue should be this court case. Has that altered the analysis? Equality California said we should go back in 2012. The numbers reflect the ability to win and the chance of success,” he said. “The only new factor we know – that has not gone as we foresaw – we knew after Prop 8 we could have run a better campaign before. We knew after Prop 8 people started coming out who hadn’t come out. We got Bill Clinton to voice support – who we hadn’t had before. All of us know and live the changes in the last couple of years. ‘Glee’ is on the air. We all have observed this and lived this so it seems to me the only issue should be: Does the court case impact this in some way that should make us not seek to do what David said, which was to finally…Look, our opponents say all the time, ’Let the voters decide. Not the courts, not the legislature. Minnesota said last night – even though they have a ban on same sex marriage – they said let’s put a constitutional ban on the ballot. Everybody says, ‘Let the voters decide.’ We need to tell them once and for all – ‘yes, the voters can decide and they can decide our way.’ Take away that argument from the other side. Unless we have 100% confidence in the US Supreme Court is going to do the right thing in a time frame when I can get married and all the other folks here who have not had the opportunity to get married before illness or death seeps in, or in the next couple of years – I think we should go back to the ballot.

Watson received considerable applause from a number of people, many of whom seemed to be part of the group, founded in May 2008. Despite a well-articulated plan (see their Blueprint for Equality) Love Honor Cherish was unable to get sufficient funds for a signature-gathering effort to return to the ballot in 2010.

What about the economy?

Funding and the economic stress felt by voters is another issue to consider during the Prop 8 repeal discussions.

Margaret representing California Faith for Equality (Photo by Karen Ocamb)

Margaret from the Unitarian Universalist Ministry – representing California Faith for Equality, (which is experiencing some upheaval of its own) raised the issue during the town hall meeting, saying her own church in the Valley is in financial crisis. She distributed a position paper that included this point:

Many people, who under less stressful circumstances would provide financial support and volunteer time, are struggling for economic survival and are not able to make marriage equality a priority. In addition to individuals and families, many supportive non-profit organizations and faith communities are also facing financial challenges. We must be good stewards of our resources and recognize these current limitations.

Even though the economy now appears to be in an upswing, much of the national consciousness still hears the echoes of President Obama, just six months in office, saying in June 2009: “We’re still in the middle of a very deep recession,” he said, and “it’s going to take a considerable amount of time for us to pull out.”

But not everyone agrees that the economy should be a factor in the decision about whether or not to return to the ballot in 2012. An LGBT thought-leader who asked to remain anonymous told me:

The economy is still in bad shape. Yet President Obama’s campaign is saying they will raise one billion dollars, breaking all records. If polling shows that our side now has majority support we won’t need to move voters on marriage equality but instead will need to keep them on our side and turn them out to vote. While that will take money, the other side will need to spend as much, if not more, and the economy will impact them just as much. The result could very well be both sides spend significantly less than in 2008 -which benefits our side if the polling shows us with a large lead going in.

Funders are very well aware of the polls. LGBT philanthropist Tim Gill said in April said that while “all options are open,” returning to the ballot with another initiative requires that people “look at what the polls say and the ability to raise the funds.” Gill said it would be “really silly” to begin the process without those considerations. Philanthropist David Bohnett, who gave over $1 million to the No on Prop 8 campaign, told me earlier that that support would have to be around 60% in the polls for him to consider contributing. Meanwhile, the union movement is also under attack and the AFL-CIO told Democrats they need to see more progress before contributing funds. The California Teachers Association and SEIU contributed millions to the No on Prop 8 campaign

But that anonymous LGBT thought leader with whom I spoke later also cites the human cost of waiting:

The cost of discrimination is huge both in the human toll it takes as well as the financial harm it inflicts. When government mandates discrimination against a group of people they are sending a message that the Individuals who are part of that group are somehow less than others. That leads to self esteem issues resulting in an increase in harmful behavior and suicide as well as an increase in bullying and hate crimes. Add to that denial of benefits such as long term care and social security survivor benefits and it becomes clear that the cost to the individuals and society is enormous.

Ron Buckmire of Jordan/Rustin Coalition says don’t go back

Ron Buckmire did not express an opinion while sitting on the panel – only noting that 6,500 door-to-door

Ron Buckmire, center in pink shirt, studying the power point presentation (Photo by Karen Ocamb)

conversations a coalition of people of color groups held need to be tested since the results on a face-to-face encounter might not hold up when someone is asked the same questions anonymously over the phone.

But in a blog “REPORT: Why 2012 Is Not Year To Repeal Prop 8” posted Tuesday, May 24, Buckmire – an Associate Professor of Mathematics, has a different take on the numbers:

WHY TRYING TO REPEAL PROP 8 IN 2012 IS A BAD IDEA

All in all, I went into the Town Hall undecided and left pretty convinced that a 2012 ballot measure campaign to restore marriage equality to California is a bad idea. Especially when there is a pending federal court challenge which may not only restore marriage equality in California but support the legal argument to strike down the 30 other constitutional amendments which ban marriage equality around the nation. There are numerous other states which will likely have anti-gay marriage measures on the ballot (Minnesota, North Carolina and Indiana) and there may be states which have affirmative pro-gay measures on the ballot (Oregon and Maine). For the amount of money it takes to expand California from civil unions to full marriage equality one could have a good shot of winning one or both of the affirmative measures and possibly defeating one or some of the anti-gay measures. Nationally, it just doesn’t make sense to me to spend 30-plus million dollars to enact marriage equality in California when there are states which do not have basic laws banning discrimination on the basis of sexual orientation (29) and gender identity (38). We shall see what happens in the future, EQCA says they will report back to the community in September 2011. LHC says that we can file ballot language and collect signatures before the California Supreme Court rules on the standing issue. Depending on the decision, the signatures do not have to be submitted. I’m not opposed to this idea, but I think it will be very very difficult to not submit the signatures to the secretary of state in March 2012 if the Cal Sup. Ct. or 9th Circuit either doesn’t rule our way.

Lester Aponte, others suggest a ‘Third Way’

Towards the end of the town hall meeting, Lester Aponte raised the idea of what was later called “the Third Way” –

Lester Aponte (l), unknown man, Tom Watson and Robin Tyler discussing the ‘Third Way’ option (Photo by Karen Ocamb)

drafting ballot language, raising money to test the language then gathering signatures – all preparing to submit a ballot initiative in March or April if the courts ruled against the federal challenge and litigation promised to be endless. This was excitedly discussed after the town hall adjourned as something to keep “in our back pockets” – just in case.

Some activists are now hoping the Third Way argument will be officially added to future EQCA town hall meetings.

Remaining issues: FPCC fines, Roland Palencia’s donations to No on Prop 8

There are a couple of other outstanding issues to clear up so as not to be a distraction as the discussions proceed.

In response to a question about whether there is any money left in the bank from the No on Prop 8 campaign, Carroll said there is roughly $400,000 left but hundreds of thousands of dollars may have to be paid in late filing fees to the Fair Political Campaign Committee.

Here is the official full break down from EQCA:

In July 2010 we transferred the balance of Equality for All funds – $197,790 to the EQCA (c4). Equality for All is now closed. The current balance in the EQCA Issues PAC is $471,977, which breaks down as $280,180 from EQCA Issues PAC funds and $197,790 in EFA funds.

EQCA was elected by the Equality for All committees to handle all outstanding money to pay anticipated campaign financing costs and all actions have been transparent, says Cary Davidson, the just retired chair of EQCA’s board and legal counsel for Equality for All.

In a phone interview from New York City, Davidson explained the byzantine world of campaign finance reporting that resulted in the possible substantial fines to both sides after an audit by the State Franchise Tax Board. He said the statewide ballot initiative was as complex as the presidential campaign.

The Proposition 8 campaign was the largest grassroots ballot initiative ever in the history of the state of California. There were huge numbers of contributions – so much so, both the Yes and No sides crashed the Secretary of State’s website,” Davidson said. “As a result, all different kinds of reports were required to be filed – many within 24 hours – whenever the contribution received was over $1,000 or more. That was applicable to in-kind contributions as well as monetary contributions.

So, if someone through a big house party or provided resources to the campaign – those in-kind contributions had to be disclosed within 48 hours of receipt of the contribution. It was very difficult for the campaign offices and the people keeping track of contributions throughout the state to compile all the reports, sort through them and file them in a timely manner. Additionally, reports could be held up by checks being contributed by someone signing their full name one time and only an initial and last name another time, or failing to include other required information. The clock starts ticking when the credit card is swiped or the check is received by anyone from the campaign. And considering that checks might be made by one committee fundraiser that then funnels the bundled checks to a larger committee that then sends the checks to the office of the campaign Treasurer – even with all the new technology, Davidson said it is “unrealistic” to expect full compliance in the time allotted.

“I’m hoping the Fair Political Practices Commission will understand the complexity of this campaign – for both sides – and decide not to access fines for these types of reports filed late,” Davidson said. “I trust they will realize that the vast majority of all contributions were properly reported.”

Incoming EQCA Executive Director Roland Palencia (Photo by Karen Ocamb)

That leads to the final point to clear up. In my interview with Roland Palencia, I accepted his point that he participated in the Obama campaign and regretted not participating more in the No on Prop 8 campaign. As I remember – and Ari Gutierrez of HONOR PAC and Latino Equality Alliance has since confirmed – Palencia volunteered some time in the HONOR PAC East LA office. The Bay Area Reporter, however, went a little further, prodding him about if and how he participated in the No on Prop 8 campaign. Palencia said he’d written “several checks” to the campaign, which prompted blogger Michael Petrelis to scour all the different campaign finance reporting data bases and find no contributions from Palencia.

Other LGBT reporters also checked and either found nothing or eventually found a $50 check. What might have otherwise be considered a minor mistake by a new executive director getting his feet wet in a new media-centric state was made more complicated by simultaneous story about Palencia’s friend, Assembly Speaker John A. Perez who had questions raised about the veracity of his resume.

I interviewed Roland after the EQCA town hall meetings, where he was greeted by strong applause when introduced. Since he doesn’t assume his new job as executive director until July, Palencia sat in the sidelines and listened.

After when asked to clear up whether he contributed checks to the No on Prop 8 campaign when none could be found, Palencia said that he wrote “some checks,” not “several checks.” He also repeated that he was not involved in that campaign:

“Well, first of all I said I was not as involved as I wish I had been involved. And I think it’s important for me to acknowledge that. So I’m looking whether I gave checks directly to the campaign, or if I gave to other groups.”

EQCA Communications Director Vaishalee Raja, who was there for part of the interview, said EQCA’s Finance Director Steve Mele “went on I think the Sec. of State’s site and found a check for $50.” She later said Palencia contribute $50 to HONOR PAC on June 20, 2008 – which was three days after the marriage equality was available to all same sex couples in California. She also provided a screen capture of a record for $50 on Oct. 19, 2008 to the Equality For All campaign, albeit from the EQCA records rather than the SoS site – and said that Palencia gave $50 to API Equality at an LA fundraiser for No on Prop 8 – also on Oct. 19, 2008. Palencia said he told BAR about the $50 check to API Equality.

This underscores the problems Davidson discussed about campaign finance reporting in California. Palencia’s check to HONOR PAC was on June 20. Prop 8 had just qualified for the ballot on June 2 – but there was a challenge that wasn’t settled until July 16 so while Palencia may have thought he was contributing to No on Prop 8 via HONOR PAC, there was uncertainty at the time if the proposition would officially make it to the ballot. And note that Palencia’s $50 to API Equality – and to EFA were posted as received on the same day, Oct. 19, 2008. That was probably the same check – but since it was under the $100 reporting threshold, it took some time to find it in the maze of data on the Secretary of State’s database.

This is an important lesson to bear in mind about jumping to conclusions as we approach yet another hectic campaign season: data might not show up instantly through our favorite or even expert databases.

If you can’t attend one of the remaining EQCA town halls on repealing Prop 8 – the group is holding an online town hall on: Thursday, June 09 06:00 PM – Back to the Ballot? – Town Hall Meeting | Online

PERSONAL NOTE: My sincere apologies to Tom Watson of LOVE HONOR CHERISH for mis-identifying him in an earlier version. For some reason, I kept thinking the name of the extraordinary – now retired – West Hollywood City Clerk Tom West. I don’t know why.

23 Comments May 25, 2011

It Gives Me Hope

Another interesting piece from “on the ground”, this time from Anonygrl. As usual, if you’d like to submit a guest piece for publication, send it with links/HTML to “prop8trial AT couragecampaign DOT org”

We at Courage Campaign are going out to our members in targeted districts. After you finish reading, if you’re a New Yorker, please remember to give your State Senator a call! A vote could happen at any time in the next few weeks -Adam

By Vienna Hagen, aka Anonygrl

On my way back from the Capitol building in Albany, New York, where the religious right wing group, Family Research Foundation, was trying to convince people of weird things on their “Mayday for Marriage” tour, I took an informal poll.

In the interest of avoiding run on sentences, I will talk about the weird things first.  One guy, Robert Brodus, who is running for US Senate, revisited his theory that gay marriage is a slippery slope leading to a time when men will marry robots.  I kid you not, this is what he said, out loud, with witnesses, and in a way that indicated he thought this was a serious problem we should be concerned about.  And people in the audience, maybe 150 or so of them, applauded him for it.  Another rehashed the utter nonsense that gays shouldn’t be allowed to marry because they die younger and have more diseases and their children all grow up to be alcoholics and drug users.  The crowd, average age about 60, ate it up with a spoon.    There were a group of Hasidic Jews carrying printed signs that indicated homosexuality kills.  Ruben Diaz was there, blathering on about something that I, quite frankly, had to tune out, or run the risk of being forced to throw heavy objects at him.  Another guy, whose name I missed, told the crowd that they should encourage the President to defend DOMA, and to not repeal DADT (apparently he didn’t realize it was a done deal?) because DADT was the “first item on the homosexual agenda” and would lead to the downfall of western civilization.  One speaker told the crowd that the reason not to pass marriage equality was because it would lead to gays discriminating against THEM.  He went on to explain that if marriage was legal, organizations like Catholic Charities would be discriminated against when they refused to hire homosexuals.  They would be discriminated against when they refused to adopt to gay couples.  They would be discriminated against when they discriminated against others, pretty much.  And marriage equality was what would make it happen.   He talked about all the licensed professions in New York (doctors, therapists, social workers and so on) that would somehow be corrupted by gay people and intimated that marriage would be the key to homosexuals getting these licenses.  Apparently the people in the crowd were raised without a modicum of common sense, because they BOUGHT this load of horse manure.  I struggled to see what this guy’s through line was, but could not figure out how he made that connection.  According to one speaker, watching Disney movies gave the gay community the idea that they could “marry a mermaid, or become a woman if they were a male or a man if they were female.”  That is what he said.  We are convinced we can marry mermaids.  It seems that the people there didn’t worry so much that this idea, and the robot marriage thing and a lot of other tripe made absolutely no sense whatsoever, if it was an old white guy in a suit standing up on a platform with a microphone saying it, it was good enough for them.  Better still if it was an old white guy in a suit with a clerical collar and brandishing a Bible.

That was the nonsense.  The good news for me was that, while there was no organized protest, there were a lot of people, random every day people, state workers, people who had happened by and stopped to see what the fuss was, and so on, who were standing outside the crowd and shaking their heads in disbelief.  I spoke to a number of them and they all, to a person, said,  “These people are crazy.  Let them get married!”  A few were more vehement, some objected to the idea that these folks were trying to shove religion at everyone, some were vocal, one lovely girl had a sign that she told me she had gone back home to make because she didn’t see any signs against this nonsense.

A lady named Elaine came up to the lovely girl and I as we had just started chatting and was wearing a sticker from the rally, but indicated that she wasn’t really entirely with them.  She introduced herself as pro-life, although she understood about abortions in cases of medical necessity, said she was with Rachel Ministries, a group that runs a website and ministry that is pro-life, but that she really wanted our opinion on what was going on.  She also mentioned a couple of lesbians that she knew who said to her at one point “If they do discover a ‘gay gene’, will the pro-life supporters change their mind about aborting those fetuses?”  I said that WE would not, but I thought that this crowd certainly would.  Elaine was of the same opinion and that was something that worried her quite a lot.

One guy had a sign that read “Homosexuality is curable.”  I said, “No, actually, it is not.  But bigotry is.”  This made a guy I was sitting next to at the time laugh, and we got to talking.  He was a state worker, and he had taken a long lunch to come out and see what these folks were up to, and he was disgusted by it.  There was another fellow, with the rally, it seems, since he was wearing a sticker, who was sitting next to us and listening to the ensuing conversation.  A speaker was talking about the New Jersey church, that whole tax status thing, and saying, “I bet your home town would LOVE to tax the land your church sits on!”  I was explaining that whole pack of lies to the state worker, but the other guy was listening.  The speaker went on about the adoption agency “forced” to close and I filled my friend in on the actual details of that one.  I also pointed out that the religious right has a VERY limited set of stories they use, and all of them are misrepresenting the truth.  After the rally broke up and small groups went in to lobby senators (without appointments, just going to walk up and down the halls, so unlikely that they got in to see many at all), several people approached me to hand me religious literature.  I attempted to refuse, but it became easier to simply accept it and turn it into confetti (my collection got rather unwieldy until I located a trash can).  None of those passing out literature seemed inclined to stick around and discuss it with me, it was all hit and run.

But then the guy with the sticker who had been sitting next to me came up and said, “I can see you are on the other side, and I don’t want to argue with you, but I also don’t want to just hand you something and run off.”  I told him I appreciated that, and he said,  “I don’t believe everything these guys say, that robot marriage thing, for instance, but I do believe some of it.”  I asked him to explain what he did believe.  He said he thought that marriage between a man and a woman was a good thing.  I told him I agreed completely.  It IS a good thing, I, and the rest of the LGBT community support marriage between men and women quite heartily.  I then said that we felt that marriage was such a good thing that we wanted to participate, that we wanted to be able to share that with our loves and families.  He responded that he guessed that made sense.  He then told me that kids need mothers and fathers.  I said that kids needed loving parents.  Sometimes fate gave them a mom and a dad that were great, and that was terrific when it happened.  Sometimes, however, it didn’t work that way.  Some kids were in orphanages and foster care and needed good, loving families, and those families might include two dads, or two moms, and wasn’t that a thousand times better for the kids than staying in an orphanage?  And if those two were married, wasn’t that better, in the long run, for those kids?  He said he agreed that would be better.  He then told me that the guy he had come there with was a friend of his, a man who had a gay son, but that the man did not support gay marriage, even though he loved his son.  I said it was sad that he didn’t want his son to know the joy that marriage brings, that he would want to exclude him from that joy.  The guy thanked me, and walked away with a thoughtful look on his face.  Maybe…

Which brings me to my poll.  I was somewhat distressed, as I was leaving.  I walked past the guy who was the organizer of this thing, a rather smarmy fellow in a suit, by the name of Jason McGuire.  His resume says he is a Reverend, with a Bachelors degree from the Practical Bible Training School, but his manner proclaims him to be a used car salesman. He was finishing up an interview with a couple of young guys who had a tv camera, so I waited for a minute.  He offered to shake my hand, and I refused.  I then said, “Shame on you.  I don’t want to discuss or debate with you, there would be absolutely no point, but people should say shame on you to you more often.  So shame on you.”  I then walked away.

On the half mile walk back to my place, I passed a number of people, so I started an unofficial, for my edification only, poll.  I simply asked them “Same sex marriage, for or against?”, thanked them for their answer, and kept walking.  It was about 1:30 pm at this point, and most of the state workers were back at work, so I got a total of about 20 random people to answer.  Two, a couple walking together said, “Against.”  I then noticed they were carrying the literature from the rally.  Every single other person I asked said, “for.”  The farther I got away from the rally, the lighter my heart felt as some people said, “for, of course!” and kept on walking, but some insisted on stopping and explaining to me WHY they were “for!”

One woman said, “I am for it.  I don’t care what they do in their own bedrooms, as long as they are good neighbors and good to their children.  I think they should be allowed to marry.”  One person said, “I guess I am for it.  I mean, no reason why they should not, it doesn’t affect me.”  Two young guys in suits said, “For!  And it is going to happen, don’t you worry about it!”  I said I certainly hoped so, and we all smiled and I walked on.

So, despite having spent the morning listening to a lot of horrible lies and insane ranting (too strong?  No, trust me, I was there, listening to it, and I was trying to find even ONE new point that had not been refuted, or ONE semi-reasonable speaker, to no avail) I think that we are on our way.  I don’t know if the State Senate will do the right thing this year.  There are a lot of doubts that they will this year, and that will be a big disappointment to all if they don’t.  But I KNOW that they will do the right thing eventually.  The people standing around shaking their heads at all of this lunacy give me hope.  They guy with the rally sticker on his shirt who walked away thinking gives me hope.  The people on the street who could have just said, “for” and walked on, but who felt compelled to tell ME why marriage equality is important give me hope.  And sharing this with you guys gives me hope.

25 Comments May 25, 2011

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