June 13, 2011
By Adam Bink
A piece in yesterday’s NYTimes examining the temperature of various segments of the pro-equality community around going back to the ballot to repeal Prop 8:
SAN FRANCISCO — It was three years ago this month that thousands of gay couples began to wed in California after the state’s highest court legalized same-sex marriage, setting off a joyous — if short-lived — period for supporters.
That matrimonial bliss was quickly snuffed out in November 2008, when California voters passed Proposition 8, which limited marriage to unions between a man and a woman.
It was a crushing defeat for gay rights groups, many of which swore to take the issue back to voters — in a kind of instant do-over — as soon as possible.
But with a pending federal court case showing promise and major donors reluctant to step forward, it is unlikely that California voters will revisit same-sex marriage anytime soon.
“I’m not aware of a single donor who would support a ballot measure campaign,” said Chad Griffin, the co-founder and board president of the American Foundation for Equal Rights. “A ballot would be unwise, foolish and, in fact, dangerous.”
That danger, according to several leaders in the gay community, comes from the potential impact that a failed effort in 2012 could have on the federal case, which was brought in 2009 by Mr. Griffin’s group. Mr. Griffin, an experienced fund-raiser, hired the high-powered legal team of David Boies and Theodore B. Olson to pursue a constitutional challenge to the law, and last August, a federal judge — Vaughn R. Walker of the Federal District Court for the Northern District of California — sided with opponents of Proposition 8, finding that the voter-approved law violated constitutional guarantees of equal protection and due process.
But the legal machinations continue on several fronts: Judge Walker’s decision has been appealed to the United States Court of Appeals for the Ninth Circuit, and on Monday, there will be a hearing before another district court judge regarding a motion to vacate Judge Walker’s decision because of his sexual orientation. (Judge Walker, who retired in February, is gay.)
Regardless of how the lower courts rule, most legal analysts believe the Boies-Olson case will eventually be decided by the United States Supreme Court. No one seems to want anything to happen outside the courtroom to prejudice judges at any level.
“We’re right at the cusp, and it is the conventional wisdom that we can’t go to the ballot to repeal and lose,” said Kate Kendell, the executive director of the National Center for Lesbian Rights in San Francisco. She said an electoral loss could “create a very toxic environment” for same-sex marriage and “send a message that might chill an otherwise more compassionate court.”
Evan Wolfson, the president of Freedom to Marry, another rights group, echoed that statement, saying the federal case has been a “tremendous boost to public understanding about how the denial of marriage really harms families,” but it’s also had a chilling effect on a California ballot push. “While the case is pending, it has made it harder to mobilize the volunteers and money and energy,” he said. “That’s really been the good and bad of it.”
In addition to the potential impact on the federal case, some worry that a 2012 ballot campaign could also galvanize conservative groups in a presidential election year, and bring more Republican voters to the polls in California in a year when initiatives on issues like immigrant rights and the death penalty may make the state’s ballot.
But the wait-and-see decision will no doubt displease some who feel that the voter-approved ban on gay marriage — in a year in which President Obama was elected — was a low-water mark in the gay rights movement.
“There’s still definitely a great deal of ire about the passage,” said Andrea Shorter, the director of marriage and coalitions for Equality California, which had a prominent role in the expensive and failed battle to defeat Proposition 8. “Certainly the success of the federal case has given the movement optimism. But nevertheless I think folks are still reeling and hurt by what happened in 2008.”
The argument in favor of returning to the voters in 2012 rests on a few assumptions. One is that in an Obama re-election campaign would draw a host of younger voters, who tend to back same-sex marriage. In addition, recent polls show growing support for gay marriage nationwide. A Gallup survey in early May found that 53 percent of respondents believed that gay unions should be lawful.
And then there are the purely personal reasons.
“Honestly, I am tired of begging to have someone accept me,” said Serafine Simien, 35, a lesbian and a mother of a 10-year-old girl, who said she would support a ballot measure to repeal.
Ms. Simien was one of about 30 people who attended a meeting in Sacramento on Wednesday to discuss the pros and cons of a 2012 campaign, one of a dozen town-hall-style meetings held over the last month — and across the state — by Equality California. And while Ms. Shorter described the meetings as “a very earnest effort to gather input and ideas,” there also seemed to be a wariness in the room.
“Nobody sees the numbers,” said Dennis H. Mangers, 70, a veteran Sacramento lobbyist and political adviser who also attended the Sacramento meeting. “If you’re in favor of going in 2012, it’s an emotional reaction.”
For its part, Ms. Shorter told the group, Equality California, which would probably play a leading role in any statewide campaign, was considering “a host of other factors and variables,” and she conceded that “California may or may not be a priority” nationally in 2012.
In recent years several other states have taken center stage in the debate over same-sex marriage. In New York, legislators are expected to decide soon on a bill to legalize such unions, and Gov. Andrew M. Cuomo has indicated his support. Same-sex marriage is legal in five states — Connecticut, Iowa, Massachusetts, New Hampshire and Vermont — as well as in the District of Columbia.
While California voters may be sitting out, ballot measures are expected in several other states, including Maine, Maryland and Oregon. Those efforts are moving ahead, in part, because smaller, less populous states are cheaper places to run campaigns. Estimates are that gay rights groups would need to raise $40 million to $60 million to run an effective campaign in California.