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What’s At Stake For Them and For Us


by Brian Leubitz

Before the trial started, Yes on 8 general counsel Andy Pugno wrote a blog post (with comments disabled of course) about what the case meant to them.  A snip from them, and then I’ll decode it for you.

What is at stake in the Perry case is not just the right of California voters to reaffirm the definition of marriage as only between a man and a woman; a federal court decision overturning Proposition 8 could also ultimately nullify the people’s vote on marriage in 45 states and the federal Defense of Marriage Act passed by Congress in 1996.

In other words, what is at stake for them is a last grasp to hold on to the past. A past involving raids upon bars, closets that enveloped the LGBT community, and a fear of telling the truth. If Prop 8 is upheld by the Supreme Court, the LGBT community will have to live under separate but equal while the federal government gradually matures. For them, they must win, for a loss would mean the end of the road for the politics of scapegoating and fear that have served the right-wing so well over the last twenty years.

For us, what is at stake is the immediate future.  The next ten to twenty years.  A loss would be devastating, of course. To see discrimination against our community adjudicated acceptable under the Constitution would be a slap in the face.  But, as Martin Luther King, Jr, said, and was repeated by President Obama, “The arc of the moral universe is long, but it bends toward justice.”

See, the thing is that demographics are really rough on them.  At the polls, young voters overwhelmingly rejected Prop 8. Voters under thirty opposed Prop 8 by over sixty percent. These, and voters not yet eligible, are the voters who will ultimately end this debate in the favor of justice.

I am a lawyer, and I have faith in the judicial system. But I also understand that sometimes courts can mistake popular anxiety for justice. I understand that our courts can hand down rulings, such as Plessy v. Ferguson that cast doubt about whether our Constitution is really a living document. But our Constitution, and the American spirit, yearns for justice.  And here, as Brown v. Board of Education proved, justice has a way of winning out.

What’s at stake for them is a small world that is getting smaller. Ours is only getting bigger, no matter which way this case goes.


  • 1. Bry  |  January 15, 2010 at 1:39 am

    Amen to that Brian! I firmly believe that in the end it'll be my generation that does away with the issues. We might use "gay" as a slur for "lameness" sometimes but in our hearts we stand on the right side of justice.

    Incidentally, does anyone else think Justice Walker's "talk" has something to do with Kendall? I really REALLY want to see Kendall's testimony, the Gay Conversion is a Farce argument being proven incontrovertibly (by someone other than the…you know, experts at the APA who "clearly" must not know what they're talking about ) would massively benefit our side

  • 2. millennialdad  |  January 15, 2010 at 1:42 am

    I'm 24, my wife is 24, and we just had a son.

    We all support gay marriage (well, we'll at least our son will grow up in a household where gay marriage is supported).

    The tide is a-changin' and change is on our side.

  • 3. Bry  |  January 15, 2010 at 1:47 am

    Gratz on the lil' boy ^^, many hopes that he grows up like his progressive momma and pappa and should he end up beinng gay that he'll grow up in an environment without being picked on by other kids (or..for that matter, be picked on regardless of his sexual orientation).

  • 4. ASW  |  January 15, 2010 at 2:11 am

    As the father of a 3½-year-old, and a man of 31 who is married to a woman of 33, we applaud the efforts of the Courage Campaign.

    When people realize that we're all going to be sharing this planet, and that we're all just humans who deserve, then the world will be a better place. And for those who seek to assure otherwise … well, they can go move to Mars or something.

    And we hope to raise our son in a world where this sort of stratification and stigma isn't one that will affect his or anyone else's emotional and physical well-being!

  • 5. Lurleen  |  January 15, 2010 at 1:48 am

    "the people’s vote on marriage in 45 states"

    "the people" haven't voted on marriage in 45 states. many states were saddled with anti-equality marriage laws through legislative action. here in washington state, it is a common misconception by the anti-gay crowd that our state doma was inflicted on us via "vote of the people". not true.

    additionally, how do they get to '45'? the total number of states with anti-equality laws or amendments is something like 38.

    i suspect we could take all day unwrapping the many untruths in each of the 'yes on 8' blog posts.

  • 6. Marc  |  January 15, 2010 at 2:03 am

    "i suspect we could take all day unwrapping the many untruths in each of the 'yes on 8' blog posts."

    …which is why comments are disabled!

  • 7. Steve  |  January 15, 2010 at 5:00 am

    I think Pugno recognized the hazard of animus being exposed as the prime motivation behind Prop. 8 (and prior legislation and ballot initiatives) early-on, as evidenced by the following story posted on SFGate 11/24/2008 entitled: "Prop. 8 backers splinter as court fight resumes." In essence, he and the Yes on Prop. 8 campaign distanced themselves from other groups supporting Prop. 8 who were not members of the official campaign, and did not bear their animus lightly.

    Money quote from Pugno:

    "We represent the people who got things done, who got Prop. 8 passed," said Andrew Pugno, general counsel for the Yes on Prop. 8 campaign. "AN IMPORTANT PART OF DEFENDING PROP. 8 IS ELIMINATING ARGUMENTS NOT HELPFUL TO OUR CONCERNS."
    (my emphasis)

    Of course the other organizations supporting Prop. 8, who Pugno threw under the bus, were not amused:

    "I'm surprised, because we've litigated beside each other for 4 1/2 years" in the unsuccessful effort to keep the Supreme Court from overturning (the) Prop. 22 same-sex marriage ban in 2000, said Mathew Staver, founder of Liberty Counsel, which represents the Campaign for California Families. "We have the same goal, which is to defend Prop. 8."

    The Campaign for California Families sponsored an unsuccessful attempt at a ballot initiative scheduled for 2006 ( that would have both prevented same-sex marriage and eliminate domestic partnerships. The initiative was supported by the Traditional Values Coalition, listed a hate group by the Southern Poverty Law Center.

    At the same time, Pugno represented, a rival group that also sought to prevent same-sex marriage and eliminate domestic partnerships. Apparently, he was opposed to domestic partnerships before he accepted them (just as he curiously accepts the 18,000 legal same-sex marriages solemnized in California prior to the passage of Prop. 8):

    "Pugno and believe their one-sentence amendment is "airtight" because bestowing any benefits to an unmarried couple would be tantamount to recognizing that couple. That strategy makes domestic partnerships illegal…"

    Measures mark split for conservatives
    How to block benefits for any nonmarital union is point of debate"

    It's all about animus, obscured by cold-hearted political calculation, pure and simple.

  • 8. Jane  |  January 15, 2010 at 1:58 am

    No matter what happens, this blog has changed me, and I am so thankful. I needed this so much. It's called the Courage Campaign for a reason. I came here empty and I'll leave here full.

  • 9. julie  |  January 15, 2010 at 2:09 am

    this trial is but one step on our long road to justice. this is a call to action. some of my gay friends dont understand the importance of community. we need each other. we are not alone-as we read here. we have shared experience. we have a responsibility as we witness this history to share it with others. the only response to fear is action. be brave and radical-do something courageous- hold hands 🙂

  • 10. becca  |  January 15, 2010 at 2:17 am

    I am a straight, married woman with two kids (17 and 18). I support marriage equality. My kids, bless them, don't see what the fuss over sexuality is – to them, people are what they are. I read people's stories here, and I weep. No one should be discriminated against, for what ever reason: sexuality, skin color, religion or lack there of. I am following this trial closely, as closely as I did the Dover trial – not because it affects anyone I know immediately, but because it affects our whole country. You all have my total, unconditional support… for whatever little that's worth.

  • 11. Chris  |  January 15, 2010 at 2:30 am

    Thank you Becca. Your support means a great deal to a lot of people.

  • 12. Tim  |  January 15, 2010 at 8:08 am

    Yes Becca! It means a lot that you and Many other respondants are commenting on this blog to support us! Us being human beings.I applaud you all, for teaching your children tolerance and love,not hate and predjuduce! Thank You !

  • 13. A Mom  |  January 15, 2010 at 4:59 am

    It's worth a LOT Becca! Your kids not seeing the 'fuss' is a testament to their upbringing by a loving parent. There will always be discrimination of some by some, but as generations evolve it will become less .. and less … and less.

  • 14. ET  |  January 15, 2010 at 2:18 am

    Just wanted to pop in and express how very thankful I am for this site – the testimony (both in the court case and personal) have been both heart-warming and heart-wrenching, and I KNOW that we are fast approaching the 'tipping point' for LGBT rights!

    Much love to you all! 🙂

  • 15. Gayle Madwin  |  January 15, 2010 at 2:22 am

    As nice as it is that what's at stake for us is "only" the next ten or twenty years . . . that's still a huge chunk of our lives. I should be getting married NOW, not having to wait ten or twenty years for it.

  • 16. Brian Leubitz  |  January 15, 2010 at 2:50 am

    I feel the sentiment, but the greater point is that which was preached by Ghandi, and MLK. We are on the side of justice, and it will prevail. We will take our lumps along that road, but if you think about it, this is a very successful civil rights movement. In the span of less than 50 years, we have dramatically changed opinions and laws across the world.

    In some places, it will take longer, but it will happen. We just can't quit working.

  • 17. Kai  |  January 15, 2010 at 2:48 am

    Thank you for blogging this and providing us all with an insight into this trial which would otherwise not be possible. I've been forwarding this to my friends and any others who might in the least bit be interested.

  • 18. Joe Franko  |  January 15, 2010 at 2:56 am

    My husband David and I are Quakers and because of that our Friends Meeting married us, recognizing that God had already sanctioned our marriage. It was a joyous celebration, but it happened only after Prop 8 passed, mostly because i didn't want to ask him to marry me when it seemed more like a political act than a religious and loving act. After the passage of Prop 8 I knew when I asked him to marry me it was because I saw that God had already married us.

    Yet I live in society and many of the rights and privileges of marriage are denied to David and I. Neither of us thinks that domestic partnership is equal to marriage. Separate is not equal and the advocates of Prop 8 seem to agree with that, preferring to keep marriage from us but throwing us a domestic partnership bone. It's difficult for me to understand why the state sanctions one kind of religious marriage and not another.

    It's also clear that there will eventually be gay marriage. It's just a matter of time. But some of us don't have that time. David is HIV+. His health status is sometimes tenuous. Because of our age and David's health status we will be lucky to have 20 years to wait. If David were to die tomorrow, I would have none of the social recognition or benefits that go to the grieving spouse. I'm lucky. My Quaker Meeting would support me, but all of the benefits that those men and women who've only been married a few hours will be denied to us.

    I thank you so much for pursuing this battle. Like Dr King wrote in his "Letter from a Bigminham Jail", some of us can't wait!

  • 19. Dave in Northridge  |  January 15, 2010 at 5:00 am

    Bravo, Brian, and I agree that you've nailed it. It's time, I think, for academics and commentators to revive a little-used phrase: arrière-garde. It's the opposite of "avant-garde" and it's best used to characterize the forces who are acting as a brake against social progress.

    I absolutely understand, mom, but aren't the pro prop-8 people painting themselves into a "them" corner?

  • 20. MSM  |  January 15, 2010 at 8:34 am

    The truth is the majority of the people who voted supported traditiional marriage. Do the work, get the votes and be done with this.

  • 21. Adam  |  January 15, 2010 at 9:59 am

    Thank you for that, Brian. You put a whole new perspective on things. It is easy to forget that even if we lose the battle, we are still moving closer to winning the war.

  • 22. Go_proton77  |  January 15, 2010 at 11:01 am

    Thanks for a great chance to follow the trial via iPhone. I'm against gay marriage not (gay) people. I believe gay sex acts are choices people make and gay people can choose to stop. I do not want my children to be forced to accept gay sex acts as normal or natural in public schools. No disrespect….it's just me a 41 year old husband and dad who fears for our society.

  • 23. Doug Bearden  |  January 16, 2010 at 6:15 pm

    How much more bigoted and hateful can you be. Your not against gay people but against their " sex acts?". You closed minded ass it isn't a "choice."

  • 24. Go_proton77  |  January 19, 2010 at 3:52 pm

    Damn right it is Doug. When you perform anal penetration into a man and give another man fellatio, you are performing sex that defines you this way.

    No disrespect man, my lifestyle is sacred (monogomous, married family man) I want you to be happy, but claiming marriage equality won't do it. You have free will to get up and have cigarette tommorow morning or not. You have free will to never behave this way again. I'm a Christian and I love you all enough to say that you can have freedom from your choices.

  • 25. JTS  |  January 15, 2010 at 11:24 am

    It is good to hear from people who don't agree with us because it gives us a chance to try to help you understand us.

    First of all – I don't think any sex acts are normal or natural in school. I wouldn't accept them either. I kid.

    I think that what you meant was that you don't want your children taught about gay marriage in school. Why would you think that it would be? Is heterosexual marriage taught in school? In the early grades? And if it is talked about, is marital sex discussed? I don't think so. This reflects an obsession with gay sex, not gay marriage.

    Being gay is not a choice. If you are not gay, then you probably don't get this. Ask a gay person, if you know one. Ask them if they chose to be gay. I know I didn't. It is just who I am. And I am proud and happy to be who I am.

    I have seen both sides of the table. I was married to a man for 25 years and I am now with my partner of 5 years. I can tell you that it is not the same not being married. I want what I had being married. I want the belonging, the acceptance, the one-ness that marriage gives. But I do know that I belong with a woman and that I am far happier with my future wife living my truth.

    Thank you, Go_proton77 for your respectful post. I hope that this trial and these comments enlighten you.

  • 26. mom  |  January 15, 2010 at 11:33 am

    I just wish groups did not seem to need a “them” to bring the group together to gain or keep an advantage over “them” to make the group feel superior. It is all just “us”/”we”, and “we” are all people, despite race, age, gender, sexual orientation, etc. that should be valuing all our brothers and sisters and our beautiful diversity. This is sadly not the world we have yet, but we must keep working toward it, teaching our kids not just tolerance and acceptance of people with differences, but teach them that these differences bring real value and enrichment to society as a whole.

    It is so hard to express to my bisexual daughter her value, yet have to caution her to hide from those who might wish her harm.

    I grew up watching civil rights extend to race and am now watching it extend to sexuality. It is wonderous and painful and to slow to come.

  • 27. The Monster's Ink&hellip  |  January 15, 2010 at 1:50 pm

    Your marriage is not subject to a simple majority vote….

    At the Courage Campaign liveblogging of Perry v. Schwarzenegger, Brian Leubitz shows us this blog post from Prop 8 counsel: What is at stake in the Perry case is not just the right of California voters to reaffirm the definition of marriage as only bet…

  • 28. Janet  |  January 15, 2010 at 5:49 pm

    @Brian Leubitz

    "last gasp" is what I called the prop 8 election and all the harassment, name calling and nastiness that I and other folk out in the streets with anti-prop-8 signs had to endure. Last gasp for homophobia, no more second class citizenship. It's going down the drain, just like white supremacy. It may not be today, but it–they–are definitely going down.

  • 29. Go_proton77  |  January 16, 2010 at 9:03 am

    I beg to differ, the voters are speaking in my state of california. The gay agenda is ruining it for regular out and closeted gays, by forcing the hand of regular family people to deal with homosexuals. Be who you are without bringing my family into this. I still stand by the argument that gay sex is a choice and comparing homosexuality to racial predjudice is outrageous. Then what do we do when people change or evolve back to hetero feelings.

    See im trying to nurture my monogomous hetero marriage and raise my children to be happy normal people.

    Gays need to get out of the news and out of normal peoples faces and just be happy. Marriage and the military are two vital and sacred places gays need to avoid.

    Demanding marriage equality is arrogant and offensive to us "normal family people" trying raise kids. Domestic partnerships and anti discrimination are not good enough for you people….so you use try to compare your feelings to blacks in the civil rights movement, when a sex act is a choice.

    How dare you people and your ways come into conversation near my kids.

    I guess exodus international may be inclined to join the discussion.

    Please be yourselves and stop forcing acceptance. You have tolerance but for god sakes normal people do not accept marriage demands in our faces. "we" demand you people stop forcing unconditional acceptance of your sex acts!!!

    No one hates gay people, us normal family people are in disagreement on your attempts force acceptance of your sex acts which define you….

    You are not gay unless you perform homosexual sex acts, we demand you stop forcing and telling the rest of us we must accept this. We will never accept your behavior (sex acts) as normal.

  • 30. Lurleen  |  January 16, 2010 at 10:07 am

    @Go_proton77, I just wanted to thank you for proving that prop 8 is nothing more than the manifestation of raw anti-gay animus. Bravo!

  • 31. Doug Bearden  |  January 16, 2010 at 6:26 pm

    Are you for real? Since when does this have anything to do with sex acts gay or straight? Why are you so obsessed with same sex sex? Do you fantasize about it? Me thinketh thou doeth protest to much. Sorry I k ow I butchered the spelling of that phrase but I am sure it isn't lost on anyone.

  • 32. JTS  |  January 18, 2010 at 11:15 pm

    Here I had given you the benefit of the doubt. I thought maybe you were truly interested in learning about people different than yourself. How wrong I was!

    Anyone who defines homosexuality by the sex act does not understand homosexuality at all! I have a loving, committed relationship with the woman I hope to marry. We are raising children together, we have a home, we are part of our community. We are a family without any of the legal rights that heterosexual couples take completely for granted.

    So – no one is heterosexual unless they are committing heterosexual sex acts? What are you the rest of the time? Is sex the only thing that makes you a heterosexual? Does your wife realize that that is the only reason you are with her is for the sex? That is a sad sad thing. I feel very sorry for you and for your children who are not being raised to see marriage as an expression of love and caring between two people.

    I am a "normal family person" and I will not let hateful people like you tell me any different.

  • 33. Go_proton77  |  January 19, 2010 at 4:11 pm

    Can you tell some of us are getting tired of having to defend traditional marriage.

    Traditional marriage does not include 3 ways, lesbian cunnilingus, male/male oral and anal sex. This means your choices keep you off of the stage I stand on and defend.

    The legal case favors non discriminatory practices…..but the rest of us who are trying to raise children and live naturally are not buying the whole equaliy thing.

    We do not want our children being indoctrinated into believing your choices are appropriate.


  • 34. misken  |  January 20, 2010 at 4:03 am

    I feel sorry for you. Everything about relationships is about sex for you, huh?

  • 35. Misken  |  January 17, 2010 at 8:15 am

    I go to the high school that Theodore Olson graduated from, and our newspaper did a poll on Proposition 8 last year. Results: 81% NO, 18% UNDECIDED, 1% YES.

    Just imagine, when we become eligible to vote, homophobia will finally begin to lose at the ballot box.

  • 36. Go_proton77  |  January 18, 2010 at 5:38 am

    Are you joking 81% of (all) Los altos high students were polled this way? What are smoking? It's great young people are interested in voting someday! Selfish and miserable gay people making outrageous demands, should be the last thing on your mind. The free market economy, job creation, and your parents ability to provide shelter for you ought to concern you more.

    Natural hetero monogomous marriages are the standard. You'll learn and see this someday.

  • 37. misken  |  January 18, 2010 at 6:51 am

    Young people actually care about the civil liberties of others. And each new generation has a new set of standards and social norms. Older people may sneer at this process as immaturity or "they will grow up and change", but that has never happened in history. Get used to it.

    Of course we are interested in boosting our economy and creating new jobs so we aren't unemployed when we graduate from college. You'd be a fool to think we weren't. But just because we care about those things doesn't mean we have to ignore the inequality that surrounds us.

  • 38. michael  |  January 18, 2010 at 6:56 am

    Good point wasted on the unenlightened…

  • 39. John  |  January 18, 2010 at 7:07 am

    I'm tempted to call Poe's Law on this guy.

  • 40. A Small World Getting Sma&hellip  |  January 17, 2010 at 8:31 am

    […] Yesterday, I described the anti-equality Prop 8 team as living in a “small world getting smaller.” Today, the team is visibly smaller by at least one, as Fox News contributor and perky conservative Margaret Hoover wrote today on the website that she’s joining our team. Some Republicans support gay rights, but prefer progress through legislative action or majority rule at the ballot box, rather than judicial action. But what if a democratic election imposes mandates that violate a citizen’s constitutional freedom? In the event that majority rule insufficiently protects individual liberty, our system of checks and balances puts forth that it is the role of the courts, to guarantee and protect the rights to individual Americans. […]

  • 41. Joetx  |  January 22, 2010 at 6:27 am

    I am a lawyer who does not have faith in the judicial system. Judges, even U.S. Supreme Court justices (shock, I know), have come up with any and all rationalizations, no matter how illogical, to justify their rulings to fit their personal ideology. All they need is to have a majority of their peers to agree with them. Unfortunately, it looks to me that once this case reaches SCOTUS, we'll be facing a devastating defeat. I don't care that Kennedy authored the Lawrence opinion. He's been hellbent on proving his conservative bona fides.

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