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On the Prop 8 Stay and Standing

by Brian Devine

I predict we’ll have Judge Walker’s ruling on the Motion to Stay either today or tomorrow.  And I predict he’ll deny the stay, allowing same-sex couples full marriage equality for the first time since that bittersweet night in November 2008.

While we wait, let’s take a look the issue of “standing” and what it means to the stay and the appeal of Judge Walker’s opinion.

What’s “Standing”

Article III of the US Constitution gives Federal Courts the limited jurisdiction to decide actual cases or controversies. This is referred to as “Article III standing.” To have standing to bring a lawsuit or to pursue an appeal, a party must show that he or she has suffered an: “injury in fact —— an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”

To appeal a decision, the Prop 8 supporters must show that allowing same-sex couples the right to get married somehow invades their rights and causes them harm.  Remember, though, that Judge Walker already ruled that “Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.” In other words, if Prop 8 did not exist, the rights of those people who support Prop 8 would not be affected.  Consistent with this holding, Judge Walker should find that the Prop 8 supporters do not have standing because they will not suffer any “concrete and particularized” harm if Prop 8 is not enforced.

The best argument that Prop 8 supporters can make is that they would be injured by the simple fact that California is not enforcing a law passed by the People.  But the Supreme Court has held that “[an] asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” (Allen v. Wright, 468 U.S. 737, 754 (1984))

I think there’s a good chance Judge Walker will find that the Prop 8 supporters lack standing.  The only parties in the case who do have standing (the Plaintiffs and the State) have not appealed and have affirmatively said that they do not want a stay.  This means that if Judge Walker finds that the Prop 8 supporters do not have standing, he also will deny the motion to stay.

There is more… (more…)

169 Comments August 9, 2010

Schwarzenegger and Brown ask court to let marriages resume; AFER files motion opposing a stay

by Brian Devine

State Attorney General Jerry Brown and Governor Arnold Schwarzenegger just filed papers asking Judge Walker to immediately enforce his decision declaring Proposition 8 unconstitutional and to allow equal marriages to resume in California right away.

The anti-equality backers of Prop 8 filed a motion with the Court asking it to hold off on enforcing (or “to stay”) its decision pending the appeal to the Court of Appeals.  Judge Walker ordered that the Plaintiffs file their opposition to this motion today, and agreed to stay enforcement of his decision at least until he rules on this pending motion.

That both the Democratic Attorney General and the Republican Governor think that marriages should resume now shows that there is broad agreement that equality cannot wait for years of appeals.  Sure, there are crazy outliers that think that we should continue to discriminate against same sex couples, but those people are far outside the mainstream of legal thought.

Here’s a full copy of Jerry Brown’s filing.

The jist of Jerry Brown’s argument is:

Defendant-Intervenors’ argument that the Attorney General’s opposition to Plaintiffs’ initial request for a preliminary injunction supports their request for a stay pending appeal ignores the fact that there has now been a trial on the merits that conclusively demonstrated that Proposition 8 is unconstitutional. In opposing the request for a preliminary injunction, the Attorney General argued that “the parties, the Court, and, indeed, the general public would benefit” from having the constitutionality of Proposition 8 “decided on the merits following full briefing and argument by the parties.” That has now occurred. And while there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by this Court’s conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional. Accordingly, the harm to the plaintiffs outweighs any harm to the state defendants.

And here is a full copy of Arnold Schwarzenegger’s filing.

Schwarzenegger’s agrument is similar to Brown’s.  In essence, he argues that denying the stay and allowing marriages to resume will further the public interest by promoting equality for all:

[I]mplementing the Court’s order now, without further delay, serves the public interest. . . . California has long been committed to eliminating discrimination on the basis of sexual orientation and respecting the familial rights of same-sex couples. . . . The Court’s decision here is consistent with California’s long history of leading the way in recognizing the rights of gay and lesbian families to order their relationships and manage their day-to-day lives. For that reason, California’s public interest is served by giving the Court’s judgment effect now.

The Plaintiffs (represented by Boies and Olson) have not yet filed their opposition to the Motion to Stay, but it will be filed wihin the next few hours.

UPDATE: Dean Logan, the LA County Registrar/Recorder/Clerk, says that he is preparing to start issuing licenses as soon as the stay is lifted:

“My office is definitely following all developments concerning the ruling and subsequent order to stay judgment. We plan to take immediate action to implement the court’s orders if the stay is lifted and judgment is entered. Operations wise the department is ready to issue same sex marriage licenses, our marriage license forms would not need to be altered and I have directed management staff to prepare for possible implementation.

We have received a number inquiries from members of the public regarding marriage licenses and also to volunteer as deputy commissioners of civil marriages. At this point we can only wait to see what action the court makes.”

West Hollywood officials are also preparing to start officiating marriages, as are other cities across the state.  You can be sure that as soon as it is legally possible, San Francisco will be back in the act of marrying same-sex couples.  Stay tuned for more updates if/when they come in on the stay.

UPDATE: The plaintiffs have now filed a motion opposing a stay.

From a statement released by the AFER:

Chad Griffin, Board President of the American Foundation for Equal Rights, issued the following statement today after the plaintiffs — and the Governor and Attorney General — opposed a stay of this week’s ruling in the Prop. 8 trial:

“The unconstitutionality of Proposition 8 has been proven beyond a doubt. Extending Prop. 8’s denial of fundamental constitutional rights represents a grave injustice. The time for the court’s ruling to go into effect is now. We welcome Governor Schwarzenegger’s and Attorney General Brown’s opposition to a stay after their thoughtful analysis of the evidence, the court’s ruling and the law.”

Their motion can be found here.

Plaintiffs’ Opposition to Motion for Stay of Prop 8 Ruling

UPDATE BY EDEN: Karen Ocamb notices a wry wrinkle in the AFER motion:

Here is part of their argument, in which they cleverly quote from Protect Marriage witness David Blankenhorn:

“Whether Plaintiffs marry immediately or at a time of their choosing could not be less relevant; this Court’s ruling establishes that Proposition 8 is an unconstitutional barrier to the exercise of their constitutional right to marry, and that finding alone establishes the irreparable harm Plaintiffs would suffer if Proponents’ extraordinary request for relief were granted.

As citizens of a nation profoundly committed to the principle of equal rights, the public has a substantial interest in allowing Plaintiffs to engage in the fundamental right to marry to which they are entitled. “[A]ll citizens have a stake in upholding the Constitution” and have “concerns [that] are implicated when a constitutional right has been violated.” Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005). This Court’s judgment therefore advances the shared interest of all citizens in enforcing the Constitution’s guarantees and reinforces this “Nation’s basic commitment . . . to foster the dignity and well-being of all persons within its borders.” Goldberg v. Kelly, 397 U.S. 254, 264- 65 (1970). Suspending Plaintiffs’ constitutional rights at this point would, in the words of Proponents’ own witness, prevent this Nation from fulfilling the founding principle of “equal human dignity” and stop us from becoming “more American.” Doc #708 at 50 (quoting David Blankenhorn testimony and exhibits) (emphasis added).

UPDATE BY EDEN: Kathleen in the comments has been an amazing resource for Trial Trackers looking for credible and timely information on the legal process. Often, she’s ahead of us in posting news and providing analysis in the comments. Check out the thread on this post as yet another example.

Speaking of extremely helpful experts in our movement, check out the“What the Temporary Stay in the Prop 8 Case Means” FAQ that Shannon Minter, from the National Center for Lesbian Rights, just sent us. For everyone who wants to understand the legal lay of the land right now, it’s a good short primer. Here are the money grafs:

Judge Walker can decide whether to stay the decision for longer at any time. If he grants the motion to stay, same-sex couples will not be able to marry in California until after the appeal is finished. The Judge can also delay the decision for a short time until the Ninth Circuit appeals court decides whether they will order a stay.

If Judge Walker denies the stay and permits his decision to take immediate effect, the Yes on 8 proponents can ask the Ninth Circuit appeals court to order an emergency stay.

272 Comments August 6, 2010

Impeach Judge Walker?

by Brian Leubitz

That’s exactly what the American “Family” Association wants to do. In an email to their supporter list, the AFA called for Congress to impeach Judge Walker for failing to conduct himself with “good Behaviour”:

Yesterday (August 4), U.S. District Chief Judge Vaughn Walker single-handedly overturned California’s Prop. 8, which elevated protection for one-man, one-woman marriage to its state constitution.

In doing so, he frustrated the expressed will of seven million Californians who went to the polls to shape their state’s public policy on marriage. …

Fortunately, the Founders provided checks and balances for every branch of government, including the judicial branch. Federal judges hold office only “during good Behaviour,” and if they violate that standard can be removed from the bench. Judge Walker’s ruling is not “good Behaviour.” He has exceeded his constitutional authority and engaged in judicial tyranny.

Judges are not, in fact, unaccountable. They are accountable to Congress, which can remove them from office. Impeachment proceedings, according to the Constitution, begin in the House of Representatives. It’s time for you to put your congressman on record regarding the possible impeachment of Judge Walker.

Where to begin? There’s just so much crazy that is genuinely difficult to choose just one nugget. Let’s first start with the popular vote issue.  I’m hesitant to bring  this up again, because really? Really people?

Let’s talk about this.  Do we really want everything up for a popular vote? I guess it’s easy to criticize when you are the one putting up other people’s rights for a vote. But, flip the script, and what does the AFA say about it when somebody puts an initiative on the ballot limiting the number of kids you can have. I mean, limited resources and all. It worked for China, right? Right, AFA?

The larger point is that some rights are sacrosanct. They are not privileges that are earned or that should be put for a plebiscite.  My relationship should not be disfavored because a majority of California voters get squirmish, or are fearful, or are baited into fear through a $40 million scare campaign.

This of course ties directly into the question of impeachment.  “good Behaviour” wasn’t intended to be some sort of generic “the majority doesn’t like you” catch-all.  After all, there are decisions made all the time that the majority disagrees with. Yet, we don’t impeach those judges.  Heck, the entire point of the judiciary was for judges to be a check on the tyranny of the majority.  If we go around impeaching our judges because they apply the constitution simply in a way we don’t like, the entire Article III power of the judiciary will be wiped away.

Of course, this isn’t all that the AFA has said on the matter. In a right-wing online publication, they suggested that this was all in self-interest. Because, you know, Walker is gay (and doesn’t have the good grace to hide it back like those pleasant closeted gays of generations past). I’ll point them to my earlier post, “Did They Know Justice Alito is Male?” Back then, I pointed out the irony that nobody was complaining when Justice Alito was writing a ridiculously sexist opinion in Lilly Ledbetter’s case:

We all have some mix of racial, geographical, socioeconomic and other backgrounds. And they are all mixed up with who we are. We can’t take those labels off no matter how independent or fair you are.  Yet some will still see this as sort of bias.

So, did anybody comment about Justice Alito’s gender when he wrote the outrageous opinion in Ledbetter v Goodyear Tire that said that under the Civil Rights Act women could not sue after 180 days from the discriminatory decision, even if they didn’t know about the decision for years? The decision that ultimately spurred the passage of the Lilly Ledbetter Act because it was so egregious.

Can an African-American judge not rule an issue of race? A female judge not rule on issues of gender? These ideas, of course, are patently absurd, as is the charge that Walker should have recused himself.

Yet, AFA and their allies will continue to push for the impeachment of Judge Walker and of any 9th Circuit Judges that concur with the district court’s decision, and probably for any Supreme Court Justice who dares to do the same. For the time being, their aren’t enough right-wing zealots to really push this through Congress. But elections are right around the corner, and their are quite a few of said zealots lining up to enter the halls of power.

Will Congress really take the time, even with a Republican majority in the House, to impeach Judge Walker? It’s doubtful at best. After all, “good Behaviour” was never intended to reflect a merely unpopular decision, rather to serious personal failings that would compromise his ability to be a judge. Things like taking bribes, that sort of thing. In our history, only 14 judges have been impeached, with only 6 of them being convicted.  This is not to be done lightly, or for mere disagreements on issues for which reasonable minds can disagree.

But the AFA and their friends are on a rampage. They want blood, and they are going to demand that right-wing Representatives in Congress pick away for it.  I suppose this just reiterates the importance of our involvement in not just the judicial process, but always being mindful that we can never forget about the political process.

122 Comments August 5, 2010

Analyzing the Prop 8 WIN: A Few Large Points

by Brian

Judge Vaughn Walker issued a decision today overturning Proposition 8, finding that it violates both the Due Process Clause and the Equal Protection rights in the United States Constitution.  Here’s a full copy of the 138-page decision.

Most of the decision (the first 109 pages) is the “factual findings.”  This is crucial, and here’s why.  On appeal, Judge Walker’s conclusions of law are basically irrelevant.  Questions of law are decided fresh on appeal, and the trial court’s thoughts on the law are entitled to no deference.  On the other hand, only a trial court can make factual findings.  A Court of Appeal must give great deference to the factual findings of the trial court, especially when those findings are based on the credibility of witness testimony.  Judge Walker knows this.  He knows that his primary role in this case is to weigh the credibility of the evidence that was presented at trial and apply the facts that were proven to the law. But the law–unlike the facts–ultimately will be decided by nine Justices at a higher pay grade. Consequently, we should be grateful to Judge Walker for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court.

In a big victory for marriage equality, Judge Walker found that the “strict scrutiny” test applies to the Due Process analysis.  As its name implies, this is the most stringent of the tests that can be used to determine if a law satisfies the Due Process Clause.  To satisfy “strict scrutiny,” the State must show that the law is “narrowly tailored to a compelling state interest.”  On the other hand, the most relaxed standard–and the one that the anti-equality crowd argued should apply–is “rational basis review.”  Under “rational basis review,” the Court will uphold a discriminatory law if the State has any rational reason for having the law.  Judge Walker found that the “strict scrutiny” test applies instead of the “rational basis” test because marriage is a fundamental right.  When the State takes away a fundamental right, it must have a compelling reason to do so.  But going even further, Judge Walker found that even if the Prop 8 proponents were right and the “rational basis” test should apply, Prop 8 still does not pass muster.  Finding that Prop 8 does not even pass the “rational basis” test, Judge Walker easily found that it could not pass the compelling interest requirement of strict scrutiny.

Turning to the Equal Protection claim, Judge Walker’s analysis is essentially the same as for Due Process.  First, he found it unnecessary for the Court to determine which of the three tests (rational basis, intermediate review, or strict scrutiny) should be used to conduct the Equal Proection analysis because Prop 8 cannot satisfy rational basis review, the most relaxed of these standards. Although Judge Walker finds that the evidence shows that “strict scrutiny” probably applies, he found that he did not need to reach that decision.  Second, Judge Walker goes on to show in detail why each of the arguments advanced by the Intervenors fails to provide a rational basis for Proposition 8:

  • Intervenors argue that maintaining the traditional notions of marriage being between a man and a woman is a rational reason for Prop 8.  Judge Walker responds by citing a 1970 U.S. Supreme Court case and says: “Tradition alone, however, cannot form a rational basis for a law.”  He went on to say:

Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.

  • Intervenors also argued that because same-sex marriage is such a sweeping social change, California has a rational basis to implement this change incrementally.  In other words, it should be allowed to first offer domestic partnerships before marriage.  Judge Walker rejected this argument, finding that “The process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to integrate same-sex couples into marriage.
  • Losing touch with reality, Intervenors’ next absurd argument is that the state has a rational basis to reserve marriage for opposite-sex couples because they’re better parents and the state should promote procreation within an opposite-sex marriage.  Judge Walker easily dismisses this drivel by finding that the evidence proves: “(1) same-sex parents and opposite-sex parents are of equal quality, and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.
  • Going further afield into crazyland, Intervenors next argue that the state has a rational basis in protecting bigots rights to take away rights from people they don’t like.  Holding in his laughter, Walker responds: “Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.”  Can we get a Hallelujah!
  • Intervenors next argue that there’s a rational basis in calling different things by different names.  They argue that it would be an administrative burden to have the same name for both opposite and same-sex unions.  And imagine the chaos that would ensue if someone said that they were married and you later discovered they were a GAY!  Judge Walker responds: “Proposition 8 actually creates an administrative burden on California because California must maintain a parallel institution for same-sex couples to provide the equivalent rights and benefits afforded to married couples.”

After rejecting each of the Intervenor’s arguments as to why a rational basis exists for Prop 8, Judge Walker went on to find that in the absence of a rational basis, it is safe to assume that Prop 8 exists because some people just don’t like gays and lesbians:

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief hat a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.

One quote from the decision that really sums up the feelings of many who believe in equality is:

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” (Quoting a 1943 U.S. Supreme Court case)

The long and well-reasoned decision concludes with this short and sweet determination that the couples who challenged Proposition 8 are correct:


Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result,see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.

The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.


The elephant in the room is now the question of a stay.  Yesterday, in anticipation of losing, the anti-equality Intervenors filed a motion asking the Court to stay its decision pending appeal.  In other words, they argue that since an appeal is inevitable, the Judge should not enforce his ruling until after the inevitable appeal is exhausted.  Judge Walker has not yet ruled on that motion.  Even if Judge Walker denies the stay, the Intervenors will ask the Ninth Circuit Court of Appeal to issue an immediate stay of the decision.  In a case like this, a stay is very likely.  It remains to be seen whether Judge Walker will grant the stay or if that issue will be decided by the Ninth Circuit.

*UPDATE* CNN is reporting that Judge Walker issued a stay.  But there is no Stay Order in the Court’s docket as of this writing, only the motion by the Intervenors.  I suspect CNN may have gotten ahead of itself and is publishing unconfirmed rumors.  That being said, I think a stay is likely at some point (probably by the Ninth Circuit.)

*UPDATE* The Court just entered an Order shortening time for Intervenors’ motion to stay to be heard.  Plaintiffs’ must file their opposition to the Intervenor’s motion to stay Friday, August 6th.  The Court will decide the motion on the papers without a hearing.  I suspect an order will issue very shortly after the opposition is filed, probably by Monday or Tuesday.  In the interim (i.e. in the next few days until the Court rules on the Motion to Stay), the entry of the Judgment is temporarily stayed.

115 Comments August 4, 2010

Prop 8 decision hours away: How broad/how narrow?

by Brian Leubitz

Well, today is the day. Sometime this afternoon, we’ll get our decision in what will go down as one of the most anticipated decisions around these parts since…well…last year when the California Supreme Court upheld Prop 8 but allowed the existing marriages to survive. In many ways, these are amazing days to be alive. No matter which way Judge Walker goes, this is history in the making. It’s a small curve in the arc of history bending towards justice (hopefully more obviously, but perhaps only taking the long view.)

So, with that as background, what are we looking for today? How do we win? How do we lose? And what defines a win? Well, I said yesterday that I’m optimistic, but there’s more than one way to skin the cat here. So, let’s just go through them, and I’m sure to miss something, so be sure to throw all my mistakes in my face in the comments. Let’s start with the downers.

  1. LOSE – Prop 8 is a permissible act of the people acting legislatively.
    Well, I’m not sure how much I need to explain this one, but it’s the worst case scenario for us.  In this situation, Judge Walker would be saying that the people, acting as the state’s legislature, had a “legitimate” interest (any interest really) in regulating against marriage equality, and that Prop 8 was rationally related to that interest.  This is the so-called “rational basis” test.  Now, the Defense of Marriage Act recently failed that test, but that doesn’t mean Prop 8 couldn’t pass.
    Of course, this doesn’t mean the case is over, just that we are on hold as we move forward through the system
  2. Win – The implementation of Prop 8 is unconstitutional.
    This is how we win, without getting everything we really want. This would clearly be a win for our community in the state of California, but would provide relatively little precedent value for other states. The basic rationale here would be that by allowing the 18,000 couples to be married, and not future couples, the state has violated the equal protection of those couples who were not able to wed. This rationale was suggested in a couple of the amicus briefs filed on behalf of the plaintiffs. It could be seen as something of a middle ground, but let’s be honest, it will not satisfy anybody who opposes marriage equality. And it further muddies the underlying issues when what we really need is clarity. Could it happen? Yes, it very well might. But this rationale would be a lame attempt at Solomonic baby-splitting that would present more questions to be answered by other courts.
  3. WIN – Prop 8 is a violation of the Equal Protection Clause of the 14th Amendment and/or the Due Process Clause
    This would be our ultimate victory, and really, what Olson and Boies are going for in this case. As I presented above, there are two possible rationales, and I’ll discuss those below. But skipping over the logic, the net result would likely be the complete nullification of Prop 8. However, Judge Walker is likely to issue a stay pending appeal, especially if he overturns Prop 8. In other words, don’t make wedding plans just yet.

I shouldn’t quite leave that logic of our win hanging in the breeze quite so much, so I’ll pull a quote from Loving v Virginia to show you the Supreme Court’s logic in that case.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Loving is from an era when the Due Process Clause, especially substantive due process, was a bit more in vogue in the law. If you’ve read much of the history of the era, you’ll know that the substantive due process clause was used to strike down restrictions on birth control in Griswold v Conn, and, ultimately, protected the right of women to choose in Roe v. Wade. Though in recent history conservatives have made the infamous (and incorrectly decided) Dred Scott case the poster boy for substantive due process, its effects (as correctly applied) were to push America in the direction of tolerance.

I’ll not give you the whole Wikipedia version of substantive due process, but long story short, it protects fundamental rights generally. But, as I said, it has fallen out of favor of late, and courts generally try to rely on the more stable equal protection clauses of the Constitution to provide a more concrete footing for their legal argument. As we have discussed in these virtual pages on a number of occasions, there are three levels of equal protection scrutiny, rational basis, intermediate, and strict scrutiny. I went over those tests back in January, so I won’t rehash all of that now. But, I will say that a strict scrutiny of Prop 8 would hold ramifications for future challenges of other laws. We would be able to more forcefully argue the case that states must show a compelling interest to discriminate based upon orientation, and that would mean a lot more in the way of wins for our side.

But, for now, this is just speculation. The real thing is just around the corner.

247 Comments August 4, 2010

Sen. Roy Ashburn’s Post-Outing Conversion Is Too Little, Too Late

by Brian Leubitz

Let’s start by saying this: Sen. Roy Ashburn (R-Bakersfield) is a coward. Sure, on occasion, he broke party ranks to vote for a budget or something. But for well over a decade, he served in the Legislature, consistently voting against any and all bills that protected the LGBT community. And then, as he points out in this confessional published on the Gay and Lesbian Victory Fund website, he was outed in a flood of police lights. As I’ve said before, Ashburn was a slow-motion train wreck. The question was never if he was going to be outed, but when and how. Of course, he then went ahead and made sure it was a big spectacle. Good work, Roy.

But this little piece of work that he published, well, it’s a real piece of work.

My past actions harmed gay people. In fact, all people are harmed when there is unequal treatment of anyone under the constitution and laws of our country. I do not believe in discrimination, and yet my votes advanced unequal of treatment of gay people and promoted the suspicion and fear that limits people from being forthright and accepted in society.

Now, from what I have lived and learned, I want to do the best that I can to advance equality and freedom for all people. Given the shame and confusion that many feel over their sexual orientation, perhaps my situation can serve as an example of both the harm that can come from denial and fear, and the opportunity to try to make things right.

Let’s run down this timeline. Ashburn gets elected while outwardly proclaiming bigotry. Ashburn legislates consistent with that outward bigotry. Ashburn gets outed at the point of a policeman’s MAGlight. And now, finally, Ashburn decides that bigotry was ridiculous.

Well, let’s all give Roy a big ol’ group hug now, right? Well, I’ll just go ahead and skip that. Perhaps you would describe me as bitter, but for my part, I’ll pass on all of the mushy stuff. While I praise traditionally conservative parties for taking an enlightened stance on LGBT issues (such as the British Tories), that’s not what this is about.

This is about one guy, who lived his life selfishly. He was too much of a coward to come out. And let’s be clear, Ashburn was representing himself as a leader. This deception is not how a leader behaves. The lying and the sneaking, are not how a leader behaves. And the suppression of his own supposed fair-mindedness is not how a leader behaves.

Call me back after Ashburn has done some real work to repair some of the damage that he has already done. Maybe then I won’t be so cynical about his conversion via police lights.

76 Comments July 23, 2010

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