Why Prop 8 Proponents should stay away from the Supreme Court

So as everyone who’s not been living under a rock for the past few days knows, that in a 2-1 vote the 9th Circuit upheld Judge Vaughn Walker’s ruling that Proposition 8 was discriminatory and had no justification for that discrimination and so was invalid.

Of course from corner to corner of the country the anti-equality crowd is howling because they know that their “shining moment” was Proposition 8, it never could get better than discrimination in law in California, ostensibly by the vote of the people. They knew they could never win a victory sweeter than that. Of course they’d hope to get a federal marriage amendment but that was always a pipe dream.

They know if they are honest that this is the beginning of the end, and it may take 20 years but equal marriage will happen in every state. However they are making a strategic error by appealing for the Supreme Court. As it stands they’ve lost the battle in California, but loosing at the supreme court could loose them the war.

Sotoyamor, Kagin, Breyer, and Ginsberg are solidly pro-equality and the opinion handed to them by the 9th circuit and Judge Walker is one that they could apply to all such bans across the US from DOMA to the ban in Texas.

Kennedy is always seen as the swing vote, and many on the right hope that his statements about marriage equality in the Lawrence vs Texas ruling mean he’s not in favour of marriage equality. However he made it clear that he feels that prejudice against gay and lesbian persons is not a universal constant and its well past time to move past it.

Now if you look at the remaining members of the court, Alito, Scalia, Roberts and Thomas can any of them be taken off the board.

Well Scalia and Thomas are known to have radical views on the constitution that seem outside the view of any other reputable constitutional scholar, and so even with the quality of the Walker ruling they can be expected to vote against marriage equality.

So that leaves the two Bush Appointees, Alito and Roberts who were political appointees placed there as part of the long game to shift the court to the right. They have shown themselves to be generally conservative on most viewpoints, including some infamous ruling such as “Citizens United”. However both have been careful and measured on their viewpoints, neither having faced an issue of equality while sitting on the Supreme Court or prior to this as justices.

What this means is that while there is some risk that the court might say that the Prop 8 ruling only applies to California, theres a possibility that they could see it as applying to all such discriminatory amendments and laws throughout the entire country.

They have lost California, I don’t see any combination of justices that would rule that Proposition 8 was constitutional, but if they go down this route, then they risk bringing equality to every State in the Union.

Why We Need To Take California Back at the Ballot Box

So here’s the rub, we screwed up big time in 2008, when we let Prop 8 pass.Did I Vote on Your Marriage

Yes, I know I’m talking about a campaign I was mostly only looking at from the peripheral before I really got involved in any activism. I realise that many of these actions happened before I had the bravery to walk down the street as who I am, but I use the term “we” to describe the equality movement as a continuous movement of which every brave soul who stands up, true to themselves is a part of.

However despite all the work of the NoH8 campaign, the general mood of lgbtqiappqa people around California and the USA, was that Prop 8 had no chance of passing. I remember watching in utter disbelief as the results came in.

In 2003 we had a move forward so basic and fundamental, that said something so utterly simple, that being gay was no longer a crime. The backlash as almost immediate, with the republicans using homophobic hate to fuel their re-election of a man who proudly admitted he would block any expansion of hate crimes if it protected gay people.

If the equality movement had crumbled at every set back, the President might still be in chains, the Secretary of State might still be the property of her husband, and I would be either in prison, or dead. Instead of faltering, we began to fight back with a renewed passion, in part, because we knew if we did not fight, hate for our very being would be codified into the constitution.

Fight Back!

Massachusetts was the first state to legalize marriage equality, and we slowly made moves to bring in civil unions, domestic partnerships and in a few states marriage equality, when the event happened. The California Supreme Court struck down the laws on marriage equality as discriminatory. Suddenly we had a victory, and it was an unmatched game changing victory. We’d won in one of our home states, and we could already smell DOMA on its deathbed. But from across the USA haters gathered, seething in their unholy disgust of ordinary americans daring to demand their rights.

They came to California with their tax-exempt funds and loyal minions who thought they were doing the work of a loving god who wanted them to fight equality. Lies, mistruths and whispers were spread to scare people about the simple concept of equality. Those lies tipped the balance, and while we’d come a long way since the 70% vote in 2000.

Now with my limited legal understanding, and with 5 minutes I can drive a truck through the constitutionality of Prop 8, and I have no doubt that once it gets to the supreme court not even Bush’s handpicked stacking of the court can argue that its just or constitutional to strip rights by majority rule. I agree that we can win this without another ballot initiative, but I think this time we have to put up up for the popular vote.

Prop 8 = American Taliban

31 states have voted on our rights, and 31 have made the wrong choice, the un-American choice, and a choice will stain the reputation and soul of every one of those states even more perhaps than those who had anti-miscegenation laws on their books. The religious right uses it in every argument, in every case, that it managed to bring intolerance to every state no matter how blue it is.

This is a war, but not of weapons and power, but one of ideas, on one side there is hate, cruelty and ignorance, and the other is a side of love, compassion and wisdom. We had a huge victory in New York, thats turned the tide against NOM and its allies, across the country from deep blue to faintly red states are talking about marriage equality, not to mention the Repeal of DOMA is being talked of and supported by significant politicians who were too cowardly to do so before.

I don’t want to fight a war, I want to find the right words to melt the most bigoted heart, and I’m still looking for those words, but as I’ll write in another article, about my experiences trying to communicate with the heathen has worn even my godlike patience to the point at which I acted in a way that I’m not exactly proud of.

At stake is more than our own selfish interest, its for the interest of every single LGBTQIAPPQA youth out there who’s vulnerable and alone because they are surrounded by christian fundamentalists, in deep red and even deep blue enemy territory. Its about telling the world that you are marrying the person you want to spend the rest of you life with. Its about building a life with someone and not having to carry around legal documents just to prove that they are your spouse. Its about employers respecting your family just the same as any other family, in sickness, and in health.  Its  for when that bond is strained by illness, and eventually snapped by death, and being treated the same as any other widow, by your friends, your town, your state and your government as every other new widow struggling to make sense of the life they have lost. Its about our children, and our families being given the same rights, and treated with the same respect as others.

 

So my fellow champions are you prepared to fight the next hard battle and take us one step closer to the victory of true equality.We’ve got to risk a lot of support, a lot of resources on a battle many think is already won.But we need to win it in a way that they cannot dismiss, they cannot rubbish and they cannot ever hold over us again. California needs to vote, not because the vote is politically, socially or constitutionally ready, but because California needs to put right the contamination of hate that the people tried to put into their constitution.

This is a strategic battle for the hearts and minds of every American be they be living true to themselves in the Castro, or hiding from themselves filled with self loathing on the Focus on the Family church campus. There is no stronger signal that can be sent, than for California to vote unequivocally for equality.

We need some hope and a symbol, and thats why we need to put the repeal of Proposition 8 on the ballot in 2012. We can and we must take California back.

John Yoo on Proposition 8

Here’s the legal analysis provided by John Yoo, counsel for George W Bush on the Proposition 8 ruling by Judge Walker.
I know that John Yoo is a war criminal, and should have been long ago disbarred for intentional bad faith legal work on creating a legal shield for the torturers at Guantanamo Bay. However he still represents the right wing of legal thought, and so its interesting.

His admission that if you decriminalize being gay (which few people seem to remember only happened in 2004), you have to legalize marriage equality was interesting, however his tone and speech suggested he would support trying to reverse Lawrence vs Texas as part of a larger strategy to stop marriage equality.

The tired argument of enforced equality has been used time and time again by people trying to stop the march of equal rights. The courts have interpreted and moved ahead of the populace many times throughout US and legal history.

The attitude that you cannot call bigotry, bigotry is offensive to me. The people of California who voted for Proposition 8 were either bigoted or mis-informed…

The other thing they seem to ignore is the question of the difference between an amendment and an addition to the California constitution, and whether the actual ability of a simple majority to strip a minority of the rights exists.

All in all it was a weak lackluster analysis of a legal issue that is what you’d expect of hack lawyer like Yoo.