Ballot Initiative

This San Francisco Chronicle story does a very good job explaining why it's unlikely that Prop 8 will be overturned by the California Supreme Court. The key question is whether the initiative is an amendment to the constitution, which is permitted by initiative, or is actually a revision because the court ruled in May that there is an inherent constitutional right to marriage that applies to gay and straight couples alike. Traditionally, the court has been reluctant to declare an initiative invalid because it's a "revision." The Chronicle points out this has only been done twice, and neither case would seem to apply easily to the case of Prop 8.

No surprise, but the California Supreme Court today agreed to consider whether Prop 8 is constitutional. Both sides had sought a quick move by the court, and it looks like they're going to get it. More details here.

Other Prop 8 news: In a very interesting interview with the Sacramento Bee, California Assembly Speaker Karen Bass, who is African-American, said that the post-Prop 8 debate has been "racialized"  (because of exit polls showing widespread black support for the Prop 8 ban on same sex marriage) and described how friends of her who attended anti-Prop 8 protests had racial epithets hurled at them.

Gov. Schwarzenegger, appearing Sunday on ABC's This Week, indicated he was inclined to protect the marriages of gay couples who legally tied the knot this year. These marriages could be at risk because of the passage of Prop 8. Schwarzenegger offers the caveat that such an order must be legal, and that he must first confer with Attorney General Jerry Brown, who has said he will defend Prop 8 while also protecting the existing marriages. Here's the exchange with interviewer George Stephanopolous.

STEPHANOPOULOS: In the meantime, some legal experts have suggested that you should, if you believe that, issue an edict, a ruling, that says that the marriages that have already taken place in California are absolutely legal. Will you do that?

SCHWARZENEGGER: Well, I have to get together with Jerry Brown, our attorney general, and see what the legal opinion is, because he's my lawyer, basically. And so, we always do those things together.

STEPHANOPOULOS: But you're inclined to do it?

SCHWARZENEGGER: It's a conversation that I can have with him about the -- if that's the legal way to go.

Good politicians have the ability to appear to be on both sides of an issue, but Jerry Brown -- the former governor and presidential candidate, and the current attorney general of California -- is breaking new ground in this realm. Try to follow this: Brown, a likely candidate for governor in 2010, is supportive of same-sex marriage politically. But before the state supreme court, he's defending Prop 8, the just-approved initiative to ban same-sex marriage in California. At the same time, he's defending the marriages of approximately 18,000 gay couples who took the plunge in the past five months, while such unions were legal.

I have begun to wonder whether the folks who persist in these idiotic, counter-productive protests against the victorious Prop 8 are more interested in self-righteousness than in marriage equality. Police in riot gear had to be called to the El Coyote Mexican Cafe on Beverly Boulevard in Los Angeles last night, where a restaurant manager, a Mormon, committed the grievous sin of expressing her religious views and giving $100 to Yes on 8.

The manager in question was wrong to vote the way she did, but I don't think targeting her is going to change any minds. If anything, it's likely hardening attitudes against same-sex marriage. And there's anecdotal evidence that it's turning off even those who folks who support same-sex marriage and voted No on 8. (As she peered into my eyes yesterday, my optometrist said that she and her husband had voted No on 8 but were upset by the targeting of El Coyote, a favorite eatery of theirs).. Could these protests, rather than producing shame in Yes on 8 supporters, produce embarassment in those on the side of the protestors? More protests are expected tomorrow in California, including a major event in downtown Los Angeles.

I've never cared for El Coyote, the Mexican restaurant on Beverly Boulevard in Los Angeles, even though it's within walking distance of my apartment. The best thing on the menu is the margaritas, and your blogger remains a teetotaler so he can stay sharp and detect drafting errors in initiatives. When I'm thinking Mexican, I hit the taco trucks, or maybe stop by the original El Cholo on Western or Mijares in my hometown of Pasadena. 

But I'm heading over there tonight. Why? Because same-sex marriage supporters, full of righteous anger at the passing of Prop 8, the ban on same-sex marriage, have targeted El Coyote as part of an insane, counter-productive strategy of mindless rage at anyone or anything tangentially connected to the Prop 8 effort. The niece of the restaurant's original owners gave $100 to Yes on 8. The response? A boycott and lots of Internet rage.   

People outside California may not know this, but our supreme court judges don't have lifetime terms. Every 12 years, they face "retention" elections -- up or down votesby thep ublic on whether they remain on the court or not. Two judges -- including Chief Justice Ronald George, the author of the 4-3 opinion in May that legalized same-sex marriage -- face retention elections in 2010. (The other judge up for retention was in the minority in the gay marriage opinion). Before 2010, the court will decide whether or not to overturn Prop 8, the ban on same-sex marriage just passed by voters. Writing at Fox & Hounds Daily, Joel Fox suggests George could face a campaign against his retention no matter how he decides on Prop 8.

The results of Prop 11, the redistricting reform initiative in California, still remain too close for most media outlets to call. At Fox & Hounds Daily, I try to find a pattern in the scattershod map of the votes tallied so far.

The New York Times seems to think so. In this piece, the Times says that an Arkansas initiative to ban adoption by unmarried couples (a measure clearly targeted at gays) passed because white Arkansas Democrats didn't like Obama and stayed home, thus hurting the measure. The evidence of that is hardly clear. Turnout appears to have been down among white Democrats, but it's far from clear that such Democrats who stayed at home would have opposed the ban. It's common to link the results of candidate races to the results of initiative elections, but the correlation is not strong. In California, some are blaming the victory of Prop 8 on socially conservative African Americans who turned out for Obama but also supported a ban on same-sex marriage. Maybe. But the margin in that race is such -- and the percentage of black voters is small enough -- that the gay marriage ban might well have succeeded in spite of any turnout effect. The margin in Arkansas was even wider on the adoption measure.

Marty Wilson, a leading Sacramento political consultant who is a favorite of your blogger, managed the campaign in favor of Prop 10, the T. Boone Pickens-backed $5 billion general obligation bond to fund alternative fuels. Prop 10 lost badly, despite the fact that it had overwhelming financial support and an opposition with little funding.

Wilson, a good-natured sort, asks himself the following question: at Fox & Hounds Daily: “Marty, how the Hell did you lose the Proposition 10 campaign when you were funded and your opposition had no money?” To which I answer, “It was harder than you think.” The rest of the story is here. His explanation of why the measure went down -- the cost, the size of the state's budget crisis -- matches the political problems I discussed earlier this fall in the Scientific American.