I've just completed a very fast reading of the California Supreme Court decision this morning that upholds the Prop 8 ban on same-sex marriage -- and also upholds the legality of the approximately 18,000 gay couples who got married in the state last year.
As readers of this blog know, I'm a strong supporter of same-sex marriage -- but I think the court did the right thing. The California constitution is different than the U.S. constitution. The people have strong powers to change the constitution through the ballot initiative. To overturn Prop 8 would have forced the justices to rewrite the state constitution and strip the people of those powers. I believe that California's initiative process should be less powerful and more flexible, but this wasn't the case to do something about it.
The decision makes plain that Prop 8's effect is confined to one word; marriage. The court writes that gay couples must continue to have all the rights and responsibilities of married couples. But their unions can't be called marriages, because of Prop 8.
Yes, according to Travis Ballie, writing at Daily Kos. He thinks it would be a stronger statement to have voters -- rather than judges -- overturn the Prop 8 ban on same-sex marriage. I tend to agree, since the goal is not simply legal same-sex marriage in California but marriage equality nationwide.
You may have noticed that your blogger has been ignoring the hottest direct democracy story in the country: the controversy over Miss California's remarks in opposition to same-sex marriage (and thus in favor of the Prop 8 ban) in her home state.
Your blogger thought of posting on this subject, but worried it might seem like a cheap stunt to drive traffic (like the bloggers who add "Britney Spears" to the topics lists on their posts). Or a desperate bid for attention. Or that some might think that the picture of a beauty pageant queen had no place on the web site of a serious think tank.
But sometimes, the direct democracy news demands what the direct democracy news demands. And so I've waded into the tabloid swamp, via this item at Fox & Hounds Daily.
Also, I feel I must offer one unrelated bit of political analysis to deepen public understanding of Miss Prejean's ballot initiative stance. While your blogger strongly disagrees with her on Prop 8, her position is quite understandable, geographically speaking. The media organizations covering this public controversy have overlooked the important fact that she is from the San Diego area, which has been the unofficial headquarters of the same-sex marriage opposition in the state. Churches there provided much of the institutional support for the Prop 8 campaign.
In Prop 8-land, people are buzzing about this: The Rev. Rick Warren, the evangelical Southern California pastor who gave the invocation at President Obama's inauguration, told Larry King last week that he didn't campaign for Prop 8, the California initiative ban on same-sex marriage. In fact, he did. In this Politico story, Warren's pr agents try to walk this one back by arguing that Warren was too tired from his Holy Week duties. Apparently, exhaustion makes one more favorable to same-sex marriage. Which suggests a strategy for the likely initiative battle to overturn Prop 8 in 2010: set off fog horns and shine bright lights in key precincts in the middle of the night.
On a more serious note, Warren's vacillation is as strong a sign as any which way the public is moving on this issue.
I was interviewed yesterday for a CBS News "The Early Show" piece on same-sex marriage that appeared this morning. With the recent legalization of such marriages in Iowa (by a unanimous Iowa state supreme court) and in Vermont (by the legislature), there is a sense of momentum around the cause of marriage equality. I'm not that optimistic. The politics even of reversing the federal ban on recognition of such marriages is too dangerous even for a Democratic Congressional majority and a Democratic president who know such a ban is wrong. And some two dozen states have bans on the books. so the process of unwinding such bans could take a decade or more, despite public opinion that is shifting in the direction of same-sex marriage.
The CBS producer asked me a good question: what would it take to speed up the process? Having more courts and legislatures in more states legalize such marriages would help, but that's a slow path. For progress, same-sex marriage supporters need to start winning ballot initiative elections and soon. In fact, I wonder if the quickest path to widespread recogntion of same-sex marriage would be to pick a big fight in a key swing state that has the initiative process.
The California Supreme Court hears the challenges to Prop 8 tomorrow morning. And you may have heard that Cal Channel, which broadcasts government hearings, will show the hearing live on its web site.
But as someone who has long experience with Cal Channel, don't count on being able to access that video. Cal Channel is a small operation that is decidedly not ready for prime time. This year's State of the State address -- an essentially meaningless speech that few cared about -- was a minor disaster, with the Internet feed going in and out. It's a good bet that Cal Channel's servers will be quickly overwhelmed by interested parties. Cal Channel's web site has already posted the following warning: "Due to the high demand we expect for this event, if you have problems connecting then the server has reached its limit. Please try back later and watch the video in our archive when it concludes." D
If you want to see it, you're better off looking for it on TV (check your cable provider in California for those who have Cal Channel). Expect some cable news channels to show parts of it.
Canyon Ferry Road Baptist Church in East Helena, Montana, had supported a 2004 ballot initiative declaring that marriage was between a man and a woman. So state officials said the church was an "incidental campaign committee" and had to disclose its expenditures. A federal appeals court ruled this week that the state got it wrong and violated the church's First Amendment rights in the process, according to the AP.
Remember the big post-election protests by the No on 8 side after the victory of Prop 8, the California initiative to ban same-sex marriage? They were followed by efforts on the Internet to harass individual donors to Prop 8. There were boycotts of the businesses of Prop 8 supporters and attempts to cost Prop 8 supporters their jobs. These tactics represented a strategic blunder by supporters of marriage equality.
The protests are over now, but the damage continues. Don't agree? Consider this federal lawsuit (the complaint is here) filed by same-sex marriage opponents -- that is, backers of Prop 8. They are challenging the constitutionality of California's rules requiring the disclosure of full names and addresses of those who donate to ballot initiatives. The claim? That the disclosures allow opponents to harass donors and thus put their safety at risk.
The lawsuit is more political than legal -- the legal theory is novel and thus unlikely to gain much traction. But the Prop 8 supporters know that the over-the-top post-election tactics of Prop 8 have become a political vulnerability for same-sex marriage supporters. The lawsuit will keep those tactics in the news.
The Courage Campaign, a progressive web site and organization in California, is inviting supporters of same-sex marriage to attend the first "Camp Courage" in Los Angeles later this month. What kind of camp is this? It's a camp for training people to organize to repeal Prop 8 and secure marriage equality for gay couples. It may sound a bit strange, but it's exactly the sort of planning and organizing that same-sex marriage supporters need to be doing. The camp concept appears to be modeled on the so-called "Camp Obamas," the weekend training sessions that the Obama conducted to turn volunteers into organizers.