Prop 8

The Advocate deconstructs the failed No on 8 campaign to defeat the California initiative ban on same-sex marriage -- and points some fingers. In particular, the Advocate blames the leaders of bisexual, gay and lesbian groups that led the campaign committee. This squares with my own reporting on the subject. These activists didn't reach out and bring in top political folks until it was too late. The Advocate adds fuel to the fire by reporting that two of these leaders -- Lorri Jean of the L.A. Gay and Lesbian Center and Geoff Kors of Equality California -- took long summer vacations. People running big campaigns typically wait until the election is over to do that sort of thing.

I live in Los Angeles' Miracle Mile, a short walk from the city of West Hollywood, which is both a mecca and haven for gays. I've been to my local movie theater twice since the passage of Prop 8, the California initiative to ban same-sex marriage. Each time, the feature came with a preview of the new Sean Penn movie, 'Milk,' about the life of the openly gay San Francisco County Supervisor Harvey Milk, who, along with Mayor George Moscone, was killed by fellow supervisor Dan White in 1978. And each time, after the "Milk" preview, the theater erupted in loud applause and a few shouted derogatory references to Prop 8.

The New York Times reported this weekend that supporters of same-sex marriage intend to use the December opening of "Milk" in their efforts to repeal Prop 8. That's a good idea--organizing needs to be done, so why not piggyback on the millions of marketing for a movie? But the Times treats this connection between a movie and direct democracy as news. It isn't.

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.

Lost in all the publicity about post-election No on 8 protests is the question of whether the 18,000 gay couples who tied the knot this year in California will see their marriages voided by the courts. Protecting these marriages is essential as a matter of humanity, of avoiding a bigger legal mess. Here's how to respond.

1. The Yes on 8 folks -- the opponents of same-sex marriage -- would be wise not to challenge these marriages in court. It would be both the decent and the politically wise thing to do. Forcing the voiding of these marriages could boomerang against their cause. I'm hearing some discussion among conservatives who favor this step, but I think this is probably too much to hope for.

2. Some of the state's best lawyers are working on protecting these couples and repealing Prop 8.  But the courts take time. The legislature and the governor -- who played coy during the Prop 8 campaign instead of showing leadership by actively opposing Prop 8 -- need to move immediately to give every specific protection to the existing marriages that they possibly can. It's unclear what form this could take, but clear statements that the initiative not be applied retroactively would be a good first step.

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.