1st Anti-Gay Ballot Measure (To Repeal SB48) Ready To Go

Bad news about SB 48, the FAIR Education Act Governor Brown signed into law on July 14, 2011. The heterosexual supremacists who brough California Proposition 8 have filed a referendum challenge to the law and received approval from Attorney General Kamala Harris to start circulating petitions in order to gather the 504,000 valid signatures to submit to Secretary of State Debra Bowen to place the question of the measure's legality on the June 2012 ballot.

Karen Ocamb of LGBTPOV has the scoop:

Referendum to Overturn Non-Discrimination Requirements for School Instruction.

Summary Date: 07/25/11 | Circulation Deadline: 10/12/11 | Signatures Required: 504,760

Proponent: Paulo E. Sibaja (909) 996-9391

If signed by the required number of registered voters and filed with the Secretary of State, this petition will place on the statewide ballot a challenge to a state law previously approved by the Legislature and Governor. The law must then be approved by a majority of voters at the next statewide election to go into effect. The law would require school instructional materials to recognize societal contributions of various groups; and would prohibit school instructional materials that reflect adversely on persons based on their ethnicity, gender, sexual orientation and other characteristics. (11-0023.) (Full Text)

By a referendum, all passage of the measure would do is take back the laws of California to the way they were prior to July 14, 2011. LGBT people and the disability community would not be required to be included in instructional materials. Previously the law mandated the teaching of many other groups, mainly racial and ethnic minorities and Equality California and Mark Leno sponsored legislation to add LGBT and people with disabilities to the list (and change American Indian to Native American and Asian Pacific to Asian Americans and Pacific Islanders).

This is basically a proxy fight over gay rights the right wing is hoping to use to increase conservative turnout in the June 2012 election which will be an incredibly important election (maybe more important than the Presidential election in California) as (almost) every single district-based political office in California will be up for election for the first time in a redrawn district.

I've also heard rumors of a second anti-gay ballot measure which would attempt to divorce the 18,000 same-sex couples that got married in California prior to Proposition 8 and preempt any positive decision striking down Proposition 8 as violating the federal constitution. This second measure seems like even more folly because any measure seeking to replicate or even out do Proposition 8 in anti-gay fervor would clearly also be subject to a similar lawsuit which will probably nullify that measure.

POLL: CA Voters Reject "Tough On Crime" Policies

Excellent news from California! In the midst of a financial meltdown California voters are beginning to realize that they can not continue to spend billions of dollars locking up non-violent criminal offenders in more and more prisons.

The Los Angeles Times reports:

The ailing economy far outweighs crime as the top concern for most people today, the pollsters said. That, along with the court order, could help explain voters' new receptivity to changes long sought by prisoner-rights advocates:

— More than 60% of respondents, including majorities among Democrats, Republicans and those who declined to state a party preference, said they would support reducing life sentences for third strike offenders convicted of property crimes such as burglary, auto theft and shoplifting.

— Nearly 70% said they would sanction the early release of some low-level offenders whose crimes did not involve violence.

— About 80% said they approve of keeping low-level, nonviolent offenders in county custody — including jails, home detention or parole — instead of sending them to state prisons. The same percentage favors paroling inmates who are paralyzed, in comas or so debilitated by advanced disease that they no longer pose a threat to public safety.

The pollsters noted that people don't generally favor the release of convicted criminals. But "when it comes to prisons," said Linda DiVall of American Viewpoint, "voters are looking for solutions that don't raise taxes or take money from other priorities like education."

Only 12% of respondents said they'd be willing to accept less state spending on healthcare or education to pay for more prisons. And less than a quarter of voters want to pay higher taxes to build prisons or ship inmates to private lockups in other states to comply with the courts.

This year the state plans to spend $9.8 billion on prisons, making it the third-highest general fund expenditure, behind education and healthcare.

"We spend such a large portion of our budget on crime and prison systems, and we get so little for it," said Amanda Hixson, 59, a Democrat from Sacramento.

Politicians determined to burnish their law-and-order credentials try to scare the public about releasing inmates early, Hixson said, "but some guy who's got three pot busts just isn't going to be that terrifying on the street."

I look forward to voting on ballot measures in 2012 which will finally end this madness which seeks o bankrupt the state by spending ridiculous amounts on criminal justice as compared to education.

MN Legislature Sends Prop 8 Copycat To 2012 Ballot

After nearly 6 hours of debate the Minnesota House voted 70-62 to send a proposed constitutional amendment which would ban same-sex marriage to be decided by voters on the November 2012 presidential ballot. The measure had previously passed the Minnesota Senate 38-27.

The Washington Post reports:

State law already prohibits gay marriage, but supporters of the proposed amendment said it’s necessary to prevent judges or future lawmakers from making it legal in Minnesota. Critics said the plan is divisive and would put discrimination into the constitution.

The amendment would define marriage as only between a man and a woman.

The state Senate already passed the measure. Democratic Gov. Mark Dayton has no power to block it from the ballot, but said before the vote Saturday that he would fight its passage. Dayton called the amendment “un-Minnesotan.”

Rep. Steve Gottwalt, the bill’s sponsor, said voters should have the final word on the issue.
“This is not about hatred. It is not about discrimination or intolerance,” said Gottwalt, R-St. Cloud.

But another Republican, Rep. John Kriesel, described how losing his legs in Iraq began a personal transformation of his views on the issue. He said he would have supported the amendment five years ago, but has since realized that the country for which he fought should not deny the right of two people who love each other to marry.

“I’m pleading with you to vote no,” said Kriesel, R-Cottage Grove. “I’m begging you.”

So far we know that Minnesota will be voting on the marriages of other people. There are amendments pending in North Carolina and Indiana. There are also discussions in Maine, California and Oregon about going to the ballot to repeal previously passed anti-gay marriage amendments.

MN Poll Shows 55% Oppose Anti-Gay Marriage Amendment

A poll has been released which shows that the proposed "Son of Prop 8" constitutional amendment in Minnesota to ban marriage equality is facing majority opposition 55% against, 39% for. Although this is encouraging news, I    would remind folks that early in the Proposition 8 fight there were multiple polls showing 55+ percent opposition to Proposition 8 and after a public advertising campaign filled with lies and deceit the ballot measure passed 53-47 in California in November 2008.

The more important poll question in Minnesota is whether a majority of likely voters supports marriage equality, if they do, and a good campaign is run, then there's a chance (small one, I believe) of defeating the proposed discriminatory amendment to Minnesota's constitution at the ballot in 2012.

MN Senate Approve Prop 8 Copycat Measure 38-27

The Minnesota State Senate has approved a constitutional amendment by a vote of 38-27 that would ban marriage equality, despite the existence of a state statute that already bans the practice. In Minnesota, a constitutional amendment can be put on the ballot after passing the state legislature by a simple majority in one legislative session.

The discriminatory measure has been hotly debated with almost all Democrats opposing the measure and Republicans supporting it, generally with religious-based arguments about "defending marriage." A recent editorial in the state's largest newspaper blasted such thinking in opposition to the legislation and a video of testimony of State Rep. Steve Simon asking "How many more gay people does God have to create before we ask ourselves if he wants them around?" has gone viral.

Republicans won control of both houses and the measure is expected to pass the State House, as well. In the Senate, all but one Democrat opposed the measure and all Republican voted for it. In the House, there are 72 Republicans and 62 Democrats (before the 2010 election there were 47 Republicans and 87 Democrats). Just goes to tell you what Republicans do when they get majority control of legislative bodies.

The question which would be presented to voters if the Senate version of the amendment is approved by the Senate is:

Shall the Minnesota Constitution be amended to provide that only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota?

So, with wording eerily similar to 2008's Proposition 8, in 2012 a NO vote would be needed to preserve the possibility of marriage equality in Minnesota, although marriage equality would be banned by statute in the status quo. A yes vote would insert the language into the constitution and would require another amendment to be  passed by voters to repeal it and enact marriage equality.

Hat/tip to TowleRoad and @xavierla

WATCH: Devastating Testimony Against MN Marriage Amendment

State Representative Steve Simon (DFL) testified in opposition to a proposed anti-gay constitutional amendment to "restrict marriage as between a man and a woman," which in Minnesota needs to pass both houses by a simple majority this year and then be approved by a majority of voters on the ballot in 2012 to become law.

Rep. Simon asked a devastating question which should surely give even the most ardent heterosexual supremacist pause before a final vote on the measure: "How many more gay people does God have to create before we ask ourselves if he wants them around?" (Simon was responding to the fact that much of the opposition to marriage equality and support for writing discrimination in the Minnesota state constitution appeared to be religiously motivated despite the fact that the state only licenses civil marriages which does not influence who any church has to marry or recognize as married.) The House committee later voted 10-7 to pass the amendment to the Senate floor.

Republicans have a brand new majority in both House and Senate as of the 2010 so they should have the votes to put the measure on the ballot. It does not require Democratic Governor Mark Dayton's signature, who has expressed his opposition to the measure and his support for marriage equality.

Interestingly, at least one House Republican, Afghanistan veteran John Kriesel has announced that he will oppose the measure.

The Minnesota Star-Tribune quotes Rep. Kriesel:

"I look at it as: We are all equal," said the first year representative from Cottage Grove.

"It is not right. I can't do it. I'm very upset about this vote. I don't like it. I think it sends the wrong message. You live once in your life and I've learned that the hard way," said the military veteran, who lost his legs while serving in Iraq Afghanistan. "You never know when it is going to be your time. People fight to find happiness....You find someone you love and now other people are saying because I don't consider that normal, you can't do it?"

"It's just wrong," Kriesel said. "There is not anything that can move me on this."

He may be only Republican lawmaker to oppose the amendment. He said he is "working hard" to bring other colleagues along.

Let's hope there are more fair-minded Republicans like Rep. Kriesel in the Minnesota Legislature.

Arkansas Supreme Court Strikes Down Anti-Gay Initiative

Great news out of Arkansas! (I don't think I have typed that sentence very many times before.) In November 2008, voters passed Initiative Act 1 by a vote of 57-43 but Thursday the Arkansas Supreme Court unanimously ruled it unconstitutional and struck the measure down in Arkansas Dep't of Human Services v. Cole. The ballot measure banned unmarried, cohabiting couples from being considered for the adoption or foster care of children in Arkansas. Of course, Arkansas also bans same-sex couples from marrying, so Initiative Act 1's passage implicitly banned all same-sex couples from adopting or fostering children in the state.

As always, Chris Geidner of Poliglot summarizes the legal issues perfectly:

The court noted: 

We hold that a fundamental right to privacy is at issue in this case and that, under the Arkansas Constitution, sexual cohabitors have the right to engage in private, consensual, noncommercial intimacy in the privacy of their homes. We further hold that this right is jeopardized by Act 1 which precludes all sexual cohabitors, without exception, from eligibility for parenthood, whether by means of adoption or foster care. We quickly note that in certain instances, such as in custody, visitation, or dependency-neglect matters, the State and the circuit courts of this state have a duty to protect the best interest of the child. We will discuss this issue more fully below.

Then: 

We strongly disagree with the State and FCAC’s conclusion that if this court finds that the categorical ban on adoption and fostering for sexual cohabitors put in place by Act 1 violates an individual’s fundamental right to sexual privacy in one’s home, state courts and DHS will be prohibited henceforth from considering and enforcing non-cohabitation agreements and orders in deciding child-custody and visitation cases as well as dependency- neglect cases. That simply is not the case. The overriding concern in all of these situations is the best interest of the child. 

Finally: 

Thus, Act 1 directly and substantially burdens the privacy rights of “opposite-sex and same-sex individuals” who engage in private, consensual sexual conduct in the bedroom by foreclosing their eligibility to foster or adopt children, should they choose to cohabit with their sexual partner. The pressure on such couples to live apart, should they wish to foster or adopt children, is clearly significant. ...

Here Act 1 presents a pernicious choice for Cole. She can either give up her fundamental right to sexual intimacy in her home free from investigation by the State into her sexual practices in order to adopt or foster or forego the privilege of having children by adoption or fostering. We hold that the burden inflicted on her is direct and substantial. 

The court, thus, concluded: 

We conclude that the individualized assessments by DHS and our trial courts are effective in addressing issues such as relationship instability, abuse, lack of social support, and other factors that could potentially create a risk to the child or otherwise render the applicant unsuitable to be a foster or adoptive parent. These would be the least restrictive means for addressing the compelling state interest of protecting the welfare, safety, and best interest of Arkansas’s children. By imposing a categorical ban on all persons who cohabit with a sexual partner, Act 1 removes the ability of the State and our courts to conduct these individualized assessments on these individuals, many of whom could qualify and be entirely suitable foster or adoptive parents. As a result, Act 1 fails to pass constitutional muster under a heightened-scrutiny analysis.

If an Arkansas Supreme Court will strike down such a statute it shows that heterosexual supremacists trying to pass similar ballot measures in other states would very likely face even more hostile courts in other jurisdictions.

An important win for the good guys! Another reason I'm a card-carrying member of the ACLU.

EQCA Asking For Input On Possible 2012 Prop 8 Repeal

Equality California Announces Community Town Halls, Polling to Discuss Possible Repeal of Prop 8 in 2012

San Francisco – Because legal experts are advising that the Proposition 8 federal challenge could take years to resolve, Equality California is launching a community engagement initiative to start a discussion on whether to return to the ballot in 2012 to repeal the marriage ban or whether to wait for a final decision by the courts. Before making any recommendation, Equality California will survey its membership, hold 10 town halls across the state and an online town hall, conduct a poll of likely 2012 voters, consult with political experts, coalition partners and engage with its members and the LGBT community. Equality California will announce results of polling and analysis by Labor Day.

“For two people who love each other and want to be married it is heartbreaking that an unfair law keeps them and their families apart,” said Jim Carroll, Equality California interim executive director. “We were truly optimistic that the court case to overturn Prop 8 would restore marriage equality by the end of 2010 or early this year, making a ballot measure unnecessary. Despite the amazing work of the dedicated lawyers leading this effort, there is no guarantee how or when the courts will ultimately rule.

“As a community, we will figure out together whether we wait until the courts rule or whether we repeal Prop 8 at the ballot box. We urge LGBT community members and our allies to join the conversation.”

Details and a complete schedule for community town halls are forthcoming with initial meetings scheduled for San Francisco on May 19, West Hollywood on May 25 and San Diego on June 2.

U.S. District Judge Vaughn Walker ruled that Prop 8 was unconstitutional in August 2010. However, that same month the Ninth Circuit Court of Appeals issued a stay, preventing same-sex couples from marrying while the case is on appeal.

On January 4, 2011, the federal appeals court asked the California Supreme Court for guidance on an issue related to whether the sponsors of Prop 8 have standing to pursue an appeal. The California Supreme Court said will consider the question with oral arguments to be held as early as September, meaning a decision likely would not come until the end of this year at the earliest.

To take the survey, please visit: www.eqca.org/Prop8survey

BREAKING: CA Sup Ct Agrees To Decide Standing Question

The California Supreme Court unanimously agreed to decide whether Proposition 8 proponents have standing to defend the anti-gay marriage initiative in the federal lawsuit of Perry v. Schwarzenegger which is currently pending before the 9th U.S. Circuit Court of Appeals.

Specifically, the Court will decide the question:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

If the State Supreme Court rules they DO NOT have standing, the 9th Circuit panel may dismiss the lawsuit immediately as moot, which would lead to marriage equality being legal in California again. If the State Supreme Court rules that they DO have standing (a more likely result) then the 9th Circuit will have to decide the case, which they could do on the merits of the claim that Proposition 8 violates a federal constitutional right to marry. That decision could be appealed to the US Supreme Court and would have national implications.

According to Chris Geidner, the State High Court issued a relatively brisk briefing schedule:

The opening brief on the merits is to be served and filed on or before Monday, March 14, 2011.  The answer brief on the merits is to be served and filed on or before Monday, April 4.  A reply brief may be served and filed on or before Monday, April 18.

Oral arguments are scheduled for "as early as September 2011" and this is significant because the Court must issue a written ruling within 90 days of an oral argument or else it does not get paid, which would probably mean the 9th Circuit would be getting Perry v. Schwarzenegger back in early 2012. So, basically a year has been added to the time in which marriage equality could be decided by a court ruling in California.

CA Sup Ct Rumored To Release Prop 8 Response Next Week

The California Supreme Court will likely let us know next week if they will be deciding whether the Proposition 8 proponents have standing to defend the initiative in federal (or state) court when the government officials tasked with that responsibility (the Governor and Attorney General) decide not to.

From The Los Angeles Times (New chief justice says California Supreme Court will decide soon on entering Proposition 8 fray):

Chief Justice Tani Cantil-Sakauye said Wednesday that the California Supreme Court may decide "as soon as next week" whether to weigh in on the federal Proposition 8 appeal and expressed hope that a Southern California Latino would be chosen to succeed departing Justice Carlos R. Moreno.


[...]


The U.S. 9th Circuit Court of Appeals has asked the California high court to determine whether state law gives sponsors of initiatives the authority to defend them legally when state officials refuse to do so.

The state court has been highly deferential to initiatives in the past. If the court rules that initiative backers have special status under state law, the 9th Circuit would be more likely to rule on the constitutionally of Proposition 8.

Lawyers and law professors who have followed the case suspect that the 9th Circuit was prepared to dismiss the appeal by backers of Proposition 8 on the grounds that only state officials can challenge the trial court's ruling against the measure. Gay rights lawyers say such a ruling would mean Proposition 8's demise, but it would have no direct effect on same-sex marriage outside California.

Keep your fingers crossed! Actually either way the California Supremes is a win-win for us. If they rule that proponents do not have standing, and the 9th Circuit panel rules in our favor we'll regainmarriage in california relatively quickly but it will not affect the rest of the country. If they rule the proponents DO have standing then a more substantive appellate circuit ruling on why Prop 8 is unconstitutional will be forthcoming and it is unlikely the Supreme Court of the Unite States 9and the Pres8dent) will be able to punt on opining on Prop 8's legality.