Proposition 8 Finally Ruled Unconstitutional

I can’t get married nor do I want to but this is still a win for our communities (regardless of what I think about the institution of civil marriage).

The most important bit from the 138 page ruling:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Just a note, the court order has been stayed so no one can get married. This decision is likely to be appealed all the way to the United States Supreme Court. So while the fight is long from over, we’ve won the battle this time around.

More later. Time to party tonight!

Revisiting the Letter from Birmingham Jail and a Report on Join the Impact San Francisco 11/15


I have already written about how tolerance discourse has been twisted by the media and proponents of H8 to characterize us as militants, unlawful, undemocratic, fascist and even terrorists.

To every person that is pro-gay marriage but bewildered and unsupportive of the uprising among LGBT people and allies, this paragraph by Dr. King is quite apt and to the point:

First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

Forget the moderate who wants to wait for laws to change. I am disappointed with the ‘liberal’ that believes in equal rights but votes to ban ‘gay marriage.‘ I am disgusted with the undocumented students around America who call for an end to discrimination against immigrants but post ‘Yes on H8’ videos. I am annoyed at so-called gay icons acting like ‘Uncle Toms’ of the gay community telling us not to ask for ‘marriage rights.’

Stop telling the LGBT community to ‘wait’ for change; stop telling us to not demand our civil rights. Playing ‘Mr. Nice Gay’ and ‘waiting’ has gotten us to this juncture where discrimination has been shamefully written into the California Constitution. As Dr. King wrote in the Letter from Birmingham Jail:

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was “well timed” in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word “Wait!”… This “Wait” has almost always meant “Never.” We must come to see, with one of our distinguished jurists, that “justice too long delayed is justice denied.”

Now is not the time to ‘wait and watch.’

Read More …

CA Supreme Court Gets Set For Another Nail-biting Decision on Same-Sex Marriage


A loud cheer was heard in the LGBT community today when the California Supreme Court accepted three lawsuits against Prop. 8.

The last time Justice George heard such a cheer from the LGBT community was when his court declared same-sex marriage ban unconstitutional on May 15, 2008.

“I think there are times when doing the right thing means not playing it safe.”

Justice George said it had been one of the most difficult cases of his life. Maybe he spoke prematurely as this one seems to much more crucial. Lets hope he does not play it safe — he is up for retention in 2010 and no doubt the Yes on 8 would launch a recall effort for this Republican-appointee and others who vote in favor of civil rights for LGBT couples.

[Advice for the premature recall effort: 6 of the 7 judges on the Court were appointed by Republicans, so recall away. We would get more liberal judges on the Court who would definitely be more pro-gay].

The Supreme Court has set an expedited schedule for the ruling that can be access here.

The Court is asking for briefs on the following questions:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

(3) If Proposition 8 is not unconstitutional, what should happen to the same-sex marriages performed before Prop. 8 took effect?

Justice Moreno wanted an immediate stay on Prop 8 – He is the more liberal wing of the court and no prices for guessing which way he will vote. Justice Kennard wanted a separate motion filed for the right-wingers challenging the existing 18000 marriages and refused to sign on the motion.

I don’t know about (1), but (2) and (3) I can predict.

When the Supreme Court threw out the ban on gay marriage earlier in the year, the court also ruled that discrimination against gays and lesbians would be held under ‘strict scrutiny’ exactly like discrimination based on race or sex. Prop. 8 tells the Court in no unclear terms that the majority can decide what particular groups can be afforded ‘equal protection of the laws’ under the California Constitution and my pro-gay bias aside, I have LITTLE doubt that the Supreme Court will declare the measure as a gross violation of ‘separation of powers.’ GOODBYE PROP. 8

I doubt the Court will come to (3) but since the measure is not written as retroactive, it does not apply retroactively. Ex-post facto. The same-sex marriages performed would still be recognized by the state of California.

Four Ways the California Supreme Court Could Rule on Prop. 8

I am hoping this is my last Prop. 8 blog till at least the weekend.

I figure there are four ways for the California Supreme Court to rule on this Prop. 8 mess in the coming week.

1. Injunction Relief

A reader suggested that I look into Romer v. Evans – the case goes like this:

In 1992, voters in Colorado approved Amendment 2 by 53.4%, which nullified existing anti-LGBT discrimination ordinances. The District Court questioned the constitutionality of the proposition and granted a temporary injunction against the proposition till a trial was scheduled by the Colorado Supreme Court. The higher court upheld the injunction, declaring Amendment 2 in violation of the Equal Protection Clause of the Fourteenth Amendment. In 1996, the U.S. Supreme Court struck down Amendment 2 as unconstitutional in a 6-3 decision arguing that the law did not even meet the rational basis test (let alone the ‘strict Scrutiny’ that California and Colorado both afford to ‘sexual orientation’).

Thomas, Scalia and Rehnquist dissented, arguing that homosexuals can be denied ‘special’ protections due to their ‘self-avowed’ conduct. That is one amusing nut-job dissenting opinion for the ages.

This would be the easiest way out for the California Supreme Court — grant an injunction relief and let the federal courts decide the mess. It’s probably not what either side wants but it would also grant gay couples the right to marry and time to reverse the measure by 2010 before the U.S. Supreme Court would even hear it.

2. Invalidate Prop 8.

This is the amendment vs. revision debate and the argument that the ACLU, Lambda Legal and NCLR make in their brief. Volokh and Bainbridge do not think so.

Although the electorate may amend the Constitution by initiative (art. XVIII, § 3), a revision of the Constitution may be accomplished only by a constitutional convention and popular ratification (art. XVIII, § 2) or by legislative submission of the measure to the electorate (art. XVIII, § 1). The opponents of Prop. 8 plan to argue in Court that Prop. 8 would require a revision and not merely an amendment because it was in direct violation of equal protection and the spirit of the constitution, and thus a SUBSTANTIAL change.

Raven v. Deukmejian in 1990 was the first case where a proposition was thrown out on the basis that it would have required a revision and not an amendment. The California Supreme Court argued similarly for ‘gay marriage’ in re Marriage cases:

“We conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.

Is Prop. 8 a substantial change? Well, legal ‘experts’ think it is a stretch but lets agree that it does violate the EQUAL PROTECTION CLAUSE of the California Constitution decided by the Courts on May 15. If the California Supreme Court lets Prop. 8 stand, it sets a dangerous precedent that provides a gaping slippery slope, whereby equal protections for all groups in society could be put on the ballot and voted away by a minimum majority.

For example, in 2010, let’s ban the Republican party from California – it should pass by an easy majority, more than 52% for sure. Oh, not fair? Too bad.

On this basis, I truly believe that it has to either provide an injunction or invalidate.

3. With-hold marriage benefits from everyone

(I will throw a party for this one)

There may be no need to overturn Prop. 8.

Prop 8 put an asterisk or exception to the ‘equal protection clause’ of the California Constitution and the only way to settle the contradictions between the different clauses would be to strike marriage from the constitution—if gays cannot get married under civil law, neither can anyone else, period.

This is from re Marriage cases:

When a statute’s differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class. (119)


In the present case, it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation.(120)

The probable intent in this case is discriminatory and violates equal protection through the statutory initiative process.

Is the court courageous enough to invalidate Prop. 8 or will it go a step further and withhold civil marriage equally from all segments of society? The latter would certainly spark an outcry and be well-deserved. It would also create a mess in light of the ‘universalizing’ marriage laws of other states and might make California scramble and agree to marriages for all couples.

Not likely to be done anytime soon. But amusing nonetheless especially since this all started with the Christian conservatives wanting to ‘protect traditional marriage.’ They can still have their little traditional marriages (whatever that means), but that would have nothing to do with the state.

4. Do nothing. Let the will of ‘the people’ stand

Legal ‘experts’ say that the ruling will probably stand. It seems unlikely as the Court has reacted with an urgency to the lawsuits filed, declaring that a decision would be made by next week. Would the California Supreme Court let Prop. 8 stand and the culture war intensify further in California? Right now I think that would be great for the LGBT civil rights movement.

Anyway, that was my two Fijian cents. I am no legal scholar.

Feel free to list more ways that make legal sense.

P.S. Some segments of the ‘Yes on 8’ are already talking about recalling the four judges on the Supreme Court responsible for upholding minority rights. Go figure.

Related post: Law professors all over California debunk Prop. 8

Yes on 8 Endorsements Disappear – Can We Say B-O-Y-C-O-T-T?

prop h8 boycott

The ‘Yes on 8’ website that proudly hosted a list of endorsements prior to the elections has taken down the list and replaced it with some arbitrary numbers.

Can we say fear of boycott in exchange for their repulsive bigotry?

A partial list is still available here

A better list yet is for the big donors to the ‘Yes on 8’ campaign. See this Dishonor Roll (Courtesy:

If you go here and type in your ‘city’ (anywhere in the United States) — you can see the ‘Yes’ and ‘No’ donors or search via the entire list of contributions to the ‘ProtectMarriage’ Campaign.

The economic boycott has not even started on a full scale and people are already pleading for forgiveness or putting forth arguments as to why they should be spared:

Manager of Famed LA Restaurant Regrets Prop 8 Donation

Repercussions Hit Sacramento – California Musical Theater

Sundance reacts to calls for boycott

Marriott States that it Did not Contribute to Prop. 8

I suppose bigots change only when their pocketbooks or reputations are affected.

I do agree it is ridiculous to go after Sundance or boycott Utah only because it is the bastion of Mormon regression. We should not target members of a particular sect, faith or social group like we have been targeted. What is protesting outside a church going to achieve besides more divisions and hatred?

Forget attacking Sundance and vandalizing Mormon Churches. The best way yet to deal with the LDS Church comes from Equality Utah, asking the LDS church to support 5 ‘gay rights’ bills in Utah since the Church had officially stated it had no objections to civil unions or gay partner benefits. So far, the LDS Church has not responded to the request — Anyone surprised?

An economic boycott of the proponents of ‘Yes’ makes more sense as does withholding taxes from the state of California in the footsteps of Melissa Etheridge (no matter what the consequences), and a petition drive at the many rallies across the state to collect signatures for the 2010 elections to overturn this hideous ban.

In many ways, this feels like a witch-hunt and makes me uncomfortable. In other ways, since we are only doing an ‘economic boycott’ and not burning people on stake–and I have to remind myself that these are people who provided money and/or endorsed a Constitutional amendment that took away basic civil rights from a particular group of people–I am not about to advocate doing nothing. Bottomline – You can be homophobic, heterosexist, subscribe to the most extremist faith and intolerant of all LGBTQ people, but keep your beliefs and ideas away from our constitutional rights.

The ‘Yes on 8’ started this witch-hunt in October by threatening businesses with a letter that if they did not withdraw support from the ‘NO on 8’ campaign, they would be vilified as against ‘traditional marriages.’ Needless to say, most businesses were more than happy to be pro-civil rights-for-all. It makes me wonder now whether the anti-civil rights are scared and shame-faced given the intensity of backlash– they have effectively fueled the LGBTQ civil rights movement.

I am not ashamed of outing and boycotting businesses that give money to campaigns against civil rights. Are you?

I will forgive and forget once the abomination is repealed from our Constitution.