Ari Ezra Waldman | California | Federal Prop 8 Trial | Gay Marriage | News | Proposition 8

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Prop 8: Look How Far We've Come?

BY ARI EZRA WALDMAN

There are voices in the LGBT community that see "fear" and "defeatism" in not going back to the ballot in 2012 to overturn Prop 8. They laud Mainers who are gathering thousands of signatures for their own ballot initiative and seem to admire political activists who "have dusted themselves off after the last defeat and simply gotten back to work." It takes a special kind of out-of-touch leader to try something again and expect a different (or, at least, a permanent) result; it also takes a special kind of uninformed commentator to take a cursory look at all that Perry v. Brown has brought us and then think our preference for a legal strategy is defeatist.

Olson_boiesIn this second installment of a discussion on the benefits of focusing on the Perry litigation to end California's ban on same-sex marriage, I would like to touch on what Perry has already done for us. Many of us may be legitimately frustrated with the slow pace toward an ultimate conclusion, but in so doing, we miss the victories along the way. If we return to the ballot in 2012, we cut that process short, leaving anti-gay precedent untouched and on the books.

Here are just a few of the victories for which we can thank Perry:

1. Perry put anti-gay discrimination on trial, leading a federal district court to make a series of findings that had never before been stated explicitly. For example, Judge Walker found that no evidence was offered at trial that suggested that natural procreation was ever a purpose of marriage. He found that Prop 8 proponents could offer no rational reason for keeping gays and lesbians out of the institution of marriage. He said that Prop 8's marriage discrimination is an example of state action that classifies individuals on the basis on sexual orientation, which merits heightened scrutiny.

Some of these conclusions have been kicking around legal arguments for a while, but Prop 8's unique position as a federal constitutional challenge to a state ban on same-sex marriage elevates those arguments to another status. And, when those conclusions are ratified or upheld (as they are likely to be) when the Ninth Circuit addresses the merits of the Perry case, we will finally have a federal appellate court -- the arbiter of most major legal issues in this country -- on the side of marriage equality.

And, of course, we cannot forget that Perry brought us the first federal court to declare a same-sex marriage ban unconstitutional on its merits. That is no small feat.

CONTINUED, AFTER THE JUMP...

2. Perry has allowed us to address other incidents of anti-gay discrimination aside from same-sex marriage bans. Along the way, Perry has taken a few detours. The Prop 8 proponents have moved to vacate Judge Walker's decision declaring Prop 8 unconstitutional based on the fact that the judge was biased: in a committed, long term same-sex relationship, Judge Walker could have wanted to marry his partner at some point in the future. That is the argument, at least. The Perry litigation has, for the first time, resulted in a federal court declaring that gay judges are no different than any other judges. Just like African-Americans has adjudicate civil rights cases involving African-Americans, gay and lesbian judges can sit in judgment of issues directly related to the gay community.

This is more important than you might imagine. Gay people -- gay men, especially -- have long been victims of the insidious stereotypes that they are hedonistic, focused only on sex, and interested only in their personal and selfish benefit. That stereotype formed the basis of the offensive suggestion that someone who is gay and in a relationship could never separate his personal views from his legal conclusions. Perry has, therefore, taken one of the sharpest daggers in the backs of gay Americans and not just sewed up the wound, but made sure that the weapon cannot be used in a court of law again.

3. Perry may have national implications; a ballot initiative cannot. I do not believe that the Perry litigation will result directly in national same-sex marriage rights for all gay Americans. But that argument aside, Perry will provide future legal battles with necessary and helpful pro-gay precedent. A ballot initiative cannot do anything of the kind.

In fact, the only thing a ballot initiative will do is take us backward. It will allow anti-gay forces to marshall the misleading, hateful, and ridiculously fallacious arguments that they could not use at court. It could result in a situation where we keep debating the same question every two years, at a multi-million dollar price tag of money that could better be used elsewhere. But, that is a discussion for a future post.

Previously...
Prop 8 and DOMA: The Amicus Brief and the Primacy of Law [tr]

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. I agree with Ari but as a Californian who simply lucked out and legally married when the opportunity presented itself, there remains the fear that some CA court or judge will throw same-sex marriage out leaving my family in tatters. OTOH, if/when same-sex marriage is a Federally protected right, and I hope some day it will be, those fears will cease. Thanks for the updates. They are always welcome.

    Posted by: OS2Guy | Nov 16, 2011 2:14:55 PM


  2. I, too, like these posts. But the truth is that the final ruling by the Ninth Circuit will likely be based only on the lack of standing by the proponents of Prop 8. If so, Perry will be of very limited precedential value, and we will, at the very least, be required to file a new lawsuit somewhere else to get the national ruling we need. We sure could use someone bringing THAT suit NOW.

    Posted by: GayDad | Nov 16, 2011 2:20:41 PM


  3. My condemnation of EQCA is not so much over their decision not to try to reverse Prop 8 at the ballot box in 2012. It is the fact that they have been raising money for the last 3 years on the false premise that they needed the cash to fight Prop 8 at the ballot box in 2012. I had a discussion with one of their volunteers who was collecting money outside of the Pavillions Supermarket in West Hollywood. I pointed out to him that that we were going to win the the Marriage Equality battle in the courts. But he insisted that I needed to give him money to get a repeal of Prop 8 on the ballot in 2012. When is EQCA going to give everyone their money back and issue an apology??

    Posted by: StillmarriedinCA | Nov 16, 2011 2:25:45 PM


  4. Damn, Ari, you've really decided to become a raving a-hole about this issue haven't you? You obviously can't just say, hey, we've got a good-faith difference of opinion on strategy. You can't even acknowledge the possibility that this winds up as a disaster at the Supreme Court, which is one reason why people -- knowledgeable legal folks, mind you, not "uninformed commentators" -- have been afraid of this. They might be wrong, but hey, news flash, Professor, so might you.

    Your posts on this have just gotten more and more smug and self-righteous. I frankly can't stand to read them anymore. A little humility on your part would go a long way.

    Posted by: Glenn | Nov 16, 2011 2:31:41 PM


  5. This post is absurd. #2 is meaningless. As for #1 and #3, it could be a great victory if the Supreme Court ratifies gay marriage. It could be a great disaster if the Supreme Court renders a Plessy-like decision that freezes all progress in the judicial front for 50 years. The 9th circuit has been overruled many times by the Supreme Court - and this Supreme Court is the most conservative we've seen in 80 years. An appellate judgement might be nice for law professors, but if it's overruled, it doesn't mean much ultimately.

    Meanwhile I think there is a strong argument that legitimacy for gay marriage will only really arrive when there are states that support it through vote or legislation (like NY): California being the most powerful and likely one. Perhaps this vote can take place at a later date in 2016 when passage is more assured.

    Posted by: george | Nov 16, 2011 2:44:33 PM


  6. "In fact, the only thing a ballot initiative will do is take us backward. "

    Really? The ONLY thing it could do is take us backward? You've gone off the rails on that one.
    If we won, and added the millions of citizens of California to the growing list of Americans who are eligible for same-sex marriage, how on earth could that take us backward? The more states that have marriage equality, the closer we are to federal marriage rights.

    Posted by: StillmarriedinCA | Nov 16, 2011 2:45:46 PM


  7. I dislike Ari's analyses so much I'm not even going to post this comment.

    Posted by: Will | Nov 16, 2011 2:51:38 PM


  8. The Perry lawsuit is indeed groundbreaking. But the fact remains that it has been more than three years since the enactment of Prop. 8 – and almost two-and-a-half years since the filing of the Perry lawsuit – and Perry & Stier and Katami & Zarillo still can’t get married.

    This lawsuit is not going to be resolved any earlier than June 2013. The Ninth Circuit can take as much time as it wants to issue an opinion (even though the California Supreme Court must issue its opinion by early December), and there’s a good possibility that the three-judge panel’s opinion will be subject to further appeals within the Ninth Circuit through the en banc review process. It may be at least another year before the Prop. 8 proponents file their petition for certiorari with the U.S. Supreme Court.

    And if this case ever gets to the U.S. Supreme Court, the chances are next-to-zero that we will get a broad, nationwide holding that no state can deny same-sex couples a marriage license. While I do think the votes are there to overturn Prop. 8 (assuming Justice Ginsburg’s health remains stable), I expect it to be the most narrow ruling possible. For example, the Supreme Court could rule that there is no standing to appeal (even if the Ninth Circuit says there is), or the Supreme Court could issue a very narrow ruling on the merits due to the unique circumstances in California preceding the enactment of Prop. 8 (e.g., how is there a rational basis for giving gays & lesbians everything but the name of marriage; or there’s a unique constitutional violation in taking away the right to marry after it’s already been granted).

    Ari: what puzzle’s me most is your conclusion that we’re doing the right thing by abandoning efforts to repeal Prop. 8 at the ballot in the November 2012 election.

    Fighting Prop. 8 in the courts and fighting Prop. 8 at the ballot are not mutually exclusive. Yes, a ballot repeal in November 2012 would moot the Perry case, but that would likely occur after the Ninth Circuit issues its opinion, which will be another legal victory and important precedent in its own right.

    And the Perry case is helping to change public opinion. Those video tapes of the trial very likely will be released soon (unlike the merits appeal, that issue has been subject to an expedited appeal), and the California voting public is going to see that Prop. 8's proponents will say one thing in a TV ad, and a completely different thing when forced to testify under oath and subjected to cross-examination.

    We should be fighting Prop. 8 on all fronts. We need organizations like AFER to fight Prop. 8 in the courts, and – despite how maddeningly frustrating they can be – we need organizations like Equality California to fight for us in the legislature. But we cannot allow our fear and pessimism to cause us to give up on trying to change hearts and minds.

    Prop. 8 passed by the narrowest of margins. It passed not just because our “leaders” were asleep at the wheel, but because our rank-and-file were asleep at the will, too, and willing to go along with whatever the “leaders” were doing. The massive outpouring of opposition to Prop. 8 after the election was incredible, and I cannot believe that all of that momentum isn’t enough to move us up in the polls by five percentage points.

    Posted by: John M. | Nov 16, 2011 2:59:29 PM


  9. Wow, I couldn't agree more with the post by Glenn | Nov 16, 2011 2:31:41 PM.

    It's one thing to have a learned opinion, it's totally another to insult the people who disagree with it. I am SO tired of one side saying thier way is the only way to get it done and everything else is counter-productive.


    Posted by: Wayne B | Nov 16, 2011 3:13:52 PM


  10. "It takes a special kind of out-of-touch leader to try something again and expect a different (or, at least, a permanent) result; it also takes a special kind of uninformed commentator to take a cursory look at all that Perry v. Brown has brought us and then think our preference for a legal strategy is defeatist.

    Way to try to preemptively head off dissent from your legal opinions, Ari Ezra, by characterizing it as ill-informed. But you know what the readers of Towleroad could really use? A BRIEF update on the status of Prop 8, after weeks of little or no news. Instead, we get another of your bloated diatribes. Christ, you're insufferable.

    Posted by: Christopher | Nov 16, 2011 3:16:28 PM


  11. Apparently, the California Supremes will issue their opinion on the standing issue tomorrow morning!

    Posted by: Zlick | Nov 16, 2011 3:22:01 PM


  12. @John M and Ari, wouldn't repeal of Prop. 8 result in a higher court vacating Walker's decision? Isn't that what happened in the Log Cabin Republican's DADT case? Am I mistaken, but didn't the legislative repeal result in 9th Circuit completely vacating from the record the findings and the decision of the District Court.

    Posted by: searunner | Nov 16, 2011 3:22:32 PM


  13. I see a more cynical linkage between the Perry saga and another ballot initiative. I don't believe the verve is there to so much as get the signatures needed to qualify a repeal for the ballot while the Perry case proceeds, much less wage the all-out-war that a successful initiative campaign requires.

    Conversely, I don't see the public-at-large getting to view segments of the game-changing trial video (assuming it's released) unless those images become fodder for television ads in conjunction with a ballot initiative.


    Endless Circle of Inaction.

    Posted by: Zlick | Nov 16, 2011 3:29:24 PM


  14. @Searunner: Mootness and vacatur are two separate things. Yes, a ballot repeal of Prop. 8 would render the case moot. But vacatur is an extraordinary remedy, and it happened in the LCR DADT case only because the three-judge panel exercised its discretion to vacate the lower court opinion. It did so principally because the appealing party -- the Government -- continuously requested that the lower court opinion be vacated.

    It's not entirely clear how that would play out in Perry, seeing as the government authorities bound by the judgment did *not* appeal! And there's also the other wrinkle of the ballot repeal occurring *after* the Ninth Circuit issues an opinion but before the Supreme Court decides on whether to take the case. I can at least say that we'd have a better argument for not vacating the district court or Ninth Circuit opinions in the event of a ballot repeal than there was in the LCR DADT case.

    Posted by: John M. | Nov 16, 2011 3:52:55 PM


  15. @John M. Thank you for the clarification.

    Posted by: searunner | Nov 16, 2011 3:59:53 PM


  16. can somebody—ANYBODY—else be towleroad's legal commentator please? look at all these great, insightful comments from readers. pick one of them.

    Posted by: AB | Nov 16, 2011 4:16:53 PM


  17. Would a ballot initiative set us back anymore than the US Supreme Court simply heading off the issue by denying standing? The implicit assumption in this piece, and the ones that came before it, is that the result in federal court is going to result in a holding that can be of use for other states in their fights for equality. Given the current breakdown of the Supreme Court, I'd say its more likely than not the liberal wing can convince a 5th justice to join a decision denying standing as opposed to convincing a 5th justice to agree with them on the merits.

    Posted by: Kevin H. | Nov 16, 2011 4:22:28 PM


  18. John M, I agree iwth your analysis, except for the part about EQCA being asleep at the wheel. They weren't asleep so much as locked in a closet, eep in the political culture that these people swim in.

    We did as well as we did not becuase of EQCA, buit DESPITE them.

    I have written a great deal about how much I continually tried to wake them up, as I tried with Mark Leno, as I tried with Alex Tourek (?) as I tried in every way that one person not connected could.

    I finally gave up and wrote a column that I sent to every newspaper in the state-- some EQCA didn't even think of doing. It was publioshed in 3 papers.

    Posted by: Ben in Oakland | Nov 16, 2011 4:23:03 PM


  19. John M, this is what I wrote the day fater the election. The BAR was all set to publish it, but then went with an article on race instead. Oh, well.

    Time. Energy. Money.

    As a recently married gay man, I contributed a lot of each against Prop. 8. I’m sad that we failed to defeat it. But I'm also very angry-- and not just about political campaigns fueled by bigotry, conservative religion, and way too much tax-free money--because I could see it coming like a train wreck.

    At the campaign kickoff, I asked Mark Leno personally if they were going to do the liberal-tolerance-equality strategy again, pointing out that it has failed repeatedly. Or, were they going to show actual gay people, actual families, and actual lives. You know: reality. He said that focus groups indicated that everybody-make-nice and civil liberties were the way to go. This would affect the undecided voters who were so crucial. I made the same point to HRC’s Marty Rouse and several campaign people, and got the same response. The approach would be political rather than human, in every sense of both words.

    Politics may move undecided voters, but it is only as valuable as the last person they talked to. Human connection move hearts and minds, even people whose minds are made up. People who know gay people don't usually vote against them. But it's easy to vote against someone who is invisible, faceless, a menacing other, instead of friend or family, or even someone you just met on the street. And we were quite invisible. We saw the supportive, loving parents, but no gay daughter, no grandchildren. No on 8 seemed totally uninterested in a speakers’ bureau to reach out to community groups and churches; I gave up asking. They wanted volunteers for phone banking and sign waving in the Castro, not personal contact with real voters. At a training we were told NOT to use words like children, because Pro-8 people had appropriated the issue. We refused to claim it, and thus it was used against us. Likewise, don't talk about this ancient and deeply rooted anti-gay prejudice, either, because by calling attention to a reality in our lives, we might offend people who call us a threat to family, faith, and country.

    This all may make sense to professional political people in their world and culture, but not in mine. It fails as a strategy because it embraces THE CLOSET, which is our real enemy, not the Radical Right. The closet is us, making ourselves invisible and unknown, rather than showing the simple fact and humanity of our lives. It is our consent to the lies, our silence in the face of naked prejudice. It is us not standing up for ourselves, and when we don't, who else will stand with us? I absolutely praise and thank our leaders for their efforts and sacrifices and dedication. But frankly, if our leaders don't know this, or if perhaps have their own issues of internalized homophobia, they shouldn't be our leaders. Because here's the result: we were barely visible, and more people thought that the standard of living of California chickens was more important than the families of their fellow Americans.

    Thirty years ago, I worked against the Briggs Initiative. A much smaller group of people, with far fewer resources, in a far less accepting time, succeeded against great odds. Maybe I'm romanticizing, but I seem to remember it was because all we really had to show were ourselves and our lives. We said NO to the closet.

    I know this is far from over. We will be back. However, if the future campaign is going to be focus groups, phone banking, invisibility, and cute but irrelevant ads that look good on political resumes but change nothing– don’t expect one minute of my time, one iota of my energy, or one dime of my money.

    Posted by: Ben in Oakland | Nov 16, 2011 4:29:26 PM


  20. I would like to know when in hell is NOM going to be made to release the donor names or have serious legal action taken against them?

    Posted by: mark | Nov 16, 2011 4:29:55 PM


  21. Pursuing Perry and taking to the ballot to repeal Prop 8 are not mutually exclusive. This post places an unwarranted amount of faith in the ultimate success of Perry. It has been three years since the passage of Prop 8, and it may be another two years before we get some kind of final decision. And that decision may well go against us. Our hope for a favorable decision from the Supreme Court of the United States really depends on the good health of Justice Ginsberg and the reelection of President Obama. Neither is certain.

    Posted by: Jay | Nov 16, 2011 4:39:06 PM


  22. The real heroes in this case are the plaintiffs, who continue (apparently, I don't know them personally) to be willing to put off marrying while the case is pending, even though thousands of their neighbors in California have already passed their third anniversaries, and even though they could catch a plane to tomorrow and get married in NY, DC, etc. I salute them every bit as much as AFER's legal team. They are real people with real lives, however, and none of us can presume that they will wait forever.

    The ramped-up criticism of those who would entertain a ballot strategy seems really out of place, particularly since the decision (deliberate or de facto) of skipping 2012 was pretty much made long before now. Is there some organization with a boatload of signatures out there that Ari (and none of the rest of us) knows about? I doubt it.

    The importance of the Perry case and Judge Walker's decision is, indeed, enormous, and for now waiting still seems like a good to me, but if this thing is still kicking around unresolved in 2014, I think my fellow Californians and I will be hard pressed not to try to work for a direct solution.

    Posted by: Gianpiero | Nov 16, 2011 5:59:48 PM


  23. I can hardly add to the eloquent comments of so many of your readers. While we wait for the Perry case to snake its way through our Byzantine legal system, gay and lesbian couples continue to be denied their fundamental rights and our youth will continue to receive the message that, even in California, their lives are not valued the same. And, of course, a successful outcome at the United States Supreme Court is not at all guaranteed. In fact, must legal experts privately concede that there is little chance of a good outcome in the Roberts Court. When the case does go south, what is our alternative plan? For a proposition to qualify for the November 2012 ballot we need to be collecting signatures next month. Otherwise, we will be having this same argument 4 years from now.

    Posted by: Lester | Nov 17, 2011 11:12:23 AM


  24. This is NOT the first federal court to declare an anti-gay marriage amendment unconstitutional. Citizens for Equal Protection v. Bruning found Nebraska's marriage amendment unconstitutional on Equal Protection grounds and also Bill of Attainder grounds (which I find absurd), but this was overturned on appeal.

    Posted by: Bill S. | Nov 17, 2011 11:23:10 AM


  25. Perry v Schwartzenneger has "put on trial" bigotry. It has allowed us to "address" things. In other words, it has brought us victories of pure framing and messaging and media PR, with no benefits of substance. Oh, so Perry means it is now on the books that a court ruling stands even if the judge is gay? Was that ever in doubt?

    These are the kinds of victories the blogs like: it makes us feel good, and it allows us to win PR victories in our fights against NOM's rival blogs, and has ZERO REAL WORLD IMPACT. We don't like fighting for things, we just like sitting on our blogs and basking in how lovely and progressive we are. PvS is the epitome of that ideal: no sacrifice or effort, all PR backrubs.

    The bloggy netroots like this site started out as an active alternative to the calcified, cowardly Democrats. While the mainstream liberals sat still and settled we were going to go out and fight for things. Somehow that didn't work out. Now we spend our days writing long treatises explaining how it is very right and good and courageous that we are surrendering on prop. 8, meanwhile we still can't get married and there's nothing I'm being allowed to do to try to fix that except wait five or ten years for your lawsuit to hit the supreme court.

    Posted by: mcc | Nov 17, 2011 9:39:41 PM


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