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Back to the Ballot - Queer Activists Debate Whether to Seek Repeal of Prop. 8

by Mark Gabrish Conlan/Zenger's Newsmagazine Tuesday, Jun. 21, 2011 at 4:20 PM (619) 688-1886 P. O. Box 50134, San Diego, CA 92165

With the court challenge to Proposition 8, California?s voter-approved ban on legal recognition of same-sex marriages, mired in potential legal wrangling that could take years to resolve, Equality California (EQCA) revived their plans to take the issue back to voters and seek an initiative to repeal Prop. 8. But the 70 or so activists at the EQCA town-hall meeting in San Diego June 3 split over whether that?s a good strategy ? or whether EQCA, primarily a lobbying organization, is the right group to run such a campaign.

Back to the Ballot -...
shorter___molnar.a.jpg, image/jpeg, 600x400

EQCA Hosts “Back to the Ballot?” Town-Hall June 3

Attendees Split on Whether to Seek Prop. 8 Repeal at Polls in 2012


Copyright © 2011 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

PHOTO: Andrea Shorter and Jason Molnar

As part of a series of meetings across the state, Equality California (EQCA) convened a town-hall at the Lesbian, Gay, Bisexual, Transgender Community Center June 3 called “Back to the Ballot?” The intention was to provide EQCA with community input about whether they should seek to put an initiative on the ballot in November 2012 and give voters a chance to repeal Proposition 8, which amended the California Constitution to define marriage as the union of one man and one woman. But the range of opinions in the room was far from the enthusiastic support such a measure would need to succeed. In a straw poll taken at the start of the program, 16 people voted in favor of going back to the ballot in 2012, six were against and 25 were undecided. When the poll was repeated at the end, only 13 were for the ballot measure, 13 were against and 11 were still undecided.

The meeting was led by Andrea Shorter, EQCA’s director of marriage and coalitions, and Los Angeles-based attorney Jason Molnar. Shorter presented a series of numbers from polls EQCA commissioned about the opinions likely voters in California currently have about same-sex marriage. Based on a sample of 900, including 150 African-Americans and 50 Asian-Pacific Islander-Americans, and with a margin of error of 3.3 percent, the poll was taken May 10-14 and showed a statistical tie: 45 percent in favor of marriage equality, 45 percent opposed and 10 percent undecided. What’s remarkable about this result is that, by comparison with a similar poll taken in 2009, more people seemed unsure about the issue: the 2009 results were 47 percent in favor, 48 percent opposed and only 5 percent undecided.

Shorter also presented results from subgroups within the original sample (though she did not explain that this increases the margin of error). She said that 59 percent of Democrats support marriage equality, along with 53 percent of nonpartisan voters and 23 percent of Republicans. “Over 30 percent of Democrats are still opposed,” she conceded, showing the “against” numbers as 32 percent of Democrats, 37 percent of nonpartisans and 69 percent of Republicans (down from 77 percent in 2009).

The poll numbers also confirmed the belief that the younger you are, the more likely you are to support marriage equality. Of voters under 30, 71 percent favored marriage equality and 24 percent opposed. In the 30-44 age range, 50 percent were in favor and 43 percent against. Among voters 45 to 64, 43 percent supported equality and 48 percent opposed. In the oldest group, aged 65 and up, 34 percent were in favor and 53 percent against. Interestingly, the numbers of undecideds also went up with age: 5 percent among voters under 30, 7 percent in the 30-44 group, 9 percent in the 45 to 64 group and 13 percent among voters 65 and older.

According to Shorter, the current poll supported the conclusion from previous polls and the Proposition 8 vote itself that religion was a stronger predictor of how people feel about marriage equality than race. Among people who attend church once a week or more, only 29 percent favor marriage equality, to 68 percent opposed and 9 percent undecided. People who attend church “a few times a month” break 42 percent in favor, 47 percent opposed and 11 percent undecided. Of people who go once a month or less, 53 percent favor marriage equality to 41 percent opposed and 6 percent undecided. People who attend church “hardly ever or never” break 65 percent for marriage equality, 25 percent opposed and 13 percent undecided.

The racial breakdowns revealed whites breaking in favor of marriage equality, 48 percent to 44 percent opposed and 8 percent undecided. Asian-Pacific Islanders are the other racial group in which supporters outnumber opponents, 51 to 41 percent, with 8 percent undecided. African-Americans break against marriage equality 53 percent to 33 percent, with 14 percent undecided, while Latinos are more closely divided, 47 percent against to 43 percent in favor and 10 percent undecided. “Frequency of worship is a stronger factor than ethnicity,” Shorter stressed, anxious to avoid some of the racist rhetoric from the Queer community after Proposition 8 exit polls revealed that it had passed by more among African-Americans and Latinos than among whites.

She also cited other poll results that gave hope for bridging the gap between marriage equality activists and religious people, especially people of color. “Latino Catholics’ support for marriage equality has increased to greater significance over the last two years,” she said. While support among all Catholics increased from 45 percent in 2009 to 46 percent in 2011 — a statistical tie — support among Latino Catholics jumped from 45 to 51 percent, Shorter explained. She also cited a nationwide poll by Catholics for Equality that found that 63 percent of Catholics support marriage equality. “That’s somewhat encouraging, if those numbers stand,” she said.

The Religious Exemption

Assuming, on the basis of poll results like these, that the biggest stumbling block to voters supporting marriage equality is their religious convictions — particularly the fear that their churches will be forced to marry same-sex couples whether they want to or not — EQCA put a strong religious exemption in the poll language that asked whether respondents would actually vote for an initiative to repeal Proposition 8. The question read, “Would you vote yes or no on a ballot initiative that would legalize civil marriage for same-sex couples, on the condition that clergy or religious institutions are never required to perform a marriage that goes against their religious beliefs?”

Actually, nothing in current law requires any church or minister to conduct a marriage ceremony that goes against their religious beliefs. “Many people are very confused and don’t understand the constitutional separation of church and state,” Shorter explained. As two members of the audience pointed out, the Roman Catholic Church can and does refuse to perform marriages for divorced persons, even though divorced persons may marry under civil law. But because one of the most effective tactics of the Proposition 8 campaign was to exploit that confusion and suggest that churches that don’t believe in equal rights for Queers would nonetheless be forced to marry them, EQCA put that language in their initiative proposal — and the poll favored such an initiative by 47 percent to 43 percent, with 10 percent undecided, “2 percent more support than marriage equality overall.”

However, there’s a down side to using that language. “The religious exemption causes some members of our base to oppose the initiative,” Shorter conceded. “It could be that there are folks who would prefer that churches be compliant with state law.” Indeed, some of those people were in her audience; one man responded by saying EQCA should seek a flat-out repeal of Proposition 8 with no religious exemption, and another said the only way he could support a religious exemption is if the initiative stated that that was already required by the federal Constitution.

“It’s not something that many thinking people are happy about,” Shorter conceded. “To some extent, the question was forced on us. All voting adults in the U.S. should have some conception of the separation of church and state, and in a perfect world they would. But they don’t.” She said that if the 11 percent of people who support marriage equality but oppose the religious exemption can be brought back on board, they would add to the 34 percent willing to support marriage equality with or without the exemption, and the 13 percent who would vote for it with the exemption even though they otherwise remain opposed. Then, Shorter said, the total support would be 58 percent and the initiative would have a good chance of passing.

Shorter also admitted that one of the big so-called “boogeyman issues” used to defeat marriage equality and other Queer-rights issues at the polls “is the ‘harm to children’ deal. What we are learning — not only on the campaign trail — is that we have to inoculate against that. It’s effective because it does trigger certain fears. But we also know it’s not true.”

Lack of Confidence

Judging from the audience comments during the meeting, though, EQCA is going to have a lot of trouble persuading Queer community activists that a ballot victory in 2012 is possible; or that EQCA, an organization originally formed to lobby a relatively liberal state legislature to pass Queer-friendly bills, can adjust to the very different demands of an electoral campaign. Many people in the audience talked about the money and volunteer time they spent on the No on 8 campaign, and how they felt betrayed by the strategies used by EQCA and the Human Rights Campaign (HRC), which led to the passage of Proposition 8 even though both sides were equally well funded.

“We made more political contributions to No on 8 than any other campaigns,” said an audience member who, like attorney Molnar, had married his partner during the 4 ½-month “window” between June 2008, when the California Supreme Court’s decision that a ban on same-sex marriage violated the state constitution, and November 2008, when Proposition 8 reversed that decision. “We had heard that the forces against 8 had hired the best ad campaigners. It was not until the very end of the campaign that we [Queer individuals and couples] were let out of the closet. People were allowed to stay in their prejudices.”

In particular, this man argued, the Yes on 8 forces were allowed to tie homosexuality to child abuse even though “95 percent of all abused children are abused by heterosexuals.” He said he and his husband were “very much undecided about whether we’d support a ballot initiative in 2012. We’re not willing to sit through another campaign unless the leadership of EQCA and HRC really takes the reins” and is willing to correct the mistakes they made in 2008.

“I worked in a megachurch ministry for eight years,” said a man originally from Dallas, Texas who pleaded with the 11 percent in Shorter’s poll to be realistic and accept the religious compromise. “’Don’t ask, don’t tell’ repeal would not have passed without amendments,” he said. “A lot of Americans don’t understand that there is a separation of church and state; 70 percent of Americans supported the repeal of ‘don’t ask, don’t tell’ and we still needed an amendment. … Our fear is we don’t want people to get in our faces. Their fear is they don’t want Gay people in their faces.”

Sean Bohac of the San Diego Alliance for Marriage Equality (S.A.M.E.) said that the last time EQCA approached the community on this issue, it was to ask whether to go back on the ballot in 2010 or 2012 — and many people donated thinking there was going to be a ballot effort in 2010 and were bitterly disappointed when there wasn’t. “We did an assessment and found it would not be feasible to run in 2010,” Shorter replied. “Our position was 2012 would be more feasible. We made a commitment to ask the community, and that’s what we’re doing now in 12 different cities in California. We’re not fundraising [now] because we’re still talking to the community.”

One audience member asked indignantly why, just six months earlier, EQCA had canceled its entire door-to-door field outreach program. He argued that this had been “one of the only statewide efforts” to reach people outside of the heat of a political campaign and educate them about Queer rights in general and marriage equality in particular. This person said that not sending volunteers door-to-door had been the biggest mistakes of the No on 8 campaign and that “we lost [control of] the message” as a result.

“It was a cost factor, budget and economics,” Shorter replied. “We still have a couple of field programs in Los Angeles and the Inland Empire. The funding [for a statewide operation] was just not there. You have to make choices, and that was a hard choice to make.” Asked a follow-up question on what EQCA was doing in preference to a field operation, Shorter said the group was using its limited resources to focus on its “core function” of lobbying — only fueling the doubts among many in attendance as to whether a lobbying group like EQCA is the right one to run a ballot campaign.

Even the structure of the meeting put some attendees off. Audience members were allowed one minute each to say their piece, and the people running the meeting tried to limit any one person from speaking more than once. At least two people suggested EQCA could have got more and better feedback by breaking the meeting into small discussion groups, where people would have had the chance to dialogue and exchange ideas, and having each group report to the whole body at the end.

The Legal Case(s)

Attorney Molnar reviewed the convoluted history of litigation surrounding the issue. It began in 2004, when Gavin Newsom — then mayor of San Francisco and now lieutenant governor of California — unilaterally ordered his county clerk (San Francisco, unlike any other local government in California, is both a city and a county) to start issuing marriage licenses to same-sex couples in violation of a previously approved voter initiative from March 2002 which banned them.

Though the California Supreme Court ultimately found these marriages legally invalid, Newsom’s challenge sparked the so-called Marriage Cases, which led to the state high court’s May 2008 decision not only that the ban on same-sex marriages was unconstitutional but that Queers were a “suspect class” under civil rights law. “So the anti-marriage forces amended the state constitution to define marriage as the union of one man and one woman,” Molnar explained — and they got 52.5 percent of California voters to pass that in November 2008.

“It didn’t take long for some bold attorneys to challenge that proposition in federal court,” Molnar explained. The bold attorneys were Republican Ted Olson and Democrat David Boies, who had opposed each other in the 2000 Bush v. Gore case over the outcome of that year’s Presidential election, but now came together to ask the federal courts to declare Proposition 8 in violation of the U.S. Constitution. Ten months later, after an extensive trial, federal judge Vaughn Walker ruled that Proposition 8 did violate the equal protection and due process clauses of the federal Constitution, but his decision was “stayed” — legal-speak for put on hold — while the Ninth Circuit Court of Appeals heard an appeal from the organization that put the initiative on the ballot and campaigned for it, “The stay is the only thing preventing same-sex marriages in California,” Molnar said.

At the time, most marriage equality activists thought the case would be resolved relatively quickly. But the case hit a snag at the appeals court called “standing.” As Molnar explained, courts will only hear a case if the people bringing it actually have a personal stake in the outcome. Ordinarily, when there’s a constitutional challenge to an existing law, the state officials responsible for enforcing the law — the governor and attorney general — will appear in court to defend it. But then-governor Arnold Schwarzenegger refused to do that, as did then-attorney general and current governor Jerry Brown. asked Judge Walker to let them defend Proposition 8 in the trial court, which he did, but he questioned whether they would have standing to do so at the appeals level.

So when the Court of Appeals took the case, they asked both the Olson/Boies team and the attorneys for to address the standing issue as well as the merits of the case — and rather than rule on either point, they decided to return the case to the California Supreme Court for a ruling on whether state law gives the proponents of a ballot measure standing to defend it in court if the government officials won’t. “If they rule they don’t have standing, the case would probably end because that would be almost impossible to appeal,” Molnar explained. “If the California Supreme Court rules that [] does have standing, it’s my opinion that Walker’s strict handling of the case would make it difficult to overrule him on the merits.”

If there’s an appeals court decision on the merits of the case, Molnar said, whichever side loses will undoubtedly appeal it to the U.S. Supreme Court — which means the case will still be alive during the 2012 election cycle. “There’s no way this gets before the Supreme Court” before November 2012, Molnar said. There’s another complication: has asked the appeals court to throw out Walker’s decision invalidating Proposition 8 on the ground that Walker is a Gay man in a long-term relationship, and therefore he was biased because he might choose to marry his partner if Proposition 8 is invalidated. Asked if the case could take eight years, Molnar said, “I don’t think it would take that long. Five years is the outer limit.”

But it’s the end of the hope for a quick fix in the courts that led EQCA and other marriage equality groups to consider whether to go back to the strategy question they debated through much of 2009: whether to sponsor a ballot measure of their own and ask California voters to reinstate legal recognition of same-sex marriages. “There are couples like us who are married because we got married in that window, and other couples who want to get married and can’t,” Molnar said — a discrepancy which bothered the Court of Appeals judges in their hearing on the case.

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