AG Brown's Surprising Friday Evening Announcement on Prop 8

In my new job, I get a lot of press releases from statewide officials. On a Friday evening I was not really expecting big news, although it has been an unusual week in the Capital with the budget battle waging. Still you have to believe that if the Attorney General is sending out a Friday at 5 pm press release, he's hoping to bury the news.

In General the Attorney General defends statewide propositions that get challenged in the legal system, regardless of his personal beliefs. And there might be some wiggle room here since you have two conflicting aspects of the California constitution.

Still one probably has to think that the decision by Brown is more political than legal. I say that as someone who supports Gay Marriage and pleased the AG has stepped into the fray on my side.

The first part of what happened yesterday was that opponents of same-sex marriage changed their mind or went back on their word, and sought in court to have 18,000 gay marriages annulled. A few hours later, Jerry Brown, the state's Attorney General comes into the fray. Coincidence? I think not.

According to the press release from the Attorney General's office:

"Attorney General Brown believes that same-sex marriages entered into between June 16 and November 4, 2008 are valid and recognized in California regardless of whether Proposition 8 is upheld."

In general, he makes a similar argument as the one that has come forth elsewhere.

The Attorney General called upon the California Supreme Court to invalidate Proposition 8 because it deprives people of the right to marry—an aspect of liberty that the Supreme Court has concluded is guaranteed by the California Constitution.

“Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.”

In this case, Attorney General Brown concludes that existing case-law precedents of the Court do not invalidate Proposition 8 either as a revision or as a violation of the separation-of-powers doctrine. But this does not resolve the matter.

"In the In re Marriages Cases, the Court held that article I, section 1 of the California Constitution provides a right to marry that cannot be denied to same-sex couples. Attorney General Brown argues that in order invalidate such a fundamental right; the Court must determine that there is a compelling justification to do so. But in the In re Marriage Cases, the court found that no such compelling justification exists. Accordingly, Proposition 8 must be stricken."

In his legal brief, he writes:

"The writ petitions present an issue of critical significance: whether the voters may, by initiative, amend the California Constitution when doing so takes away a fundamental right from a class of people who are members of a group defined by a suspect classification."

The Attorney General Continues:"Petitioners allege that Proposition 8, which declares that "only marriage between a man and a woman is valid or recognized in California," constitutes an illegal revision of the Constitution rather than an amendment. The Constitution provides two alternative processes for proposing an amendment: either proposal by petition through the initiative process or proposal by the Legislature."

On the other hand, a revision of the Constitution may not be proposed through the initiative process and instead must be proposed either by the Legislature or by a constitutional convention.

As I have suggested previously, the AG is on solid legal ground with the argument. The real question is whether he is the one who should make it. To flip the issue the other way, let us suppose the left side of the spectrum had passed an initiative and a Republican Attorney General not only refused to defend it but joined the side of opposition, I know I would be outraged.

Given the court move by the pro-prop 8 side, I can imagine why the AG decided to strike on a Friday afternoon, but you have to wonder if he wasn't trying to bury the news a little as well.

---David M. Greenwald reporting

City of Davis to Vote To Join Amicus Brief To Petition Court to Invalidate Proposition 8

As a consent agenda item for Tuesday's Davis City Council meeting, the Davis City Council will likely unanimously support a resolution to join an amicus brief petition to the Supreme Court to invalidate Proposition 8. Davis will join a growing list of cities that lack the resources to directly sue to challenge the adoption of Proposition as as the City and County of San Francisco, Santa Clara County and the City of Los Angeles did the day after the election.

On November 5, 2008 San Francisco City Attorney Dennis Herrera joined Los Angeles City Attorney Rocky Delgadillo and Santa Clara County Council Anne Ravel in filing a petition for a writ of mandate with the California Supreme Court to invalidate Proposition 8, an initiative constitutional amendment that intends to strip gay and lesbian citizens of their fundamental right to marry in California.

According to Davis' City Staff Report:

The petition argues that since Proposition 8 emanates from an initiative petition it is invalid because it effects a revision rather than an amendment to the constitution. The initiative process may propose only amendments not revisions. For this reason the petition asks the Supreme Court to invalidate Proposition 8.

Numerous other cities and counties have since joined this action.

This is not the first time the city of Davis has gotten involved in this issue. According to the City Staff report, in October of 2007,

"the city of Davis joined in an amicus curiae brief written by Stephen Lewis of the West Hollywood City Attorney's Office, that cities and counties filed in support of San Francisco in the Marriage cases in which the California Supreme Court struck down the ban against same sex marriages relying on due process, equal protection and privacy grounds. In re Marriage Cases 43 Cal. 4th 757 (2008). Mr. Lewis will again be authoring an amicus curiae brief in support of Petitioners position in this case. The amicus curiae brief will be due on January 15, 2008. The Council also passed a resolution against Proposition 8 in September of this year."

San Francisco City Attorney Dennis Herra wrote the following upon the filing of the suit on November 5:

"The issue before the court today is of far greater consequence than marriage equality alone. Equal protection of the laws is not merely the cornerstone of the California Constitution, it is what separates constitutional democracy from mob rule tyranny. If allowed to stand, Prop 8 so devastates the principle of equal protection that it endangers the fundamental rights of any potential electoral minority -- even for protected classes based on race, religion, national origin and gender. The proponents of Prop 8 waged a ruthless campaign of falsehood and fear, funded by millions of dollars from out-of-state interest groups. Make no mistake that their success in California has dramatically raised the stakes. What began as a struggle for marriage equality is today a fight for equality itself. I am confident that our high court will again demonstrate its principled independence in recognizing this danger, and in reasserting our constitution's promise of equality under the law."

The staff report on the Council Agenda includes the following information provided by Burk Deventhal, who is Deputy City Attorney for San Francisco.

"The petition argues that the California Constitution does not allow a bare majority of voters to use the amendment process to divest a politically disfavored group of its fundamental right under the California Constitution to equal protection of the laws. Such a sweeping redefinition of equal protection would require a constitutional revision rather than a mere amendment. Article XVIII of the California Constitution provides different vehicles for amending and revising the Constitution. Article XVIII allows a solitary citizen, without any public deliberation or review, to draft and circulate an initiative petition to amend the Constitution. But, only the Legislature or a constitutional convention of popularly elected delegates may submit proposed revisions to the Constitution. And the Constitution further circumscribes even the Legislature's power to submit to the voters either a proposed a constitutional revision or a proposal to call for constitutional convention. In either case the Constitution requires a 2/3 vote of both houses of the Legislature.

Proposition 8 provides a compelling example of the reason for the California Constitution's distinction between proposed amendments and revisions. The Constitution requires substantially more process receding the submission to the electorate of revisions because the consequences of a revision can be so much more pervasive and far reaching than the consequences of mere amendments. Proposition 8 is such a pervasive and far reaching measure. Not only does it strip from an unpopular minority its fundamental right to equal protection by enshrining discrimination in the Constitution. Proposition 8 also prevents the courts from exercising their historically significant power to protect unpopular minorities from discrimination. For that reason we argue that a bare majority of the voters without the benefit of the process that precedes a revision may not approve such fundamental and pervasive changes as those proposed in Proposition 8."

This is the issue that was talked about directly after the election the fact that with the court's definition of this issue as a substantive right, the question of whether a simple majority of the public can vote to deny someone of a substantive right--or would such an action require a two-thirds vote of the state legislature as well.

Supporters of Proposition 8, argue that this is simply a matter of majority rule and that the majority has spoken. I have great support for democratic principles of majority rule, however, I do not believe that the majority can vote to take away rights of the people. The produces a tyranny of the majority.

James Madison wrote in Federalist Paper 51:

"It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure."

Madison continued with the solution to this quandary:

"In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

Our system of checks and balances were intentionally designed to thwart the tyranny of the majority. However, the founders realized that was not sufficient and thus they developed the Bill of Rights to further protect the rights of people against the inclination of the majority to take away rights from the minority. In Marbury vs. Madison, the court recognized the need for judicial review and since that point the courts have sporadically been used as a check against the tyranny of the majority whether it be a majority of government official or a majority of the voters.

The court faces three 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 is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The city's resolution is very basic suggesting that the voters passed Proposition in November of 2008, a number of entities have filed suit to stop it, the city of Davis joined in an amicus petition in October of 2007 and passed resolution against Proposition 8 in September of 2008, and finally the City and County of San Francisco is asking for communities to consider joining an amicus petition.

"THEREFORE, BE IT RESOLVED by the City Council of the City of Davis that the City Attorney, on behalf of the city of Davis, is directed to participate in the filing of an amicus brief to join the challenge filed by the City and County of San Francisco, et al."

Remember according to the staff report, there is no fiscal impact to the city. Davis thus follows cities like Berkeley which chose not to actually sue because it has much more limited financial resources than San Francisco and Los Angeles.

I am less than certain that this should have been a consent agenda item, however, I do think this is something the city of Davis should do. Unlike resolutions against the war, Proposition 8 has a direct impact on the city, the county, and the citizens over whom the city governs. Moreover, joining in an amicus brief is more than a mere symbolic action. This seems like a no-brainer, although the 20% of the citizens who voted for Proposition 8 probably will not agree.

---David M. Greenwald reporting

Commentary: Prop 8 Protesters Take To The Streets

Here we are almost two weeks after the 2008 elections and we are still thinking about 2008 election results. Part of that is because the results are not finalized yet. We still do not know what happened in three Senate races, a few house races, some legislative races, heck we still have a state that is not completely clear yet. And yet probably the big news next to whether or not Barack Obama is going to name Senator Hillary Clinton as Secretary of State is Proposition 8.

The Vanguard wrote about Proposition 8 last weekend, and yet people were still posting to that thread as late as Thursday. Now I have some additional thoughts on the proposition.

The day after the proposition passed by a relatively narrow margin, the activists hit the streets to protest it. I found that very odd frankly. Even now, I have mixed feelings about protesting the passage of a proposition. Let me explain.

My first reaction was that the majority of the people who voted, voted in favor of the proposition. So what good would a minority protesting it do. It seemed like a futile gesture. I mean whatever you think of majority rule in this case, it certainly supersedes mob rule.

And those of you have been discussing Proposition 8 with me know I do not necessarily agree with majority rule in this case. I see the right to marry as a fundamental right. I do not think that it can be abrogated by the vote of the people any more than free speech can. Some obviously do not see marriage as that sort of right. They see this as simply changing the traditional definition of marriage. But that is a much trickier argument than people perhaps want to admit. At one point in our nation's history, the definition of marriage was the union of a white man to a white woman. Intermarriage until really the last forty years was outlawed in most states. Moreover, at one point blacks could not even marry other blacks. So it is not as though we have not changed the definition of marriage.

I am going to avoid the debate between a separate status for same-sex partners than the marriage status for two-sex partners other than to say if there is a reason you want the status separate, then it's probably the same reason same-sex partners want the same status.

Back to the protest test. My second reaction to the growing number of protesters is where were you before November 4? This frankly frustrates me to no end. If every person who is protesting spend the time they are taking to protest and instead prior to the election canvassed their neighborhoods, I wonder if we would not have had a different outcome.

People have and will spent a lot of time analyzing the results and I agree with some of the analyses. But, I think you also have to look at the ad campaign. For the most part the ad campaign the Yes on 8 side ran was not running simply against marriage. The two most effective string of ads were the emotional appeal using the imagine of San Francisco Mayor Gavin Newsom. And the misleading scare tactic suggesting that not passing Prop 8 means same-sex marriage is taught in school.

When they covered the protests and counter-protests in Roseville prior to the election, that was the argument that the pro-side used. That having legal gay marriage means it gets taught in school and children learn that its okay for a boy to marry another boy. There was a fear by some that if children learn about same-sex marriage, they will want to get married to a same-sex partner. This fear of homosexuality, actual homophobia was a powerful tool used.

I go to these lengths to suggest that had these protesters been canvassers and talked with people, these fears could have been allayed. At the margins the vote was about fear not about philosophic opposition to marriage.

I had the same reactions years ago when people protests Proposition 187 and 215. Do not protest, vote and work to get out the vote.

And yet, here comes the mixed emotions part. I like to see people hit the streets. A moment ago I called it mob rule, but really it is not mob rule. It is expressing the right to free speech--a vital and vibrant part of our democratic tradition. I am a believer that thousands of people hitting the streets is a good thing and can lead to change. But only if it is harnessed into a movement that can actually do something.

I have said many times that I believe the time and demographics are on the side of those who support gay rights. In general our society has moved in that direction. I believe by the time my generation is in their fifties, this will be a non-issue. I think a generation that has grown up with openly gay people in every facet of life necessarily is more supportive of the rights for gay people. Moreover, you can not fear monger them out of their support for gay marriage. No one who has grown up around gay people and understands it is going to believe that teaching about gay marriage in school is going to convince children to become gay. Nor for that matter will they necessarily fear their kids being gay.

Some people have suggested that this is a manifestation of youth that may change over time. I do not think this is a young issue, I think this is a comfort and familiarity issue. In a way, I think younger generations having been raised in a more explicit and sexually overt time have an advantage over their older counterparts, I think younger people are more comfortable with their own sexuality and that shows up in a number of ways from willingness and openness to talk frankly about sex, to other issues such as sexual orientation. Certainly there are downsides to openness and comfort about sexuality when it comes to issues of infidelity and promiscuity, but in terms of tolerance and acceptance, it is an advantage and one that is not likely to change over time.

And yes it is true that first time voters voted against this proposition by a two-to-one margin and so some of the differential between the outcome a few years ago and the outcome this year is an artifact of that difference. Nevertheless, the gap between 22 points and 4 points is not merely explained by increased voter participation. It is too large a gap. Rather, it points to an increased acceptance level that is likely to grow over time.

Still getting back to the original issue of street democracy, the verdict is not in yet on that. If they are simply blowing off steam and that steam dissipates, then taking to the streets is still a futile gesture. They are not going to change the outcome by going to the street. They are probably not going to change a lot of minds. And they are not going to influence a court ruling. However, if they can harness that energy to create a grassroots movement that will be the foot soldiers for a new initiative, then it is not futile to take to the streets.

Is that likely to happen? My experience is that few protests of these sorts last long enough to be effective. Anti-war protests in the Vietnam era were fueled by external events that enable them to sustain themselves. Civil rights protests perhaps are a closer parallel. Still the effectiveness of those protests were largely aided by the brutal response from authorities that will not occur now.

Organizers should get names, numbers, start Facebook groups, and start a movement. The closest example to that type of mobilizing effort might be something like MoveOn.org which started out as a simple internet message and turned into an organization that had some staying power and varying levels of influence.

The but ultimately the success or failure will depend on the ability of leaders to organize and the willingness of protesters to partake in other activities such as canvassing.

Regardless, as I have said throughout this process, I believe this is simply a matter of time.

---David M. Greenwald reporting

The Legal Challenge to Proposition 8

My first inclination to a legal challenge of constitutional amendment is skepticism. But the more I look into both the court ruling by the California Supreme Court and the issue of the changing the California's Constitution the more I recognize that the opponents of Proposition 8 not only have a strong case, they are very likely to win.

The genesis for this belief is that court's ruling itself which is far stronger than a typical court ruling. They are argued two things. First that same-sex couples had a fundamental right to marry and second that the underlying law violated the state's equal protection clause.

Here is the first part of the ruling:

"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."

Now, what has happened is that the voters by a majority have supposedly altered the constitution to deal with that issue.

But one of the questions is whether the voters can do that by majority vote. For instance, forget the federal constitution and federal courts for a moment, could the voters of California pass a constitutional amendment to outlaw freedom of speech in California? Or could they pass a constitutional amendment to outlaw miscegenation? Many legal experts believe they could not do that. And because of the how the California Supreme Court ruled in May, they would have to essentially do that for the majority on the Supreme Court set the bar that high by ruling the right to marry "substantive legal rights."

McFadden v. Jordan (1948) 32 Cal.2d 330, 333 ruled:

“The initiative power reserved by the people by amendment to the Constitution in 1911 (art. IV, s 1) applies only to the proposing and the adopting or rejecting of ‘laws and amendments to the Constitution’ and does not purport to extend to a constitutional revision.”

From several articles I have read, there is a substantial amount of case law on the issue of a revision not being able to be placed on the ballot by the signature process. Some of that case law is pretty recent. For instance, the California Supreme Court ruled in 1990, that voters can propose amendments to the Constitution that will be placed on the ballot if the requisite number of signatures are obtained, but they may not propose constitutional revisions. A constitutional revision requires a two-thirds vote of the Legislature to reach the ballot. That did not occur.

That leaves open the interpretation as to whether this is in fact a constitutional revision.

A 1990 court ruling suggests that it might be: “the revision provision is based on the principle that ‘comprehensive changes’ to the Constitution require more formality, discussion and deliberation than is available through the initiative process."

Given the scope of the courts ruling, to this layman, it would appear that any change to the same-sex marriage law would in fact constitute such a revision to the constitution.

And let us think about that for a second. From the state's perspective, do you believe that the voters by the signature and initiative process could overturn constitutional protections for free speech or outlawing anti-miscegenation laws? That seems doubtful. Now you may not agree with the Supreme Court ruling, but right now that is the law of the land and their interpretation of the right to gay marriage clearly rises to that level. Given the strength of that ruling it seems difficult to imagine that the same court would allow this constitutional amendment to stand.

However, just in case, the challengers will be arguing even if Proposition 8 deals with the marriage portion of the Supreme Court's ruling, it does not address the equal protection portion of the Supreme Court's ruling. The challenge would assert that the state constitution is now in conflict with itself--part saying that same-sex marriage is illegal and the other part says that same banning sex marriage is in violation of the equal protection clause.

The interesting question for now will be, will the courts stay the implementation of the amendment while the legal process plays out and what happens to the people already married.

The backers of Proposition 8 believe that the law would invalidate the marriages performed between June 16 and Election Day. Attorney General Jerry Brown disagrees.

The San Francisco Chronicle reports:

"And Attorney General Jerry Brown, who represents the state in court, said he would defend the legality of the thousands of same-sex marriages conducted in the 5 1/2 months leading up to election day - even though sponsors of Prop. 8 say the measure was intended to invalidate those marriages. That controversy is also likely to end up before California's high court and could reach the U.S. Supreme Court.

"It is my belief that the courts will hold that these same-sex marriages entered into are valid," Brown said in a statement. He said he would defend Prop. 8 against legal challenges, but would also defend "the marriages contracted during the time that same-sex marriage was the law in California."

Roughly 18,000 same-sex couples were married in California between June 16 and November 4, 2008. It will be interesting to see how this plays out, unfortunately for those individuals, a very harrowing time, no doubt.

I want to reiterate what I said a few days ago. Backers of proposition 8 point to the fact that they have now won twice, votes before the voters, as though that were somehow to stand up for all times. They of course will not acknowledge that the first time it came before the voters, the ban passed by large margins and this time it was a nail biter. I would wager to guess the next time this comes before the voters, it probably will not pass. Time is not on the side of the opponents of Proposition 8. They were able to win this largely through peripheral issues and mobilizing a diverse coalition of opponents. However, the impact of the narrow victory suggests the trajectory of public opinion on this issue. It is only a matter of time before the voters as a majority support the right of marriage equality.

---David M. Greenwald reporting

Proposition 8 Leads but the fight for Gay Marriage Has Not Died and Will Not Die

Probably the most grueling fight on the ballot in California was for Proposition 8. Proponents and Opponents spent over $65 million on it.

Right now the measure is ahead and it will probably pass. Opponents of Proposition 8 have not conceded defeat. Many people poured onto the streets of Sacramento yesterday evening and elsewhere to protest the passage of the law that overturns the Supreme Court decision that had allowed same-sex couples to wed.

Now opponents have filed a petition with the California Supreme Court to invalidate the proposed constitutional amendment. They charge that Proposition 8 is invalid because the initiative process was improperly used in an attempt to undo the state constitution's core commitment to equality for everyone.

While opponents point to several million ballots that are uncounted statewide, the likelihood is that this measure will pass given its 400,000-vote advantage and the broad coalition that ended up supporting it.

Obama won California by over 24 percent, thus large groups of Obama supporters also backed Proposition 8.

For instance 59 percent of California Catholics supported Obama and 64% supported Proposition 8.

According to Mark DiCamillo of the Field Poll, their exit polling showed that religion trumped party affiliation on these type of social issues. 84% of those who attend church weekly voted yes and 83% of those who never attend religious observances voted no.

Why did this measure pass when it was well behind a few months ago.

I think in part, that the No on 8 campaign was too slow to counter very deadly campaign ads from the yes side. One of the biggest was the one of San Francisco Mayor Gavin Newsom. A few weeks ago I suggested that Newsom would cost this election as he cost John Kerry the election in 2004. I stand by that comment. Key states in 2004 utilized the gay marriage issue to get out conservative voters. That proved decisive in Ohio where the margin was narrow and the victory decisive for Bush. It was Newsom in part who put the issue to the forefront and helped galvanize conservative voters across the country. And yes Massachusetts Supreme Court played a role, but then as is true now, Newsom was the face that they used.

Phil Bronstein, a San Francisco Chronicle Columnist agrees.

"Gavin Newsom screwed it up. Voters are the ones who make the decision but no one person handed the Yes on 8 campaign a more persuasive and compelling sound bite than our own mayor. Even if there were other flaws in the anti-8 operation, he was unquestionably the poster child for the pro-8 push, whether you like it or not. And unlike Willie Brown, whose 70s high afro and muttonchop sideburn photo got used as a thinly disguised racial scare tactic in the 80s by some Republican candidates for the State legislature (nothing he could do about it), Mr. Newsom willingly and imperiously handed over the ammunition in yesterday's election."

But it was not Newsom alone. In the last month when the No on 8 side closed the gap again, it was due to a slew of very effective ads including one from Dianne Feinstein and one from Samuel L. Jackson.

The problem was they were too slow to react to very damaging but misleading campaign ads charging that students would be forced to learn about gay marriage.

There is an irrational fear on the part of many regarding this issue.

I was listening to the people interviewed in Roseville and the one thing that was said that settled it for me was the guy with the Yes sign saying that he was afraid his kids would learn about same sex marriage in school and would think it was alright for them to marry someone of their own sex. You know there is a word for that view point and it is "homophobia." They are afraid that their kids are going to be gay.

The truth is it is difficult for kids today not to find out about sexual orientations other than straight relationships. It is impossible to keep kids from learning about homosexuality. Learning about such things does not make someone gay. That fear is very real but it is very irrational.

However, despite the brutality of this fight, I still believe time is on the side of those who support gay rights and the right to marry. I am 35 years old. I believe that for most people my generation, the issue of same sex marriage is not a big deal. We know gay people, we have gay friends, gay family remembers, gay colleagues, acquaintances, etc. We are not threatened by their existence. In twenty years, the majority of the population will have grown up with gay people in the open. And while the very religious may still object, the majority of the population will not.

It is inevitable. Just as we once viewed the issue of civil rights as a paramount issue and some felt threatened by granting blacks the right to vote or sit at their table or in the front of their bus, people now are threatened by the prospect of same sex couples having marriage rights. But just as we now look back at the previous prejudices as antiquated and wrong, we will one day do the same for same sex marriage fears and hatred.

---David M. Greenwald reporting

Guest Commentary: Opposing View on Same-Sex Marriage

Steven Ostrowski

This November, Proposition 8 will be decided by the voters of California. It will decide whether same-sex marriage stays or goes in the state of California. In the year 2000, Proposition 22 wrote into our family law that marriage was between a man and a woman. This passed overwhelmingly with 61% of the vote. A few months ago, this law was struck down by a divided California Supreme Court in a 4-3 decision. Now we are given a choice to reaffirm the Court’s ruling or change the California Constitution to ban same-sex marriage in the state. According to most legal sources, all same-sex marriages made prior to the passing of Proposition 8 would become invalid.

The first argument made by the opposition is that same-sex marriage is a right that should not be taken away. It is thus implied that the passing of Proposition 8 would strip same-sex couples of their right to marriage. When it comes to the word “rights” there are two sources people come to as to where these rights come from. The framers of the US Constitution believed that our rights came from our Creator. Others believe that our rights come from the state.

If our rights come from our Creator, then the argument become theologically and speculative as to whether our Creator deems it a right to grant same-sex marriage. The framers of the Constitution under a liberal version of Protestantism believed that the Creator desired that we have the right to life, liberty, and the pursuit of happiness (property). At the time, this was quite a radical document as it was in great contrast to Divine Rule of Kings. The “No on Proposition 8” campaign has not used the Creator as a source for their right for same-sex marriage. It has never been mentioned in this campaign and it probably won’t. So I will assume that the opposition believes that their rights come from the state.

If that is the case, the opposition must concede that their rights are determined based on the people, democratic processes, and the Courts. If the state, through the people, strip same-sex couples of their so called right to marriage it must be conceded as totally legitimate. How can there be moral outrage if the people can give and take away? Unless of course, the opposition is relying completely on the Courts for their protection. In which case, even the Courts are answerable to democratic processes.

But is same-sex marriage even a right? I do not believe so. It is no different than a driver’s license, hunting license, fishing license, boat license, airplane license, etc. It requires qualifications and permission from the state. Anything the state grants as a privilege cannot be considered a right. Indeed, a county clerk could decide not to let anyone marry. This has occurred in at least two counties in California in recent months.

Under the Equal Protection of Law clause, I believe that this has already been completed in California. Civil Unions have the same exact benefits as marriage benefits. The only difference is the title in which it is called. The argument that a civil union is considered inferior to same-sex marriage cannot be determined. It can’t be determined because it is a qualitative analysis based on individual persons. Furthermore, we have not yet seen the results of the people’s acceptance to the term civil union as opposed to same-sex marriage. It could be argued that many people would consider same-sex marriage to be a less legitimate term than civil union. In any case, the Court was not given enough information to make a proper decision on the matter and thus we have a 4-3 split decision. But even if civil unions were considered inferior to same-sex marriage, it wouldn’t matter because the Court should not be making values on what is inferior or superior to what.

For those of us who wish to preserve democratic freedom, we should be appalled by the Court’s decision even if we agree with it. As stated before, the voters approved Proposition 22 by 61%. Imagine if a proposition you voted for became overruled on the whim of a court despite a state-wide consensus. For many, it is not legitimate for the Court to overrule the people on any particular proposition regardless of whether it’s trivial or mundane. A great many others are displeased that instead of going through the proper democratic processes, members of the gay community have sued to institute their view. This gives myself and many others, the impression that the gay community is simply using the Courts to get their way because they are hopelessly outnumbered by the general population. This will not create mutual understanding and reconciliation between the gay and straight community. Instead it will breed discontent, accusations, and hurt feelings.

An argument against Proposition 8 is that we should not impose our values on the state. However, it is quite the opposite. The opposition is imposing an unwanted definition on the institution of marriage. It must be conceded that both sides wish to “impose.” To not concede this, is to not understand the power of the democratic process. We all impose our values on everyone when we vote. Failure to do so is simply apathy. Even a moderate view is an imposing view point. Either same-sex marriages equal heterosexual marriages or they do not.

This brings up the point of religion. The opposition has accused the yes campaign of using religion to impose their values on the state. Although both sides wish to impose, religion is seemingly a more negative form a persuasion than secular reasoning. I find this to be most intolerant of the opposition to keep religion out of the democratic process while tolerating more secular arguments. What difference does it make why people vote a certain way? What difference does it make whether a priest declares a message versus a civil servant? Indeed, there are many pro-gay churches who preach the exact opposite and yet the opposition does not consider this to be threatening.

This leads into the more negative expressions, I have experienced from the opposition. I have been told that I must be bigoted, intolerant, extremist, and hateful to support Proposition 8. So, is 8 hate? I find it rather presumptive for the opposition to imply such a thing. There is nothing in the ballot description, which was edited by Jerry Brown, to suggest hate. Some supporters of 8 have shown hate in their emotions, but this is also true with the opposition. There are lesser beings on both sides, but Proposition 8 is not in it of itself hate. In fact, if we were to take this hate value to its logical conclusion it would require us to take a rather unfavorable view of our country.

Eighteen states have banned gay marriage in their constitution and all other same-sex unions. An additional eight has gay marriage as just banned in their state constitutions. Seventeen more states have banned gay marriage as a statute in their laws. So, a total of 43 states have banned gay marriage as compared to three states that explicitly allow gay marriage. So, there must be a lot of hate going around. And especially so in California as we can see the polls are almost even on this proposition. The opposition should not consider Proposition 8 as hate due to very plausible chance that it could pass. But perhaps opposition is just making a moral judgment on this issue, in which case I would humbly request the source of this moral outrage.

So, what is at stake here? The definition of marriage has the precedence of thousands of years as being only between one man and one woman. Homosexual relationships simply do not qualify for this term. Marriage, as supporters would say, is for the procreation of children and a social foundation for the creation of families. This obviously excludes a lot of individuals, but that is the point.

Marriage only holds value if it procreates children and is monogamous. Marriage loses value through divorce, series of divorces, adultery, open relationships, and couples willingly refusing to have children. Instead marriage has become a mere contract with no real special or profound characteristics. It’s a social and economical contract with the state and nothing more. This change in definition from a family creating unit to a mere sexual relationship has destroyed the value of marriage.

The value of marriage or a same-sex marriage is always going to be subjective, but this is a subjective debate. But why should the supporters care if the value of marriage goes down with the emergence of gay marriage? Marriage in a lot of ways is like stock. If you devalue an institution, everyone’s stocks become worthless. Then people bail out of institution all together. We will become like Sweden where marriage is scarce and often ridiculed. The creation of gay marriage cements the philosophical view that marriage is not a family creating unit, but a mere social contract with the state. For religious individuals, who believe their marriage is sanctified by God, and more secular individuals this is rather troubling.

The collapse of marriage will affect everyone across the country. Divorces cause enormous strain on the economy when it comes to commercial spending, housing, and the raising of children. Not one politician in the nation actively supports people getting divorces. When people live by themselves and do not combine their economical assets it hurts the economy or changes it in such a way that it may hurt us personally. When children are raised with only one parent, it has a profound impact on our economy and social services. It must be conceded that marriage is a good thing for society.

That is why the value of marriage must be preserved. A clear example is the movie Chuck and Larry where two males, who have no romantic intentions, become married for the sole purpose of getting benefits from the government. That marriage is just as valid as the marriage between two heterosexual individuals who have been married for 50 years and have many children and grandchildren. For those of us, who value their own marriage or potential marriage that is an unsettling thought. Now, it can be easily argued that a scenario like this already exists with Las Vegas weddings. This is true, but pointing out other bad behavior doesn’t make other bad behavior good.

And so what about infertile couples, those who do not wish to have children, and the elderly? Should we prevent them marriage licenses? I would say no, because infertile couples through time may be cured of their illness or problem through medical science. There have been many Biblical accounts of infertile couples who were also old that gave birth. Culturally, the Christian cannot refuse to marry these individuals. Also, those who refuse to have children may change their mind in the future. In addition, the process to find out these answers would violate privacy and self incrimination principles. So, the government must side on the side of caution and give all heterosexuals marriage licenses. Same-sex marriages are obviously different and can be detected as such through physical appearance and record keeping. Same-sex couples under no biological circumstance can they produce children through both partners. Artificial impregnation does not create a natural family, because the father or the mother of the child is absent, and the other spouse involved did not donate in the creation of the child.

Furthermore, those who value free speech and religious tolerance should consider the ramifications of what this country will be like under a more secular culture. Priests and pastors are being sued, fined, and jailed for speaking out against homosexuality in their own churches. Americans are not immune to this; hate crime legislation is encroaching steadily on what one can say and cannot say. Indeed, our confidence in the 1st Amendment is based on the US Supreme Court and the government. If both side against you, for whatever reason, you lose your voice regardless of what the US Constitution says. Churches may be stripped of their non-profit status if they do not hold gay weddings or if they speak out against them. Public schools will inevitably be taught gay marriage, as it is already being taught in Massachusetts, with or without the permission of parents. Without access to vouchers or alternatives, parents may have to compete with schools on what their child learns. Gay students may become segregated in special schools as is the case in Chicago. The slippery slope is not very inviting to supporters, all movements in history start out small.

So, the solution to increasing the value of marriage is to not making it easier to obtain but harder. It would go a long way, if couples had pre-marriage counseling, divorce counseling, heavier divorce penalties, as well as government incentives to keeping people together through the use of tax credits and/or social programs. Small reforms can be made to prevent the Las Vegas weddings that are harming the image and value of marriage in this country. Gay marriage is not the answer; it detracts from the philosophical view of what marriage is supposed to be. We will never be able to fix these problems if marriage becomes a right with no responsibility or accountability.

So, I hope there is some understanding as to the concerns supporters have if Proposition 8 does not pass. I have not preached to you Biblical verses or the writings of Popes and saints. I am having a conversation here that can be easily understood by all regardless of culture or religion.

Preserve the value and philosophy of true marriage by voting Yes on Prop 8.

Steven Ostrowski

empirestv@yahoo.com

Proposition 8, Same-Sex Marriage Ban Doomed?

When the first Field Poll came out in July showing that 51 percent of the voters polled opposed Proposition 8, it seemed for the first time really that the measure that would nullify a State Supreme Court ruling striking laws that prevented same-sex marriage might be in trouble. Historically at least, ballot measures decrease in popularity as the public learns more about them and as uncertainty grows about the measure.

Working in favor of same-sex marriage ironically enough were the controversial decisions not only to lift the ban on same-sex marriage but to allow marriages to occur. Suddenly California voters dealt with same-sex marriage not only in principle but in fact. Perhaps that has enabled Californians to realize that allowing same-sex partners to wed was not the threat that some had made it out to be.

Regardless of that those initial evaluations, the opposition to Proposition 8 has only grown since then. Last week, the new Field Poll, the bellwether of California polling organizations, found a strong increase in opposition to the ballot measure. In this poll, 55 percent oppose Proposition 8 and only 38 support.

The question now is whether or not the measure is doomed. Neither side of course is willing to concede. Indeed the Yes on Proposition 8 has according to reports this week outraised the No side $15 million to $12 million. However, both sides have ample money for the stretch run and money does not appear likely to be deciding the factor.

Both sides downplayed the significance of the poll.

Geoff Kors, executive director of Equality California, which supports gay rights said:

“We think there’s 15 to 20 percent that are still undecided on this issue. We do believe that if we can get our message out at least equal to the other side, we will win, but that’s a fund-raising issue.”

Jennifer Kerns a spokeswoman for the "Yes on 8" campaign said:

"That was certainly something we expected to see. Historically, the Field Poll has underestimated support for traditional marriage."

However, the director of the Field Poll, Mark DiCamillo agrees with my assessment.

"Initiatives that are trailing, either at the initial measurement or in subsequent measures, rarely pass. History is working against passage."

Moreover, opinions on issues such as same-sex marriage do not tend to fluctuate dramatically.

Two weeks ago, the Davis City Council unanimously endorsed a resolution opposing the measure in a resolution. The measure brought out a number of citizens on both sides of the issue, however, the No on Proposition 8 side had the majority of the speakers.

As I mentioned a few months ago and again at the onset to this article, I think Proposition 8 is doomed. And I think a key factor to it is that people were able to wed back in June. That action took away part of the wedge issue that opponents of same-sex marriage usually employ. People simply are not going to run in fear of what will happen if same-sex couples are able to wed because they have already wed and most people would never know the difference. The fear of the unknown has been taken away, it has also been humanized. Watching happy same-sex couples, overjoyed in being able to final share their love for each other is a powerful antidote to fear.

I have long suspected that same-sex marriage was an idea whose time was going to arrive. Demographically speaking, the younger generation, people my age and younger, have grown up in an openly gay society. We have gay friends, gay relatives, gay colleagues. Everyone knows at least some gay couples. There is a level of acceptance and a level of comfort that did not exist in prior generations.

That said I would never have guessed that at least in California the time would be now. It seems like just yesterday it was February 14, and I was once again in Freddie Oakley's office watching her giving out certificates to same-sex couples and wishing for the day she could legally marry them. This day seemed so far way on that day. Who knew that only four months she would be doing those ceremonies for real and that in November we would in fact be certifying and formalizing that Supreme Court decision.

---Doug Paul Davis reporting

Commentary: Marriage Equality Comes to Yolo County

On February 14, 2008, I was at the County Clerk's Office once again covering County Clerk Freddie Oakley's protest against laws prohibiting the marriage of same-sex partners during her lunch hour. The day when Freddie Oakley would actually be able to marry such partners seemed hopelessly far off in the distance.

All of that has changed with a recent court ruling that has left open a window of time perhaps between now and Election Day when California same-sex partners can wed. Who knows what the Election Day will bring, perhaps the run on same-sex marriages during that time will convince people that the sky will not fall and that same-sex partners can hardly do more damage to the institution of marriage than has already been inflicted by high divorce rates and infidelity. Maybe.

Election Day must have seemed very far away yesterday for partners who have been waiting a lifetime to be legally and officially married. What it means to be legally and officially married will probably have to wait a few months or even years for the courts and the legislature to figure it out. But again, that likely was far from people's minds yesterday.

I have to say one of the worst images of the day was that of the protester who barged into someone's wedding.

The one plastered on television was Yuriy Popko:

"I came from the Soviet Union, and this is judicial tyranny – they're starting to regulate religion."

I am a very strong supporter of free speech, but whether you agree with gay marriage or not, shouldn't people have the right not to have you barge into their wedding, a day they will remember for the rest of their lives? Protest outside if you must. I find that a very disgraceful act that does not reflect well on that individual's faith.

Meanwhile controversy spread quickly across cyberspace in Davis as the revelations of an email from the owner of Ken's Bike and Ski Shop circulated and were posted on the Davis Wiki.

People were calling on the boycott of the bicycle shop. It was a letter to County Clerk Freddie Oakley.

The letter urges the County Clerk to

"uphold California law and maintain public order by NOT issuing any same-sex 'marriage' licenses unless and until the laws regarding marriage in California are altered. The separation of powers provision of the California Constitution clearly states that laws may only be changed by the legislature (with the governor) or the initiative process. The courts may rule on the constitutionality of existing laws, but may not circumvent the Constitution by writing new laws."

What the courts did of course was declare a law prohibiting same-sex marriage unconstitutional. Without such a law, local jurisdictions then have the right to determine their own policy.

He goes on to state:

"The applicable statutes (California Family Code, Sections 505, 300, 308.5, 301, etc) clearly state that marriage is between a man and a woman. County Clerks may not change the wording on these applications, and if in defiance of the law they do so, the California Department of Public Health must reject any such altered applications, as was properly done in 2004 by the Office of Vital Records."

He is correct that County Clerks may not change the wording--but the court has the authority to declare such laws unconstitutional by ruling that they violate the equal protection under the law. The courts have perfect authority to make such a ruling which in effect strikes this language from the law.

Then the key part of the letter:

"Any attempt to circumvent these laws, absent a change in the laws governing these forms and the process for their use, is dangerous and unconstitutional."

The courts of course have authority over what is and is not unconstitutional. In other words, the action is not unconstitutional unless the courts say so. By ruling the portions of the statute unconstitutional, they have negated those laws.

The owner of Ken's Bike and Ski Shop of course has every right to express his opinion on such a matter. On the other hand, the wisdom of such an act in a town such as Davis is questionable. He should have expected that his letter would get out into the community and would likely cause harm to his business.

Meanwhile I can respect the views of those who believe that same-sex marriages go against their religious teaching. I do not wish to impose my morality on others anymore than they would impose theirs on me. What I do not understand is how a religion based on the teachings of love and forgiveness becomes so hateful and intolerant when the issue of gay marriage comes up (as opposed to all of the, in my book, far greater evils of the world that often do not even register a complaint).

The fight in California this fall, I am afraid will be polarizing and ugly. I think that is unfortunate. It is unfortunate that an act that is supposed to bind love and understanding will instead foster hatred and polarization.

Will the ban on same-sex marriages pass in November? It is an interesting question. California for example has tried to pass a parental notification law for several years and has not been able to. It will be interesting to see if the resolve against Gay Marriage runs deeper than that against certain aspects of abortion law.

In the meantime, it is my sincere hope that those who were finally able to marry are able to find peace and fulfillment within their new relationship.

---Doug Paul Davis reporting

Friday Musings

There are a bunch of interesting happenings that somehow do not seem to amount to one full story, so here they are.

Wedding Time

Every year County Clerk Freddie Oakley holds her protest hoping that some day same-sex partners can get married. Apparent that day will come next Monday and the County will have to open a second room to accommodate the roughly 19 or 20 same-sex couples that have scheduled weddings for next week.

The weddings, according to Davis Enterprise reporter Corey Golden will take place in the Roland and Betsy Marchand Room in the basement of the County Administration building.

I am a strong supporter of marriage for same-sex partners. My belief is that it is really only a matter of time before same-sex marriage is accepted throughout the nation. If you look at the demographic shift, you realize how inevitable this is.

I am 35, people around my age are in general supportive of gay marriage. We have friends who are gay, family members, etc. People younger than me are even more supportive of marriage equality. The gay marriage issue is really only controversial among people who are older than 45 or 50 and people who are very religious. Even those who are very religious and young do not have same animosity toward gay people are older people. It is a simple matter for us, we just grew up around gay people, it is no longer something unusual or scary.

That said, I do not know that we are there yet as a society or even a state. I am nervous having the gay marriage issue on the ballot this year both from the standpoint of not wishing to have a constitutional amendment on the books to deal with but also from the standpoint of not wanting to draw out the hardcore anti-gay voters who might not be enthusiastic about John McCain.

I also wonder what happens to people who got married in the narrow window between now and Election Day, should the voters vote to make marriage between same-sex partners unconstitutional. Obviously part of this is symbolic, going through the ceremony with your loved one in front of your families and friends. But the other part is legal and perhaps more important. There are legal rights that go along with marriage that are crucial and one of the reasons we will eventually have to do something in this society.

We cannot have a class of people who do not have rights to benefits, health care, power of attorney, and other marital legal rights. We may not need expressly marriage to get those legal rights, but we do need something and this is an issue not address enough.

In the meantime, a large number of same-sex partners will be having the time of their lives and that cannot be a bad thing.

Clinton Backs Out of Graduation

Former President Bill Clinton was scheduled to deliver a commencement speech at UCLA today. But earlier this week he canceled that speech due to the ongoing labor dispute.

Clinton's office said he would not appear because of the long-running rift between the university and AFSCME Employees.

The 20,000 workers involved in the wage dispute range from technicians at UC medical facilities to janitors and landscapers. Contract talks have sputtered for months.

Clinton's office issued a statement:

"Due to the ongoing labor dispute, he regrets that he will be unable to participate in commencement this year and he wishes the UCLA graduates the best of luck"

A couple of days ago on the Vanguard, a student wrote in to the previous story where Clinton and Former Speaker Fabian Nunez declared that they would not cross the picket line to speak at graduation.

The student said:

"As a student about to graduate from UCLA, I am terribly disappointed that our graduation ceremony, a special time for students' friends and families, is being turned into a political circus.

We were only awarded two tickets this year for graduation. That's right - while most campuses get to have as many guests as their hearts desire, we can only have mom and pop sitting in the audience because Bill has to have plenty of elbow room for his posse of media and special friends. Last year's paltry number of FOUR tickets was low - this is just ridiculous!

Graduation is supposed to be a time for us to celebrate our accomplishments. Sometimes I am terribly disappointed in just how politicized every event at this campus manages to be. I certainly wish I knew about this coming into college...

I can't believe he would pull out just a few short days before one of the biggest achievements of our lives so that he can make a political statement. This day has nothing to do with him and everything to do with the graduates. "

I post this here, because most probably did not see that post but also because the student makes some good points even if I ultimately disagree.

First, I think there is a problem that you can only get two tickets for graduation and that might suggest that Clinton is not the best speaker to begin with. How can any event with Clinton in a year where his wife was a Presidential candidate up until last week, manage to not be political? Somethings are simply beyond my comprehension, I suppose.

As the student points out, graduation is supposed to be a time for students and their families to celebrate a great accomplishment and if one cannot have their family there, it makes it more difficult.

On the other hand, I think people need to have an understanding of helping those less fortunate that they are. Growing up in a union household, one of the things you learned is that you do not cross a picket line. So for Clinton to do so, would likely go against his own principles. It is unfortunate that innocent people get caught up in the middle of it, but at the same time, I am struck at the complete lack of acknowledgment by the student about the situation with AFSCME and their employees.

So while I agree that the day has nothing to do with Clinton and everything to do with the graduates, ultimately, when Clinton made the arrangement to speak at the graduation, he was not aware of the labor the strife on campus.

Target Breaks Ground

As we all know by now in 2006, voters approved rezoning for a Target store near the intersection of Second Street and Mace Blvd. Now finally almost two years later they will break ground on the store despite concerns about it being near a superfund cite.

Apparently in addition to Target there will be several other stores right next to it, the largest will be about 25,000 square feet.

The site is supposed to open in October of 2009. Apparently Target only opens stores three months out of the year in April, July, and October.

According to the Davis Enterprise story:

"Although the city doesn't know which businesses eventually will fill the buildings adjacent to Target, it put some limitations in the development agreement.

One 25,000-square-foot pad will allow for a building about the size of the former Food Fair store in West Davis, Webb said. Two pads allow for 7,500-square-foot buildings and one will be 6,000 square feet.

The city was able to specify the type of businesses it would like to see in those spaces, allowing restaurants, and community retail like clothing, electronics, soft goods or office supplies. Fast-food restaurants and neighborhood services can take up no more than 10 percent of each pad building space, Webb said.

The city also specified that building permits for the pads must be issued within two years of Target's permit. "

Funny no mention of the LEED certification. I know some people are excited to have a Target in Davis. As one who does not shop in Target outside of Davis, I will likely not shop in Target in Davis or at any of the satellite stores as well. I think we need to continue to support our local downtown business.

---Doug Paul Davis reporting