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

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

PG&E in local and statewide news

Two years ago, PG&E spent over $10 million in an effort to prevent Yolo County from approving a public power initiative. Now PG&E is back in the news at the local level as well as at the statewide level.

There has on this blog been a long debate over the viability of a proposed development on the PG&E Service Center Site located at 316 L Street. The site encompassed around 27 acres, extending from Fifth Street to Second Street.

Councilmember Sue Greenwald has long trumpeted the site as a largely relatively unused parcel that would be walking and biking distance to the downtown and even UC Davis.

Separated from adjacent neighborhoods it would be ideals for high density housing and condos.

However despite these advantages some have questioned its feasibility. One question that has arisen is whether PG&E even wants to sell the site.

Former Davis City Councilmember Mike Harrington, who also was a member of the HESC pointed out that there was a letter from PG&E to the City that indicated their interest in selling the property. (See the scan of the letter). As it turns out this was available all along on the city's website and in the HESC packet when the site came up for discussion on July 26, 2007.



The letter in part reads:

"As discussed during the June 7 meeting, the City's philosophy toward maximizing green, efficient and renewable technology and opportunities is consistent with that of PG&E. The company is sensitive toward the needs of the community and we are open to considering and exploring innovative alternative uses for the site."

That should settle at least that portion of the debate. What remains unknown is the cost to the city that they would incur from purchasing the property. Although it would seem to me that a developer could do it and recoup the costs by developing the property and selling the units.

Still this would seem to be one of the more interesting sites that if available, it appears most Davis residents could get behind.

PG&E Gives $250,000 to defeat Proposition 8

The Los Angeles Times reported yesterday that PG&E announced it would give $250,000 to the No on Proposition 8 campaign.

According to the Times:

"Analysts said businesses may be more willing to get involved this time because they have more gay and lesbian employees who are out and in positions of power and because they believe the amendment could hurt business if passed, by giving the impression that California is not friendly to gay and lesbians."

Spokesperson Eilen Chiu said:

“We fought for immigration rights as well as for affirmative action. Gay marriage is the next initiative we felt is worthy to fight for. Every single employee and customer deserves the right to marry.”

The company is also calling for other California businesses to publicly endorse allowing gay couples to marry.

Not surprisingly the announcement was met by less enthusiasm by supports of the proposition, one of whom quipped that he couldn't call them up and tell them to turn off his power.

But then again, maybe such a move might generate good publicity.

---Doug Paul Davis reporting

Field Poll: Gay Marriage Ban Losing Right Now

This week, the Field Poll was released showing that Proposition 8, the Ban on Gay Marriage was trailing by a 51-42 margin. This bodes fairly well for the efforts to defeat it.

From my experience it seems very rare that a measure that is initially trailing to reverse course and pass. The tendency in most proposition is once the ads start flying and the mudslinging begins, people develop more uncertainty and uncertainty in propositions leads to no votes.

I think there are a number of other factors that will also lead this measure to ultimately be defeated. But first, some interesting, if not altogether unpredictable splits in terms of demographics.

There is of course a very strong split between Democrats and Republicans on this. 63% of Democrats oppose Prop. 8 while 68% of Republicans support it. Non-partisans also oppose it by a 66% to 27% margin. Given predictions that this will be a Democratic electorate this fall, that bodes well for it going down to defeat. Another Field Poll showed Obama with a 24 point lead over McCain in California and there was a huge enthusiasm gap of nearly 2:1 with around 56% of Democrats excited to cast their vote for Obama but only 20-something percent of Republicans feeling the same.

The age factor is interesting as well. Not surprising the greatest support is among those voters under 30. I've always said that it is just a matter of time because those in my generation, gay marriage is really not an issue. We grew up with gay friends, family members, openly gay people in the community. As such it is just a matter of time before younger generations become a majority. What is interesting is that the baby boomer demographic, those 50-64 for whom gay rights first emerged, is also strongly supportive. It is then somewhat surprising that my demographic would be evenly split being between 30 to 50, although I wonder if there is a break point there.

Ethnically, Latinos are the only group supporting Prop. 8 with whites, African-Americans, and Asians opposing it.

The strongest religious group favoring Prop. 8 are the Protestants at 56-40%, Catholics interestingly enough are evenly divided, but all other religions and those with no religious preference are strongly opposed. Evangelicals favor the amendment by a 66-31 margin while non-evangelicals are opposed 59-34. From these splits, you can basically see where the support is coming from, and that is almost entirely from Evangelical Christians, again not surprisingly.

Here is another reason I think this proposition will lose. Those who personally know or work with gays and lesbians oppose the proposition by 54-40. That group includes three-quarters of the voters statewide. That ties in with my prediction about demographic shifts ultimately rendering this a non-issue. Familiarity tends to neutralize a lot of fears.

And along those lines, I think one of the reasons that this will fail is not captured in the Field Poll analysis. Basically, by the time the election rolls around same-sex couples will have been married nearly six months. The electorate will see that these marriages are not really the threat that they are made out to be. That will help neutralize a lot of the scare-tactics that proponents of the proposition will employ. People will see that same-sex marriages are not a threat to the institution of marriage. They will see that the sky is not falling. Playing into that is that nearly three-quarters of the people in this state know gay people, many will know married gay couples, and this familiarity will lead most likely to people voting against this amendment.

In the end, the best thing that could have happened for this cause for marriages to actually occur. You will have a strong Democratic electorate this fall, enthusiastically coming to polls in huge numbers to vote for Obama, the Republican electorate is not enthusiastic about McCain, they may not come out in huge numbers.

In short, I think this proposition which is already trailing will not pass. Already 62% of likely voters know something about this proposed amendment and I think the trends in propositions are for the no side to gain rather than lose strength.

---Doug Paul Davis reporting