What Next For Prop 8?

GLBT Week in Review February 15, 2012
BY ANN ROSTOW


What Next For Prop 8?

It’s been just over a week since a 2-1 panel of the U.S. Court of Appeals for the Ninth Circuit struck Prop 8 as unconstitutional. Eight days as I write, to be exact, filled with useless speculation over whether the Prop 8 People will appeal their defeat to the full Ninth Circuit or directly to the U.S. Supreme Court. I call the speculation “useless” because no one has any idea what they’ll do and I suppose they themselves have yet to decide.

But still, it’s fun to weigh the possibilities. The Ninth Circuit is roughly two thirds left of center and one third right. Some pundits figure that the antigay crowd would likely head straight for the High Court and avoid a second appellate loss in the process. But wait, say others. Wouldn’t they want to take their last shot at winning before asking the justices to take the case? After all, it’s not a given that the full Ninth Circuit will strike Prop 8. And even if they do, they might issue a decision that would force the Supreme Court to accept review.

As it now stands remember, it’s anyone’s guess whether the High Court would accept this case. Last week’s opinion was so narrowly crafted that the justices could easily decline, restoring marriage rights in California without tampering with the underlying legal issues. We’ve already had marriage rights in California and to use one of our favorite analogies, the sky didn’t fall. Surely in this complicated environment, with several federal challenges to the Defense of Marriage Act on the horizon, the High Court would be tempted to proceed with caution.

If, on the other hand, the full Ninth Circuit accepts review and writes a strong ruling for or against the fundamental right to marry or the status of sexual orientation, the High Court would have little choice but to hear the case and clarify these important issues.

Might the Ninth Circuit refuse to hear the case? It’s possible. Last week’s decision seemed strategic, clearing a path for this litigation to end with a victory at the California border without derailing other marriage cases going forward. Perhaps the left leaning Ninth Circuit will go along with the plan by avoiding the case and sending last week’s restrained decision to the High Court.

Did I mention that it’s useless to speculate at this particular moment? But that’s not stopping us!

For all the talk of will they or won’t they, quite a few analysts believe that neither the full Ninth Circuit nor the High Court will be able to resist jumping into the roiling stew of marriage equality and gay rights. Indeed, most of the mainstream news coverage of the Prop 8 ruling assumed (without explanation) that the Supreme Court would be the final word on the proposition’s fate, not even bothering to point out that the justices accept only one out of every six zillion petitions they receive.

Well, we’ll see won’t we? I think the bad guys have something like 60 or 90 days to make their move. I could check that, but we are not slaves to petty details in this column.
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Marriage is Bustin’ Out All Over

Meanwhile, as expected, Washington Governor Christine Gregoire signed marriage equality into law on Monday, bringing the Evergreen State one step closer to becoming the nation’s seventh free marriage state. Our adversaries have until June 6 to collect about 120,000 signatures for a ballot initiative that would define marriage as a union of one man and one woman. If they get their petitions in on time, marriage will be shelved until the vote. If not, marriage rights will take effect on June 7.

In 2010, recall that Washington voters refused to repeal their new domestic partner law by a margin of 53-47.

Over in New Jersey, the state senate has passed a marriage bill by a vote of 24-16. The house, or assembly—whatever they call it in the Snookie State---will vote on Thursday as we go to press, and the bill is expected to pass. Unfortunately, Governor Christie is also expected to veto marriage equality, based on his theory that civil rights should be subjected to a popular vote. I think a couple of weeks ago, he actually suggested that African Americans would have been better served if their civil rights had been put on state ballots back in the fifties and sixties. Hello Chris!

Here’s the good news that I just learned to my surprise. New Jersey lawmakers will have until January of 2014 to override the governor’s veto. That’s right, nearly two years to win, what, three more votes in the senate? We’ll soon see how close the house is to two-thirds support, and then it’s a simple matter of whatever it is people do to win votes. Lobbying I suppose it’s called.

We also have action in Maryland this week, where a marriage equality bill is scheduled for a vote in the House of Delegates in the next few days. Last year, we seemed on the verge of passing marriage equality in the Crab State until we pulled defeat from the jaws of victory and had to withdraw our bill from the House floor. This time, we seem to be on track to win a narrow vote, and if we can win in the state senate, as we did last year, we will send marriage equality to the desk of our friendly governor, Martin O’Malley.

I suppose an antigay petition drive will follow. It’s hard to qualify a repeal for the Maryland ballot, but conservatives had little trouble sending the state’s Dream Act to the 2012 voters, so they may well toss marriage into the electoral mix.

In Maine, we ourselves have put a marriage equality initiative on the ballot, presumably secure in the knowledge that it will pass. Marriage was legalized in 2009, only to go down to a narrow defeat at the polls that year before it could take effect. Three years later, the demographics alone should give us the needed edge. Frankly, I’m just trusting that the Mainers know what they’re doing here. I do know that they have a very strong organization and I am planning to toss them a few bucks. Keep in mind that this is the first time we have deliberately gone to the voters on offense.

As you may have noticed, the 2012 election is shaping up to be chock full of marriage votes. Minnesota has the distinction of being the one state to offer up an antigay constitutional amendment. (North Carolina people will also vote on an antigay amendment, but they do so in May.) But the rest of the contests will be proactive. Instead of defending antigay stuff, we are defending equality, so a win will not simply prevent bad law, it will usher in marriage rights—perhaps in Maine, Washington and Maryland.

There are efforts in other states, notably Illinois, where a marriage bill was introduced this week. But New Hampshire remains a dark spot. There, the new GOP majorities in the legislature are trying to repeal marriage rights, and although Governor John Lynch has pledged to veto such a bill, they technically have the votes to override if you just count Republicans and Democrats. Popular opinion in the state is against repeal, and I wonder whether conservatives really have the stomach for this odious enterprise. I’m somewhat encouraged that no vote has yet to be scheduled.

Is that it? I suppose I should mention that Love Honor Cherish has decided not to put a Prop 8 repeal on the 2012 ballot in California after all. Someone’s been drinking their smart juice over there.
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Tony Balony

Here’s something. A group of clergy led by Our Gay Bishop, Gene Robinson, held a news conference demanding that MSNBC stop treating Tony Perkins like just another conservative pundit. Perkins, as you probably know, is head of the Family Research Council, a virulently antigay operation that has been designated a “hate group” by the watchdogs at Southern Poverty Law Center.

Nonetheless, as MSNBC fans like myself have seen, Mr. Perkins routinely pops up on guest panels to expound about the news of the day, particularly social issues and gay rights. He comes off as a regular sounding rightwing analyst, wisely disguising the extent of his hostility towards gay men and women. It’s galling to hear Chris Mathews or whoever end the session with something like “Thanks Tony, as always, we appreciate your insights.” What next? Bernie Madoff on financial regulation?

Hey, I have no problem with MSNBC inviting Tony Perkins, Pat Robertson or James Dobson on the air. Fine. Just tell the viewers who they are, that’s all. Tony may manage to sound reasonable, but you know what? His number two at FRC, Peter Sprigg, has no compunction against saying that homosexuality should be outlawed, or insisting that repealing Don’t Ask Don’t Tell will lead to sexual abuse by openly gay soldiers.

By the way, in the course of my brief survey of the FRC just then, I did see that Chris Matthews raked Peter Sprigg over the coals when Sprigg turned up on Hardball. So why give Tony a pass?
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A Rose By Any Other Name Is Not A Rose

Have you noticed, by the way, that there are fewer and fewer people willing to make a direct public attack on gay men and women? Like Tony, and lately Rick Santorum, conservatives are more comfortable talking about family and children and public policy in general. Many of them now say gay couples should be left alone, or given some rights--- just as long as society encourages the classic model of one man, one woman and two and half kids.

We no longer hear the words “abomination,” “perversion,” “sick,” or “immoral.” Indeed, Wednesday’s New York Times poll indicates that 50 percent of Republicans believe gay men and women deserve marriage rights (17 percent) or civil unions (33 percent). Overall, 39 percent of Americans support marriage, and another 24 percent support civil unions, leaving just 32 percent holding the position that gay couples deserve nada. Another five percent, inexplicably, have “no opinion” on the subject.

This is an incredible ten-year trend in our favor, and here’s the key feature of these numbers. All those people who support civil unions but not marriage will eventually have to pick a side. But they have already moved from “no rights” to “civil unions.” If forced to get off the fence, they’re less likely to move back to “no rights,” far more likely to move over to “marriage.”

And make no mistake, they will be forced to get off the fence. As narrow as it was, last week’s Prop 8 opinion took a crucial step forward by ruling that the word “marriage” carries constitutional weight. The idea of a compromise that offers “all the rights of marriage” under another name has become an oxymoron. Because “all the rights of marriage” include the word “marriage.” In fact, the word itself is the most important part of the package, the dividing line between equality and something less.
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Maryland Update

Here’s a late breaking bit of news on the Maryland marriage situation. Normally, when I realize I’m behind the news curve before I’ve finished this column, I just rewrite the offending item to hide this mild incompetence from readers.

It makes more sense to tell you the development. It seems as if a key swing vote in the house has decided not to support marriage, but to favor civil unions instead. I had originally written that Maryland’s house was going to vote on marriage today, Wednesday, because I thought I had seen that somewhere. When I couldn’t confirm it, I cleverly changed my wording to “in the next few days.”

Now, I read that the vote was changed from Wednesday to Thursday, perhaps because of this defection. I know the vote was supposed to be close, so the lost swing vote doesn’t help. There will also be an attempt to amend the bill to switch marriage to civil unions. Marriage activists expect their supporters, obviously, to defeat the amendment and move on to the real deal.
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Ann’s column is available every week on sfbaytimes.com. You can reach her at arostow@aol.com.