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Equality news round-up: the future of marriage equality, and more

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By Scottie Thomaston

- The New York Times discusses marriage equality, noting that ““The die is cast on this issue,” said Steve Schmidt, who advised the presidential campaigns of Senator John McCain and George W. Bush and has for years urged Republicans to accept same-sex marriage.”

- Metro Weekly talked to gay conservatives.

- From Think Progress, the National Organization for Marriage claims it is optimistic.

- Rep. Jared Polis will push for ENDA.

- For the first time, a majority of Fortune 500 companies have nondiscrimination policies that protect gender identity.

- Linda Greenhouse suggests that the four initiatives on election day related to marriage equality might affect the Supreme Court’s handling of Prop 8 and DOMA.

74 Comments Leave a Comment

  • 1. RepublicanLutz  |  November 16, 2012 at 7:43 am

    Has NOM ever not claimed to be optimistic? I know they have to keep up the act for the sake of donations, but geez, there could be marriage in all fifty states and they'd say that it's just a bump in the road.

  • 2. RepublicanLutz  |  November 16, 2012 at 7:45 am

    Has NOM ever not claimed to be optimistic? I know they have to keep up the act for the sake of donations, but geez, marriage could exist in all fifty states and they’d say it’s just a bump in the road.

  • 3. Reformed  |  November 16, 2012 at 10:34 am

    Every election and ballot is a crucial tipping point, until they lose. The "fight" has "just begun" in Brian Brown's foggy mind how many times now? Hey, question, where have all the "matching fund" campaigns gone?

  • 4. John  |  November 16, 2012 at 11:40 am

    If the US Supreme Court upholds Prop 8, I seriously doubt it would be legal for the California legislature to place marriage equality back on the ballot. Since this Constitutional Amendment was put forth by the voters.

  • 5. Stefan  |  November 16, 2012 at 11:42 am

    The California Constitution says that an amendment can be brought forth either through a signature drive or through the legislature.

  • 6. Anthony  |  November 16, 2012 at 12:27 pm

    Via the courts or the ballot box, Prop 8 is going down soon. I hope the Supreme Court just denies cert early next month though, because I REALLY do not want to go through another campaign here. Way too emotional and these campaigns bring out the worst in people.

  • 7. John  |  November 16, 2012 at 12:49 pm

    Stefan clearly you don't understand. California Supreme Court has given undo amount of power to the people and the initiative process. Given that Proposition 8 was done through a "signature drive" and voted by the people I can forsee the California Supreme Court placing an injunction forbiding the Secretary of State from placing this on the ballot. Of course it would be different story if the US Supreme Court strikes down Proposition 8. I want Proposition 8 to away as much as you do but you have to look outside of the box.

  • 8. Jamie  |  November 16, 2012 at 1:20 pm

    No. The California Supreme Court has said no such thing. Further, the people will still be allowed to vote on the constitutional amendment to repeal Proposition 8, whether it is put on the ballot by legislators or by a petition drive.

  • 9. Kevin  |  November 16, 2012 at 1:27 pm

    Prop 8 has been a battle and I hope it gets continued for a full review. I never understood the 9th Circuit's holding that equal protection only applies when the right exists. I must have misunderstood Thomas Jefferson and the Romer v. Evans case on equal proection because I thought it applied to laws whether they were prospective too ( like in the 30 some odd states with discriminatory laws on the books). Of course it would be like another Brown v. Board of Education but I actually think gay rights are that important.

  • 10. DJinPas  |  November 16, 2012 at 1:51 pm

    Stefan and Jamie are correct. The power to amend the Constitution lies with the people, and they can undo the amendment if they wish. We could add it in and take it out over and over again if we wanted to.

  • 11. RepublicanLutz  |  November 16, 2012 at 2:37 pm

    I am curious why you think the California supreme court's decision upholding Prop 8 gave undo power to the people. The basic civics and legal concepts behind the decision were sound. I knew that approach would fail, but understood the reason why that route was attempted.

    I know the wait is hard, but I think that both the state and the federal courts have gotten this string of suits right. I do find the federal district court decision to be more convincing than the appellate court's though. (Of course, I also think that Romer could have been written a bit better as well.)

  • 12. Rick Jacobs  |  November 16, 2012 at 2:52 pm

    Just to add a little fuel to this, first I think that Prop. 8 will die through the judicial process. However, if it does not, the California state legislature may indeed put a ballot measure on the ballot with a 2/3 vote of both houses. So they could put a ballot measure to amend our constitution on the ballot. I suggested this as a possibility as soon as it became apparent that Democrats won 2/3 in both houses.

    While both Gov. Brown and Speaker John Perez said they'd wait to see what happens with the courts before commenting, President Pro Tem Darrell Steinberg has twice said he's open to this. Imagine the power of this being put on the ballot by the government of California. It becomes an institutional imperative, not just part of the LGBT community's business.

    As Anthony says, Prop. 8 is toast one way or another.

    The only bad news is that Frank Schubert will continue to make money losing, but I guess if the NOMsters want to keep paying him for his villas, what the heck?

  • 13. Johan  |  November 16, 2012 at 3:21 pm

    In all the speculation about the elections influencing how SCOTUS will deal with Prop. 8, I don't think I've seen the following reasoning:
    SCOTUS will take the Prop 8 case and will uphold it on narrow grounds, BECAUSE the tide has turned and the justices will want to let the process play itself out the democratic way at the ballot box, which everybody now seems to expect we will win.

  • 14. Bill S.  |  November 16, 2012 at 3:37 pm

    This would unfortunately signal a 5–4 decision, as 4 votes are required to grant cert. This would mean that Roberts would join Alito, Scalia, and Thomas in wanting to hear the case with the intent of overturning the 9th Circuit's decision. The Supreme Court doesn't vote to hear a case with the intent of upholding the lower court's decision as-is, the only exception being if there is a circuit split on the same issue, which there isn't here.

  • 15. RepublicanLutz  |  November 16, 2012 at 4:27 pm

    Taking the Prop 8 case would probably be a sign of an impending 5-4, but I can't say that the only exception is a circuit split. That is usually the case, yes, but there have been cases where the Court granted cert where the result was overwhelmingly to affirm and no circuit split existed. (c) of Rule 10 allows for cases without a circuit split or conflict between a lower court and the Supreme Court if a lower court has decided a very important question of federal law that has not yet been addressed by the SCOTUS.

  • 16. Kevin  |  November 16, 2012 at 4:38 pm

    This is both procedurally and legally incorrect. The rationale for deferring to constitutional amendments enacted through the initiative process is that once people have exercised their democratic right to vote a proposition up or down, that will ought to be respected. The results of ballot initiatives are not diminished by the means by which the proposition was put there because the people themselves still need to vote on it. Furthermore, our lawmakers in Sacramento are not insulated from the democratic process, they are our democratically elected representatives; and in our system of representative democracy, their vote does represent the will, although an attenuated will, of the people who elected them.

    As to your other point, an injunction is an extraordinary remedy and there is a 0% chance that any court in California would issue one on the facts as you describe them. No California court sitting in equity will enjoin the SoS from publishing a lawfully proposed constitutional amendment onto the ballot.

  • 17. Kevin  |  November 16, 2012 at 4:48 pm

    I wouldn't put much stock in this. Although there's ample evidence to suggest that Prop 8 would not have passed today, this is far from guaranteed. The winds of politics are capricious and variable. There may be an exceptionally strong Republican candidate that year. There may be large scale democratic scandals. Or Hillary Clinton might run, and Prop 8 might be handily struck at the ballot box. Judges and Justices are not accustomed to ruling on the basis of what might or might not occur in the future when they have a solid, and exceptionally developed, evidentiary record in front of them.

  • 18. John  |  November 16, 2012 at 5:37 pm

    Clearly all are too dumb to understand.

  • 19. Kevin  |  November 16, 2012 at 5:59 pm

    No, I understand exactly. I am just telling you that you're wrong.

  • 20. RepublicanLutz  |  November 16, 2012 at 6:14 pm

    Nah, I don't think we are being the dumb ones here.

  • 21. Steven  |  November 16, 2012 at 6:28 pm

    I think Justice Roberts will be on our side, I hope………… Remember he denied the injunction to stop marriage equality law in DC, and in January 2010, the court denied the appeal..

  • 22. davep  |  November 16, 2012 at 6:33 pm

    Nobody has attacked you personally, yet you have directed personal insults at three different commenters in this thread just in the past hour. What are you trying to accomplish?

  • 23. Eric  |  November 16, 2012 at 6:57 pm

    Even if Prop 8 is found unconstitutional, it will still appear in the Constitution, until either another initiative or constitutional convention removes it.

    An initiative can be initiated either by the people or by the legislature.

  • 24. Eric  |  November 16, 2012 at 7:00 pm

    John, your position is as articulate as those that defended Prop 8.

  • 25. Eric  |  November 16, 2012 at 7:02 pm

    Even if Prop 8 is found unconstitutional, the only way to remove the text from the Constitution is via another initiative.

  • 26. Eric  |  November 16, 2012 at 7:04 pm

    Letting people's fundamental right to marry play out at the ballot box, is unconstitutional (see 14th Amendment).

  • 27. _BK_  |  November 17, 2012 at 5:59 am

    Here's a tip: Don't like it? Leave. But you're always welcome provided you stay respectful. :)

  • 28. John_B_in_DC  |  November 17, 2012 at 7:51 am

    There's no good debate here because what you're claiming is factually incorrect, as has been pointed out by numerous other people. If you think they've misunderstood you then please clarify what you're trying to say. But abusing them for telling you you're wrong doesn't make you right.

  • 29. John  |  November 17, 2012 at 8:53 am

    Deal with it. I will continue to say what I wish. Everyone on this blog are so narrow minded, are no different than the Prop 8 supporters way of thinking.

  • 30. Jamie  |  November 17, 2012 at 10:02 am

    The 9th circuit didn't say that it was because the right existed. They said it was because a minority was targeted for different treatment due to the facts of the case.

  • 31. Jamie  |  November 17, 2012 at 10:05 am

    No. That is the case in some states, but not in California.

  • 32. Jamie  |  November 17, 2012 at 10:14 am

    I think Roberts is going is at least going to be turned by the rhetoric from the conservative judges, and not want to be part of any decision that they might sign. I think he might be supportive of striking Prop 8.

    Little has been said about this, but striking Prop 8 does not mean that the people of California can not continue to "protect marriage". They could ban all infertile couples from marriage, or require the government to only issue civil union licenses. What they can't do is use sexual orientation as a limiting factor in banning people from marriage when there isn't even a rational reason for doing so. Striking prop 8 still leaves many options open, even if they would never be passed, they could be.

  • 33. Jamie  |  November 17, 2012 at 10:15 am

    CatholicVote did ask its followers to go post on pro-gay boards. This is evidently the best they can do.

  • 34. Reformed  |  November 17, 2012 at 10:51 am

    So, if i understand correctly, there are two ways to a constitutional ammendment in california, a 50% plus 1 majority of voters, or a 2/3 majority in both houses. An ammendment originating at that ballot box can only be ammended, changed, or eliminated by another vote at the ballot box?

  • 35. davep  |  November 17, 2012 at 2:10 pm

    Interesting! I did not know that. Thanks Jamie.

  • 36. davep  |  November 17, 2012 at 2:22 pm

    John, during the past four years this site has had MANY really substantial debates on a lot of issues pertaining to Prop 8 and marriage equality in general. And the participants have been able to remain reasonable and mature, even when people had very different views on some very touchy subjects. The result has been a lot of really valuable information shared between a lot of people. I encourage you to act like a grown up and contribute to the discussion without resorting to potty-mouth insults.

  • 37. davep  |  November 17, 2012 at 3:05 pm

    …. and to answer your initial comment, which said: "If the US Supreme Court upholds Prop 8, I seriously doubt it would be legal for the California legislature to place marriage equality back on the ballot. Since this Constitutional Amendment was put forth by the voters."….. Even if SCOTUS decides that Prop 8 is constitutional, the people of California are free to put another measure on the ballot that would remove Prop 8 from the California State Constitution, using the exact same process that was used to put it in the State Constitution in the first place. In fact, this was seriously considered in the months prior the 2010 election. But if we un-do Prop 8 using the initiative process before the Court rules in our favor, the Prop 8 trial would come to an immediate halt with no final decision because the plaintiffs would no longer be suffering any 'particularized harm'. This would leave open the possibility, however remote, of some future conservative majority putting ANOTHER Prop 8 back into the state constitution AGAIN. It would be better in the long run to let the courts say once and for all "No, it is unconstitutional to enact things like Prop 8" so future attempts at things like Prop 8 won't be allowed to happen.

  • 38. davep  |  November 17, 2012 at 5:17 pm

    Look again. I said that the people of California could put another measure on the ballot to un-do Prop 8, using the exact same process that the people used to put it on the ballot and into the state Constitution in the first place. Why all the insults? What are you trying to accomplish? Is this really your idea of a "debate"?

  • 39. davep  |  November 17, 2012 at 5:29 pm

    1) I was not 'putting words in your mouth', that was a direct copy-and-paste quote from your initial comment at the start of the thread. And 2) You seem to believe that if SCOTUS says Prop 8 is Constitutional, this means there is no way to ever take it back out of the state Constitution. That simply is not true. Such a ruling would only mean that it would be OK to leave it in the state Constitution, and it would also be OK to take it back out of the state Constitution. Understand?

  • 40. davep  |  November 17, 2012 at 5:53 pm

    Hmm… not doing so well with that "act like a grown up" idea just yet. Keep trying John! You can do it!

  • 41. Rich  |  November 17, 2012 at 8:58 pm

    Thank you davep for your reasoned commentary which I find most enlightening. And thank you, as well, for your patience.

  • 42. Jacob Combs  |  November 17, 2012 at 9:05 pm

    This is Jacob, one of the site's moderators. P8TT does not condone the use of wanton, foul language, especially when it is hurtful in nature. The offending comments have been deleted, and this serves as a warning to desist. In accordance with the site's policy, anyone who ignores a warning they are given will be banned from the site. Thank you.

  • 43. datdude  |  November 17, 2012 at 9:44 pm

    I think John may have been one of the ones who did defend Prop 8. Hence his clear disdain about how the tides are in fact turning pro gay.

  • 44. datdude  |  November 17, 2012 at 9:53 pm

    Just remember guys, catholic and conservative trolls roam and troll our blogs and sites. and very often too. They play devil's advocate and throw in strawman arguments against our rights, in really coy and subtle manners, all while claiming to be a member of our community. Their point is to make a complacent LGBT out of us who rolls over and accepts our lack of equality. They realize the tides are turning so their next tactic is to get at gay people and make gays "think twice" about all this equality stuff. It sadly sometimes works, but don't allow it too. If someone doesn't pass the sniff test, chances are, they are posting with an agenda, and for the other side.

  • 45. davep  |  November 17, 2012 at 10:36 pm

    You're welcome. And special thanks to the admins for cleaning up the 'troll poop'.

  • 46. John  |  November 17, 2012 at 10:51 pm

    Oh yes! That's it! You got me! Boogie man conservative! Give me a break! Just because I don't agree with some comments on here doesn't make me non-supporter. Again narrow minded fucktards!

  • 47. davep  |  November 17, 2012 at 11:10 pm

    You posted a factually incorrect gloom-and-doom remark implying that the legislature would never be able to un-do Prop 8 through the initiative process if SCOTUS ruled Prop 8 constitutional, and when several people replied with the correct information, instead of saying 'wow, that's good news!' you threw a temper tantrum as if you were frustrated by this news. That, and several other things you said, would indicate that you are indeed not a 'supporter'. Thanks for playing.

  • 48. Leo  |  November 18, 2012 at 12:37 am

    Not exactly. There are two ways to place an amendment on the ballot: signatures of 8% voters or a 2/3 majority of both houses. Either way requires a 50%+1 majority of voters to pass. There is no way to pass an amendment without a popular vote.

  • 49. John  |  November 18, 2012 at 9:54 am

    Let me get this straight I have to agree with everything that is said on here? You are no different than the supporters of Prop 8. You can't view things from all avenues, its like you're in la la land and can only hear the avenues that is in favor of archiving marriage equality more easily. I stated MY opinion that I think it would be unconstitutional if the California Legislature voted to put this to the ballot for the people to ratify or reject; if the US Supreme Court upheld Prop 8.

    Prop 8 will fall sooner or later. And I think the US Supreme Court will refuse to hear the case. Do you feel better now little man, now that I said something that you want to hear? ;)

  • 50. _BK_  |  November 18, 2012 at 10:55 am

    Trolling Mr. Troll loves trolling. :)

  • 51. Bob  |  November 18, 2012 at 11:28 am

    wow,,, more heated Robust discussions about prop8,,,,, FIRED UP!!!!! let's go
    http://www.edgeboston.com/index.php?ch=news&s

  • 52. davep  |  November 18, 2012 at 12:37 pm

    You can have an opinion about whether or not you LIKE a fact, but you cannot have an 'opinion' about whether a fact is true or not. It is either true or false. And it is false to say that Prop 8 cannot be removed from the state Constitution through the ballot initiative process, regardless if that process is started by the legislature or the public.

    The only question in these trials is whether it was constitutional to ENACT Prop 8. There has never been a question about whether it would be constitutional to REMOVE Prop 8 from the state Constitution. And that is still true even if it were ruled that enacting Prop 8 was constitutional.

  • 53. Straight Ally #3008  |  November 18, 2012 at 4:22 pm

    To lighten things up, maybe, here's a quote I found on a Maine No-on-1 FB page:

    "What happened yesterday is a perfect example of what happens when voters have too much power over their government. activist voters have essentially disregarded government by limiting government power to control their marriage choices. We need MORE government when it comes to marriage, and we need government to prohibit us from marrying people who have the same sex organs as us. This issue should be decided by GOVERNMENT and not unelected voters of the state."

    I've written "darned activist electorate!" in jest before, but WOW, just wow….

  • 54. Straight Supporter  |  November 18, 2012 at 5:49 pm

    When the government does something they don't like: "Let the people vote". When the pople vote a way they don't like: "Let the government take control, not the unelected voters."

  • 55. Jacob Combs  |  November 18, 2012 at 5:52 pm

    Sorry, John–I posted a warning, and you continue to use inappropriate language. Because of that, you're now banned from the site.

  • 56. Straight Dave  |  November 18, 2012 at 7:29 pm

    Jacob,
    Though I'm not a big fan of banning, John certainly did his best to stretch the boundaries. In this case, I agree with your decision. It was well earned.

    On the other hand, I question the need or desirability of deleting offensive comments. Their presence can serve as a useful reference point for what is not acceptable. It also allows the community to make their own judgments about what has crossed the line. As in the courts, decisions are often seen as more fair if the evidence is made public. At least the process is perceived as being fair. Deleting anything, even under the best of motives, only serves to create uncertainty or reduce understanding.

    I support you and the other moderators trying to keep this a sane and respectful environment. John can own his words. You can own your decisions. And the rest of us will survive just fine. Our brains won't turn to stone over some nasty posts being left intact. Just stopping them should be sufficient.

    Thank you for your many valuable contributions to this site.

  • 57. MightyAcorn  |  November 18, 2012 at 8:07 pm

    I respectfully disagree with Straight Dave about deleting offensive comments. Trolls get off on seeing their own poop, as it were, and deleting it denies them the reward they seek so they tend to go elsewhere. John had his chance, he chose to continue being a jerk, it's tiresome and upsetting to be verbally abused, I don't agree that leaving his posts serve any positive purpose. We tried the unmoderated thing befor; I believe it's better now. Thanks for ditching the troll, Jason.

  • 58. John  |  November 18, 2012 at 8:24 pm

    You think so? ;)

  • 59. John  |  November 18, 2012 at 8:25 pm

    I never said the public couldn't do it. I merely stated my opinion that the legislature couldn't start that process. Get over it already. My opinion.

  • 60. John  |  November 18, 2012 at 8:31 pm

    So you banned me huh? ;) lol

  • 61. JAG Officer  |  November 19, 2012 at 6:34 am

    As a lawyer in California I can assure you that you are incorrect.

  • 62. JAG Officer  |  November 19, 2012 at 6:39 am

    Ok well you are incorrect. As a lawyer in California I can tell you that you are incorrect. You can not have an opinion on something that has an answer. Constitutional amendements can be brought by the legislature or the people and will not be blocked because a previous one was approved. The end result for both routes is the same: the people have to vote to approve or not. This has nothing to do with being narrow minded it has to do with understanding the law…

  • 63. Straight Dave  |  November 19, 2012 at 9:14 am

    Where were these guys when Prop8 was voted on?

  • 64. Straight Dave  |  November 19, 2012 at 9:17 am

    And where were they in ME in 2009(?) when it was the state govt that passed marriage equality? I should have realized they abandoned logic years ago, but I'm still surprised by how ludicrous they can sound and not realize it.

  • 65. Johnny  |  November 19, 2012 at 7:26 pm

    So because you're a lawyer everything you say is facts? Please! Lol ;)

  • 66. John D  |  November 19, 2012 at 9:24 pm

    The point here is that a constitutional amendment can only be removed by a vote of the people. That vote can be triggered either by the initiative process or by the legislature passing a question to the voters.

  • 67. Mike in Baltimore  |  November 20, 2012 at 3:56 am

    Or the judiciary can remove it by stating it violates the US Constitution.

  • 68. Mike in Maryland  |  November 20, 2012 at 4:29 am

    Dave,

    When they are so mentally deranged, they CAN say the darnd'st things (just like kids, VBG).

  • 69. Straight Dave  |  November 20, 2012 at 7:40 am

    I still think it was a parody, perhaps by an LGBT "anti-troll". Mentally deranged people could not have put together such a perfectly structured (and vulnerable) "argument". It's not just a typical rant…..way too polished.

    and a great parody it is, too!

  • 70. SHOES THROWER  |  November 20, 2012 at 8:57 am

    With a two-thirds vote, they could do so. See Art. 18, Sec. 1, Cal. Constitution

  • 71. SHOES THROWER  |  November 20, 2012 at 9:01 am

    All laws that make classifications target a minority for different treatment, whether beneficial or baneful. The issue then is whether such differential treatment is permissible.

  • 72. SHOES THROWER  |  November 20, 2012 at 9:10 am

    Technically, it is not removed, but superseded. Article II Sec. 12A, which imposes term limits on U.S. House members elected from Oklahoma, is part of the state's constitution. It is superseded by Article I of the U.S. Constitution, as interpreted by the Supreme Court in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) But Art. II, Sec. 12A, while superseded, will remain part of the Oklahoma Constitution unless it is repealed.

  • 73. Eric  |  November 20, 2012 at 9:34 am

    Jamie, that's very interesting, I did not know that that was the case in California. Do you have a reference that would provide more information on the process for removing unconstitutional sections from the California Constitution?

  • 74. Mike in Baltimore  |  November 20, 2012 at 6:28 pm

    This doesn't apply to Prop H8, but does apply to the DOMA cases. The First Circuit and the Second Circuit have ruled that DOMA is unConstitutional. That means it is Constitutional until ruled otherwise in other circuits.

    Yet DOMA is a Federal law (aka national). It will be at least somewhat difficult to uphold DOMA in most states, and not in others. It would not be unusual for a person in NY state, for example, (Second Circuit) to also own property in New Jersey and/or Pennsylvania (Third Circuit).

    Thus, in effect, there is a Circuit split in the case of DOMA, even if there is not one in actuality.

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