March 24, 2009
This is more interesting — albeit not in a good way — than it might appear at first glance. I’ve added some background information about the initiative process I myself hadn’t fully digested, which has led me to understand why the court (lousy attitudes and personal agendas aside) may not be able to overturn Proposition 8, even if it wanted to. It’s the system, folks, set up by long-dead idiots who crafted the ridiculous rules for the state’s much-abused “direct initiative process,” and allowed to stand by we who never fully realized until now how these arbitrary rules were being exploited to the max by the slick characters who regularly buy our elections for their own nefarious purposes.
Prop 8 will stand. Not because Joyce Kennard might hate our guts, but because it must stand under The Rules.
Enough about that. You’ll see exactly what I’m talking about when you get to it.
Here’s my re-cap of last night’s call. I haven’t listened to the audio since; this is all from my notes taken while listening.
Start: 7:03 p.m.
Operator/moderator says that at first, all callers will be in listen-only mode; later, the lines will open for live questions.
Rick Jacobs, Courage Campaign: Opens with thank-you’s to AG Brown. Says this is just one of a series of conference calls sponsored by the Courage Campaign; runs down the list of some other high-profile people CC has hosted. Honored to have Jerry talk about Proposition 8. “Having said that we’re honored to have the Attorney General, I still want to say a few words about him…” Runs down Brown’s long list of achievements and elected positions, goes into Jerry’s background (Yale Law School, working with Mother Teresa, L.A. Community College Board, Secretary of State, Governor, Mayor of Oakland, and now AG). Mentions that because Brown was elected governor before term limits were imposed, he’s eligible to run again. Brown has “never been afraid to take on a challenge.”
Makes “procedural notes”; first, a few minutes from Brown on Prop 8, then on to email questions and live questions. Doesn’t mention how many people listening in, but says this is “the most popular call we’ve ever had.”
Jerry Brown, California Attorney General: Thanks… Goes into Prop 8 right off the bat; says “the closest thing we’ve ever had in the Attorney General’s office” to Prop 8 is Proposition 14, which overturned the Rumford Act (California’s fair housing law) in 1964.
Sapph: Prop 14 passed, thereby giving property sellers and lessors the “right” to discriminate against anyone they wanted. The California Supreme Court overturned Prop 14 (on federal grounds/as a violation of equal protection). While important, the eventual passage of federal fair housing law (in 1968) superseded this and any/all other state decisions… which is why you don’t hear much about the Rumford Act these days.
JB: Prop 14, which was “overwhelmingly popular,” was “a case where constitutional provisions trumped popular will.” Prop 8 is different, “but not really different”; the “general question” is: “When does the popular vote prevail, and when does the constitution prevail when there’s a conflict?”
Says he himself “learned more about it” (this question) after Prop 8 passed. “What’s important to realize is that the right of initiative was put on the ballot by the [state] legislature in 1912, 1913… You have to go back to the beginning, in 1849, and [in the] subsequent constitutional convention where people approved the [state] constitution.”
Mentions Article 1 of the California constitution, which specifies the phrase “inalienable rights.”
Explains that Californians “get the right to amend the constitution by simple majority vote,” and gets into the rules for putting an initiative on the ballot.
Sapph: Before continuing, here’s the quickest, easiest way to understand what JB talks about next; from the California Secretary of State:
“California uses the direct initiative process, which enables voters to bypass the Legislature and have an issue of concern put directly on the ballot for voter approval or rejection. There are two types of initiatives that can be placed on the ballot: 1) statute revision, which requires signatures equal to five percent of the total votes cast for Governor in the preceding gubernatorial election, and 2) constitutional amendment, which requires signatures equal to eight percent of the Governor’s total vote in the preceding gubernatorial election.”
JB: Talks about the 8% rule, and how all you need to pass an initiative is 50% plus one vote.
Says Prop 8 is “unusual”; the wording of Prop 8 is identical to that of Prop 22 — but, because Prop 22 was put on the ballot by [signatures equal to only 5% of the previous gubernatorial votes], Prop 22 was a statute revision [and not a constitutional amendment].
Sapph: In other words, if Prop 8 was put on the ballot by “signatures equal to eight percent of the Governor’s total vote in the preceding gubernatorial election,” Prop 8 was already defined as an amendment from the outset — which explains why JB’s office argued that Prop 8 is not a revision. (Don’t you wish someone among the gay “leadership” had explained all this a long time ago? Don’t you wish someone had admitted that the “revision versus amendment” argument was not going to fly, and this was the reason? As hard a pill as this is to swallow, I certainly wish someone on “our side” had come clean about this, and scuttled the whole pointless argument. “Our” lawyers should have argued “our” case on federal grounds, specifically equal protection. Too, at least that way, we would have had an opening for appeal to SCOTUS.)
The bottom line: All arguments about whether Prop 8 is an amendment or a revision are moot, and futile… again, *IF* the signatures reached 8%. If I had caught this at the moment Brown was talking about it (which I did not; the full impact didn’t hit me until today), I would have asked the two most obvious questions: 1) How can we be certain the initial petition signatures reached that magical 8% point, when California does not allow public scrutiny of signatures on initiative petitions? 2) How do we know all the people who signed the Proposition 8 petition knew what they were signing… or even signed it at all?
Never forget what happened in Massachusetts — and how we would never have known about the petition fraud there if Massachusetts blocked public scrutiny of the signatures… the way California does.
JB: “It’s important to realize the word ‘marriage’ is not in Article 1″ of the California constitution. However, the California court ruled that “same-sex couples should not be excluded from a fundamental right unless there was a ‘compelling reason’” to exclude them — and the court found no “compelling reason.”
“So, in effect, last May [the court] by a 4-3 decision ruled that this fundamental liberty was available to same-sex couples. Then Proposition 8 gets put on the ballot [and] passes by 52%.” So the question is: Should an amendment be treated differently than a statute? “Certain core liberties can’t [just] be swept away” by a popular vote.
“I know this argument was controversial, but [we] have to put restraints on the majority — that’s what all western nations do; [voters are] curbed by the specification of these core liberties. That’s why — in the old language of the 19th century — [these are] called ‘inalienable rights’ — [I know] some judges had trouble with that word &mdash’ [but] we felt the court had already ruled… [This was not just about] same-sex marriage — we’re talking about a core value called ‘marriage.’ That’s the way I saw it.
“Now, another interpretation on whether or not [an] attempt to take away a right [had to do with] the death penalty. In my office, my lawyers felt: ‘Let’s go to the heart of the matter.’”
Without mentioning Chris Kreuger by name, JB admits Kreuger’s performance at the March 5th hearing was less than optimal: “The presentation wasn’t all that I wanted.” JB thought about making the argument himself, but by tradition the Attorney General doesn’t do that, and so… he didn’t.
“The judges were certainly on the attack, and our man didn’t fight back as well as I wanted.”
In any case, by the time of a hearing like the one on March 5th, the judges have already drawn up a “conference memo” (their minds are already made up — implying that Kreuger’s miserable performance was of little consequence).
“I think [our argument] was put well before them, [but the judges] didn’t seem to like the idea of ‘revision,’ or [the idea of] fundamental liberty.
“The case that stood in the way of [the ‘revision’ argument], and, I think, that gives the court trouble” is the death penalty case, “while Reagan was governor. [It] violated the Eight Amendment [of the U.S. Constitution]. Then people voted in restoration of the death penalty, then the court upheld that amendment. I think the [Prop 8] court saw the spectre of that death penalty vote. Wouldn’t this amendment [Prop 8] have revised this ruling [of the California court the previous May]?”
RJ: “It’s a sad day indeed that we’re even arguing our rights… that a majority of any size could take fundamental rights away from people at the ballot box.”
JB: Mentions Kenneth Starr arguing that the people could even vote away their own right to free speech if they wanted. “Well, the times can change, and in difficult periods, who knows what the court could do? So it is a sad day if this court abandons its role in protecting fundamental liberties.”
Sapph: At this point, the lines are opened to live questions. For a moment, there are no questions at all — not even from me, as JB had already answered the two questions I had for him. Half a second later, another question occurs to me (how our existing marriages could possibly remain “valid” if Prop 8 deemed them not “recognized”) and I hit the * key to “raise my hand” on the call — but so did another forty people, so I never got to ask it.
First email question, from Keith in San Diego, whose own marriage is among those in jeopardy: Keith and his husband were easily able to change their names (on drivers’ licenses, credit cards, etc.); all agencies involved merely requested a copy of their marriage license. Question is basically, now what?
JB: Doesn’t think existing marriages will be voided. “If [they were], that would be a tragedy.” Says he’s “very confident” the 18,000 existing marriages will remain valid — and the next battle in all this is to “get rid of the federal Defense of Marriage Act.” Reflects on Prop 6, the Briggs initiative, and (rightly) calls it a “witch hunt.”
Next question asks JB’s opinion on the “role of [anti-Prop 8] protests.”
JB: “One has to be careful about the nature of protests.” Emphasize “the affirmative, the affirmation of love… the humanness of it… the familiarity… That’s powerful — but I think one has to be careful” because the public is still getting its “education through the media.”
Live caller Mike: Says he has no personal stake in this issue, but sees Prop 8 “as a fundamental perversion of an initiative process… a symptom of the [state] legislature not doing the job we pay them to do…”
Sapph thinks: On this issue, the legislature did do the job we pay them to do — twice — but Schwarzenegger shot them down with a veto — twice. Nevertheless…
Live caller Mike: “If this goes the wrong way in [the California Supreme Court], what is your opinion about a constitutional convention to fix some of the basic problems with the state constitution?”
JB: The problem is “how to guard fundamental liberties from 51% hostile votes.” Thinks a constitutional convention would be “hard to pull off, because the legislature sets the rules on who gets to vote — and they have a hard time making up their minds on” any but the most non-controversial issues.
“I’ve not given up on the court as the guardian of the constitution, but it’s improbable that leg will kick in.”
To get a constitutional convention happening, you’d “need the same majority [as you would] to defeat Prop 8. I think this is a contested area. [It strikes me] as easier to repeal Prop 8 than it might be to get some more comprehensive constitutional provision [passed].”
Live caller Ruben, age 52: Brings up “the hypocrisy of the Mormon church — they were very blatant in their discriminatory comments and funding of Prop 8.” Asks JB if anyone is looking into removing the Mormons’ tax-exempt status.
JB: If we see evidence of [any] church engaging in political activity, we’ll certainly take action… [evidence of] people acting in ways not tied directly to the church… We’d like to hear about it.”
RJ: Mentions (without naming Fred) Fred Karger’s complaint to the Fair Political Practices Committee.
JB: “That would be the place to present the evidence,” although the Attorney General’s office does have a Charitable Trust Division as well. “If [a] church acts outside permissible mandates, we will look into that.”
Live caller Weaver from Santa Rosa: “As one of the 18,000… my concern, of which I have many, [is]: What if the marriages stand, but none go further from here? What’s the next step?”
JB: Existing marriages will “remain recognized in California. There is [also] Massachusetts — and Connecticut, Vermont, [and] New Jersey are all on deck to pass marriage laws. If that happens, you’re getting pillars of support, [and] the next step is the federal repeal of [DoMA]. So I’d say that would be the next move: federal recognition and protections.”
RJ: “Whatever happens next” the next step for everyone is a system of “sophisticated research… working together to win [our] rights back. … [This] fight’s not over until we win federal rights.”
JB: Agrees; first step is “federal recognition for marriages in states that have them.”
RJ: Stops to remind people to follow Jerry on Twitter: twitter.com/JerryBrown2010
JB: Also see Facebook page. There are a lot of Jerry Browns on Facebook, so “look for my picture.”
Live caller Jen: “Is anyone putting in a ballot measure for the next election?”
JB: Doesn’t “know of an immmediate initiative.”
RJ: Affirms there is indeed [”an immediate initiative”]. “What we’ll have to do — the grassroots — what’s going to have to happen” is research: “Share research, make the decision when to file, whether [or not] for 2010… Then we have to win. But it’s all gonna have to be us.”
JB: Says you need to listen to your gut feeling: “When you feel you have enough base,” that’s when you file. Prop 22 was identical in wording to Prop 8, and Prop 22 passed with 61%, while Prop 8 passed with 52.3%; “that’s a big move in a short period of time.” The question is: “Is 2010 the right time, or later?” Needs to be “a consensus decision.”
RJ: “The key work we have to do is protest, get out and change hearts and minds.” The Courage Campaign “is asking people to give three hours a month…”
Live caller Emily Levy of Velvet Revolution: Talks about Diebold voting machines, and how it’s been established that “illegal software used last fall allowed votes to be deleted, even on Election Day.” These irregularities call into question whether or not Prop 8 actually passed in the first place; is there any investigation into this going on?
JB: I’ve not heard it put quite that forcefully, [but] I will be glad to take this up with the Secretary of State. And if I see any credible evidence—”
EL: Asks how to get that evidence to JB.
JB: Lists office locations. “Just come by and leave it for my attention.”
Live caller Sharon from Marin (where voters voted against Prop 8 by 75%): What’s JB’s opinion on the direction to go in should Prop 8 be upheld — step by step? We need some help.”
JB: Notes “Equality California, Courage Campaign, other grassroots are mobilizing. A phone call” to one of these groups is a first “step in that direction. I think it is a kind of bottom-up thing… neighbor-to-neighbor outreach. It is, really. After a certain number of conversations and encounters, it’s going to go from 52% one way to 52% the other way.”
Live caller Stewart from Santa Monica: “I have more of a remark [than a question]. I listened to the entire proceedings [and] about fell out of my chair when Mr. Starr made that remark about freedom of speech. That was the most disturbing element of this whole argument… I gotta tell you, man, that right there — my hair stood up.”
JB: Seems to agree; says essentially that if Prop 8 is upheld, then the court is basically about saying Article 1 of the state constitution: “It’s gone.”
Live caller Michael from L.A.: Question is twofold: 1) If Prop 8 is upheld, “who has the standing” to bring it to the Supreme Court of the United States? 2) What would be the most salient arguments to use when appealing to SCOTUS?
JB: Prop 8 “was not argued on federal grounds; it was argued on a state constitution.. [so] there’s no recourse, no appeal.”
RJ: Makes last thank-you’s to JB, who “came early and stayed late.” Mentions that audio from tonight’s call will be on the Courage Campaign site. Reminds people that the Saturday after the court hands down its decision (no matter which way it goes) is when we will “meet in the middle” in Fresno.
Asks JB for any “parting words of wisdom.”
JB: Thanks RJ for the opportunity, says: “My only words are: Stick to solidarity, [and] grassroots organizing.” Then plugs Facebook page again.
RJ: Thank-you’s to all listeners, signs off.
End: 7:47 p.m.
Posted by: Sapphocrat
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Filed Under: California, Civil Rights, Democrats, Free Speech, Harvey Milk, LDS/Mormons, Marriage, Proposition 8, Radical Religious Right, Republicans, SCOTUS
January 9, 2009
Asks The Guardian: “Could Gus Van Sant’s Harvey Milk movie have killed off proposition 8?“
We’ve always thought so. I did a lot of private muttering about wishing Milk had been released just a few short weeks earlier, and now, having seen the film, I know it had immeasurable potential for tipping the scales in our balance in a way nothing else could. While I noticed a few teary eyes in the packed-house audience — and while I was certainly moved by many moments in the film — there was only one time the tears flowed freely for me: when word came down that the Briggs Initiative had been defeated. The joy on the screen was palpable, and contagious — but what made me cry was knowing that this this joy, this relief, was lost to us on November 4th.
That said, here’s what Gus Van Sant has to say about his conscious decision to hold back the release of Milk until after the election:
Van Sant has stated that he considered releasing the movie before the election but felt that the issues it addressed were about “more than just one proposition” and that the producers had done enough for the cause by previewing the movie before the vote. “The end decision was not to have the film speaking directly to the election,” he told Filmmaker magazine, “because if it was seen to be just about the election that might take away its chance of having a life after the election.”
Gus, you couldn’t be more wrong — or more selfish.
To the first part of your answer: Proposition 8 was not “just one proposition.” Defeating Proposition 8 was it, Gus, the whole enchilada. With marriage, we have it all. State-recognized marriage confers only a fraction of federally-recognized marriage, but the right to marry in California was the anchor for the nationwide marriage equality movement. Why do you think equality proponents everywhere wanted to maintain our newfound marriage right so badly — and the anti-gays wanted to stop it so badly?
“One proposition” would be Arkansas’ adoption ban — or any other kinship-related issue that would be completely moot if we had full, legal marriage, under which adoption, inheritance rights, taxation, and a host of other single issues would be taken care of in one fell swoop.
To marginalize marriage as “just one proposition” is astoundingly shortsighted.
The second part of your answer, “if [Milk] was seen to be just about the election that might take away its chance of having a life after the election,” smacks of self-interest and plain greed. What was more important to you, Gus — making a change in the world, or making sure your financial interest in a movie was protected?
Not that I think for one minute that you are correct in your assumption that associating Milk with the Proposition 8 battle would have diminished interest in — or monetary returns for — the film (on the contrary, I believe momentum would have been even greater if you had moved up the release), but that’s beside the point. The real question is: Do you, or did you ever, believe in the message of Harvey Milk, or did you make this film just for the money?
Curiously, the interview linked by the Guardian ends:
Van Sant: We decided to straddle the election, to have the opening affect the election and the release be after the election.
Q: That sort of fits Harvey Milk himself, who claimed that his election was about him but also about the larger movement of gay rights.
Van Sant: You could look at it that way. But I think that if Harvey was the decision maker, he would want the film to affect the election.
If you believe that, Gus, then why didn’t you do what Harvey would have done?
As for the rest of us, The Guardian asks:
Was he right? Or could the press attention that Milk received have tipped the vote in the anti-prop-8 camp’s favour had it arrived before 4 November? Did that camp have enough support from Hollywood already? And was it Van Sant’s responsibility as a politicised film-maker to have a greater consideration for real events when negotiating the release of his film?
Posted by: Sapphocrat
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Filed Under: California, Civil Rights, Harvey Milk, LGBT History, Marriage, Milk Movie, Movies, Proposition 8
On September 22, 1975, just 17 days after Charles Manson faithful Lynette “Squeaky” Fromme tried to assassinate President Gerald R. Ford, Sara Jane Moore, volunteer bookkeeper for the Patty Hearst-snatching 
