9th Circuit Rules Prop H8 Unconstitutional!

An animated gif from Babylon 5, a 90's sci-fi TV show, of a maniacally grinning man with very tall hair giggling and tapping his fingertips together in excitement

It will of course be appealed, and I'm not at all certain of SCOTUS doing the right thing on this issue, but it's pretty damn exciting that we're batting 2-for-2 so far!

Also, is it even possible for political orgs to celebrate a victory WITHOUT immediately tacking on a request for more of their supporters' money?  I've so far gotten "YAY VICTORY now give us money plz" emails from AFER, Freedom to Marry, and Courage Campaign, and I'm sure I'll see at least one or two more by the end of the day.  Can't we just enjoy the moment without being milked for more cash?

Bah.  Still going to enjoy the moment.  Prop 8 Trial Tracker has the text of the decision available here, if anyone wants to read it.

The Religious Reich: Without Lies, What Would They Be?

...Just a whole bunch of silence and trousers, that's what.* Via Right Wing Watch (what would I do without you?), comes a clip of some right-wing assholes talking about their strategy for getting SCOTUS to reinstate Prop H8.  In essence, their belief is that if they just bring enough public opinion to bear on their side, the justices will capitulate to the tyranny will of the people.  But really, the best bit is right at the beginning:

The Supreme Court has not, ever, handed down a decision which flew into the face and teeth of a strong moral consensus against it.

Wow, really?  So Brown v Board of Education was totally uncontroversial, with massive public moral consensus on its side, and the National Guard was called in to escort the black students into newly-desegregated schools as an honor guard!  Also, Roe v Wade was and has always been supported by a strong moral consensus, which is why certain segments keep on attacking it and trying to have it overturned.  Oh, and Loving v Virginia was a total no-brainer, despite more than 40 states having anti-miscegenation laws on the books at the time.  No moral consensus against interracial marriage there!  


I mean, really.  This is one of the stupider boldfaced lies I've seen come from the Religious Wrong.  Someone please do correct me if I'm wrong, but as I understand it, the function of SCOTUS is to scrutinize contested laws through a Constitutional lens and decide if the law in question is permissible under the Constitution, yes?  Not to have a popularity contest and say "Well, most people feel strongly against this, so we'll have to rule against it."  The popularity-contest part is the voting which enacts the law; SCOTUS is supposed to stand independent of public opinion and decide pure questions of the Constitutionality of the laws.  Sure, there's a "moral consensus" against same-gender marriage, although it's not such a strong one as they'd like to claim, and its hold has been diminishing considerably with the passage of time.  And with that moral consensus, they won the popularity contest that is voting, and enacted their law.  That part has already been decided.  The question now is not whether it's popular or in step with a "moral consensus", but whether it abides by the strictures of the Constitution.  Which Judge Walker held it did not, and which is the question the 9th Circuit Court and, eventually, SCOTUS will be deciding on, not whether or not there's a "moral consensus" about the issue.


No wonder they're getting all the wrong answers here.  They're asking the wrong questions.



*Gamer joke; from a Zero Punctuation review for Dragon Age in which Yahtzee asked, "What would a Bioware RPG be without text?  Just a whole bunch of silence and trousers, that's what."

To Correct Some Misapprehensions The Right-Wing Seems To Be Laboring Under

PROP H8 HAS BEEN OVERTURNED IN FEDERAL DISTRICT COURT!  

Judge Walker issued a 136-page ruling (available here) declaring that Prop H8 was a violation, separately, of BOTH the due process AND equal protection clauses of the federal Constitution, AND that the claims of the anti-equality side couldn't even stand up to the "rational basis" standard of review, which is the least stringent standard!  Additionally, he set forth a wonderful list of "findings of fact" tearing apart the secular arguments against marriage equality ("findings of fact" in a case are given very heavy weight in appeals to a higher court, while "findings of law" are basically tossed and redone from scratch on appeal, so these findings are a lasting gift to our side).  This is an absolute, unqualified win for the forces of equality in this state and the country.  No word yet (that I've heard) as to whether or not Walker will issue a stay pending appeal, as requested by the anti-equality side.  [EDIT: Walker has issued a temporary stay pending hearings on a longer-term stay]  So far, it seems that Prop H8 has been overturned entirely.  Next step is the 9th Circuit, then after that, SCOTUS.*

It's been highly entertaining, if a bit predictable, watching wingnut heads explode over the decision.  I've been following the coverage on Right Wing Watch (available here; refresh for updates as they come available) and it is every bit as over-the-top and panicky and filled with hateful bile as you might expect.  Some select quotes:

Focus on [Your Own Damn] Family:

Judge Walker’s ruling raises a shocking notion that a single federal judge can nullify the votes of more than 7 million California voters, binding Supreme Court precedent, and several millennia-worth of evidence that children need both a mom and a dad.

Concerned [Self-Hating] Women for America:

Judge Walker’s decision goes far beyond homosexual ‘marriage’ to strike at the heart of our representative democracy. Judge Walker has declared, in effect, that his opinion is supreme and ‘We the People’ are no longer free to govern ourselves.

CWA CA Chapter:

Today Judge Vaughn Walker has chosen to side with political activism over the will of the people. His ruling is slap in the face to the more than seven million Californians who voted to uphold the definition of marriage as it has been understood for millennia.

Family [Discredited] Research Council:

It's time for the far Left to stop insisting that judges redefine our most fundamental social institution and using liberal courts to obtain a political goal they cannot obtain at the ballot box.

Alliance [of Hateful Heteros] Defense Fund:

It’s not radical for more than 7 million Californians to protect marriage as they’ve always known it. What would be radical would be to allow a handful of activists to gut the core of the American democratic system and, in addition, force the entire country to accept a system that intentionally denies children the mom and the dad they deserve.

American [Hetero, Monogamous, Childbearing] Family Association:

This is a tyrannical, abusive and utterly unconstitutional display of judicial arrogance. Judge Walker has turned ‘We the People’ into ‘I the Judge.’ “It’s inexcusable for him to deprive the citizens of California of their right to govern themselves, and cavalierly trash the will of over seven million voters.

Notice a pattern here?  It's all variations on one theme: the Activist! Judge! overturning the Will! Of! The! People!  And after reading these, it becomes quite clear that this wingers need a remedial course in American gov't and various types of governing systems.


As a Twiend of mine pointed out after seeing Walker's ruling, now is a good time to ruminate on the difference between a raw democracy and a constitutional republic.  The USofA is a constitutional republic.  Features of a constitutional republic include: a founding document which lays out a meta-framework of guidelines and principles for establishing the rules and laws of the land, and a limited type of democracy that allows the citizenry at large to elect representatives, who then go on to do the actual lawmaking independent of direct interference by the citizens who elected them.  A raw or pure democracy, on the other hand, is characterized by every decision being made by general election, or "the will of the people is the law".  


Since the US is a constitutional republic, the directly-expressed "will of the people" (mind you, that's the will of 52% of the people, not exactly a resounding majority; I wonder why they're not screaming about the will of the 6.5 million people who voted against Prop H8 in between shrieks about the 7 million who voted for it?) cannot overrule the meta-guidelines laid out in the foundational document.  And I don't know what Constitution they're reading while they're having their little headsplosions, cause my copy has these nifty bits about the government not impeding citizens' rights without due process, and having an obligation to protect the rights of all citizens, and it seems like Walker's copy corresponds with mine.  


I mean, really, when the judge's decision extensively cites not only the Constitution (with which conservatives seem determined to wipe their asses *coughBushAdministrationcough* right up until a progressive does something they don't like, at which point it's all THE!CONSTITUTION! YOU!CAN'T!DO!THAT! whether or not the document in question supports their freakout) but a not-insignificant body of established case law as precedent, the whiny bile of right-wingers is pretty clearly exposed for what it is: petty bigotry trying to cover itself with the flimsy shield of deliberate misinterpretation of and selective inattention to the Constitution under which all our other laws fall.


So here it is, right-wingers: Go and reread the fucking Constitution.  Nowhere in there is there a right, either explicit or implied (and no, you cannot pull the 10th amendment on this one, because due process and equal protection are in the federal Constitution, and the 10th says all powers/responsibilities not enumerated herein go to the states), of the people to vote to deprive other citizens of their rights in violation of the Constitution.  Period, the end, that is all, THE GENTLEMAN WILL SIT!

*According to a legal-issues reporter who's been following the Prop H8 trial and who I've been following on Twitter, @FedcourtJunkie, the State of CA is not going to appeal this decision, and the 9th Circuit may decide that the pro-H8 campaign doesn't have standing to appeal, saying: "Btw, Yes on #prop8 has serious standing problems for an appeal. This will become a huge issue very shortly- they might not be able to appeal".  So we may or may not see this go any further.  

It's Personal.

There's a cop-out I see come up fairly often, among homophobes, that I'm feeling the need to address.  Because they don't want to be rightfully seen as the hateful fucks they are, they try to "soften" it - you all know the drill.  "Love the sinner, hate the sin," and all that crap.  I see that one a lot.  But there's another one I see a lot, too.  "It's nothing personal."  It's a variant on LTS,HTS.  "It's nothing personal; I don't have a problem with you as a person, I just can't support your lifestyle."  That's one I heard a couple of times in that one awful class period, the purported separation of hate for a person from hate for their sexual orientation.


And it is, flatly, pure Grade-A bullshit.


To anyone who has ever said this - for example, Oklahoma City Councilman Brian Walters, whose quote of "It's not personal. I don't hate these people. It's just a moral conviction; I cannot support them" inspired this post - let me say it simply so you can never say you misunderstood.


This is never not personal.


It cannot ever be not personal.


For you, sitting high on your good fortune to be born with a sexual orientation widely accepted and promoted by the culture you live in, it's not personal.  For you, who has never been challenged or threatened or had people insist that you "chose" to love who you love, it's not personal.  For you, who never faced being thrown out of your home and family, harassed, taunted, even murdered for loving who you love, it can be not personal.  For you, to whom the laws provide support and encouragement in your establishment of a family, it can be not personal.  For you, who have never been accused of "shoving your preferences in other peoples' faces" for the simple act of holding hands, or kissing your partner on the cheek, or even just talking with coworkers about going to the movies with your partner over the weekend, it can be not personal.


But for those of us who are queer in one flavor or another, it is always, inevitably, unshakably personal.  You are not, with your half-masked hateful words, attacking some nebulous, hypothetical "lifestyle".  You are attacking us.  You are telling me that the love I felt for my ex-girlfriend wasn't real, or was somehow bad, wrong, deviant, immoral, etc.  You are telling the children of LGB parents that their moms or dads are bad people.  You cannot speak out against such a core identity as who one loves and partners with, without speaking out against the people who hold that identity.  These are not separate or separable things.  Yes, we are more than just sexual orientation, but that orientation forms a deep and abiding part of the whole, and you cannot extract it to attack without hitting the person around it, too.


So please.  Stop trying to pretend you'd like us as people if only we wouldn't be so very gay at you.  If you're going to hate us, be honest and hate us.  The compassionate face you try to put on it is not compassionate at all, and it's not fooling anybody. 

Conservatize The Courts (More)!!!

Not content with winning the Prop H8 fight at the ballot box, and then having it upheld by the CA Supreme Court ruling in their favor, the professional homophobe set here in California are now saying that Prop H8 shouldn't have even been necessary if we'd had the "right kind" of judges, using that as their rallying cry to launch an effort to ideologically purify California's courts to their liking. (via) 


A couple of Religious Reich organizations, including NOM (they of the hilariously awful and much-parodied "Gathering Storm" ad, and efforts across the country to halt our homomentum and roll it back wherever possible, including here in California, but also in Maine, NH, NJ, WV, NY, and DC), have partnered with a couple of conservative California reps to launch "BetterCourtsNow.com", a site and an organization which they hope will galvanize the conservative base into voting ever more conservative judges into California's courts.  

"It’s important that we unify our votes so we ensure that solid men and women of high morals, who will not legislate from the bench, are elected to office." - Joel Anderson, R-La Mesa

And of course, by "solid men and women of high morals," he means anti-gay, anti-immigrant, anti-abortion, the usual laundry list of culture-war topics.

Can I just say, I would be happy to listen if anyone has an intelligent reasoning why judges ought to be elected rather than appointed by people who actually know a qualified judge when they see one, but lacking a good explanation, my uneducated self cannot see why it is we allow "the people", most of whom have little to no knowledge of law or court procedures or what it takes to be a judge, to fucking ELECT judges? 

But beyond that, I love the usual accusation about "legislating from the bench".  Mind you, when a conservative-leaning SCOTUS legislates from the bench that corporations count as people -  a concept not found ANYWHERE in the Constitution that I'm aware of - these assholes certainly don't let out a peep of contention against that kind of judicial activism.  They're quite fine with judicial activism when it's conservative judges, but gods help the librul judge who dares set any kind of precedent, even one well-reasoned and in accordance with the body of case law as it stands. 

But it's not all bad, because these assholes screeching about judicial activism?  That, is the sound of the losing side scrabbling desperately to hang on to their power in the face of progress' inevitable march. 

A Quick Thought...

Today the federal trial of Prop H8's constitutionality began. I've been obsessively following Twitter feeds and reading liveblogging of the morning's arguments, since the bigots managed to get their collective undies in a big enough twist to have the recording/internet posting of the trial postponed until Wednesday, when SCOTUS will make a ruling on whether or not it will be allowed at all. This is, mind you, after nearly 140,000 people wrote in declaring they wanted the trial televised, and only 32 wrote in and said don't do it. For every pro-H8 supporter who wanted the cameras out, there were 4,375 advocates for transparency. And yet they still got SCOTUS to stall it. Sigh. And they say they're the oppressed ones.

But something that keeps coming up in the pro-H8's arguments this morning, is the idea of "protecting the children" by denying LGBs marriage equality. Remember the "Protect our children. Restore Marriage." ads during the campaign? The idea that children will somehow be harmed by same-sex marriage and need protecting from it? It's been brought up again and again by the pro-H8 side. And this time, I just want to ask...

What about the gay children? Many gay and lesbian and bisexual people have known their orientation from an early age. If they're protecting children by denying us rights, what about those children to whom they are ALSO denying rights? They're "protecting" gay children from being equal citizens under the law. They're "protecting" these children from the dreams of growing up and getting married that so many kids have. Personally? Realizing one's dreams of future happiness is a pretty shitty thing to "protect" someone against. Gay children are children too. And they deserve the protection of equality.

The Bizarro-World of Anti-Gay Activists

So Prop H8 finally goes to federal trial this month. And there was the discussion of whether or not to allow the trial to be televised; federal cases usually aren't, but they've begun to allow televising of non-criminal trials recently, and since the Prop H8 case affects the lives of so many, wouldn't televising it be a good thing? Transparency of the courts and all that. Well, we got a partial ok on it; the judge has conditionally allowed proceedings to be filmed and posted online the next day, but not broadcast live.

Of course, there was no question about it not being televised, until the pro-H8 bigots spoke up and asked for cameras to be barred. Their excuse? They fear a backlash against their bigotry from same-sex marriage supporters. Apparently we were so mean to them after the election they're scared to testify if they have to do it publicly. What they really mean is, they don't want their bigotry exposed for what it really is.

But what got me was, they're afraid of us. Let me say that again. Anti-gay bigots, people who actively strive to take away the rights of hundreds of thousands of people (millions if you're counting nationally, not just here) and have us legally designated as second-class citizens in a variety of ways, people who compare gays to pedophiles and donkey-fuckers, whose rhetoric incites hate and violence against our communities here and the world over...THEY'RE afraid of US? Are you fucking kidding me? What kind of bizarro-world do they live in, where the super powerful Ebil Gays are oppressing the poor, righteous Christians for daring merely to speak their hateful beliefs? I bet it's the same world O'Reilly and the War On Christmasers live in, where black is white and up is down and Christians in America are just so, so persecuted.

If they're so convinced they're Doing The Right Thing For Society, they should damn well have pride in their work and be willing to do it in the public view. And yet they're not, instead claiming victimization by the people they're trying to oppress in a pathetic attempt to hide their bigotry from scrutiny. Somehow, that just doesn't add up, does it?

...And Suddenly, It's Personal

So it seems that Courageless Campaign has backed out of the 2010 Prop H8 repeal effort. (via) That leaves Love Honor Cherish as the only major organization still working on the 2010 repeal effort. Right off the bat EQCA ignored public sentiment and opted to wait for 2012; Courageless Campaign, however, said they would go forth with a repeal effort in 2010, following the will of their constituency. They asked their members and the community at large, and an overwhelming percent - I don't remember the exact numbers anymore - said do it NOW. Waiting is not acceptable.

But now they've folded. The analysts say chances aren't good, so they're turning tail and running to wait on the sidelines with the other big kids - EQCA and Lambda Legal - for 2012 to roll around. To hell with what the community wants, to hell with the people who want their goddamn rights back already. Just wait. The numbers don't look good for this year. So sit tight with your thumb up your ass just like we are, and put up with being second-class citizens for two more years. It's not that hard, right?

And this time it's personal for me, in a way it wasn't before. I mentioned in my last post that I'm engaged. I also mentioned that I refuse to take advantage of the institution while it remains a heterosexual privilege. So this? It means I have less chance of getting married soon, too. Where before I would have just been pissed off, this time I read the news and started to cry. This doesn't guarantee defeat, no...but without ANY of the state's major organizations on board, things are looking pretty dismal. Thanks a whole fucking lot, Courageless Campaign. I stopped working with and donating to EQCA when they chose to wait; guess this means I'm going to quit giving my time and money to you, too.

But I will not stop working toward the repeal of that hateful law. My teaspoon will not stop. I am all. fucking. in. With or without the big kids on my side.