Why California's Discriminatory Proposition 8 Might Not Stand

By Karen Ocamb, AlterNet
Posted on January 29, 2009, Printed on February 13, 2012
http://www.alternet.org/story/121182/why_california%27s_discriminatory_proposition_8_might_not_stand

The anger over the passage of Proposition 8 has not abated. New groups of young activists have sprung up across the nation decrying the constitutional amendment that eliminated marriage rights for same-sex couples in California. In addition to ongoing protests against pro-Prop. 8 evangelical pastor Rick Warren, the new activists are finding creative ways to stay engaged.

The twentysomething co-founders of Equal Roots, for instance, shocked and embarrassed by their own complacency during the battle over Prop. 8, sponsored a rally in West Hollywood of more than 750 people on Jan. 10, the day the new online group Join the Impact called for a national rally to repeal the Defense of Marriage Act. The group held a four-hour "action fair," where new activists met older organizers, signed petitions and joined new efforts.

Equal Roots advocates art as activism and prominently displayed an original poster designed for them by Shepard Fairey -- the artist whose posters of Barack Obama have become iconic. Fairey created a special "Defend Equality -- Love Unites" poster for the group, with a hundred or so first-runs expected to be auctioned off later to help support the effort.

But the highlight of the artistic advocacy was an inspired "live" version of gay composer Marc Shaiman's online skit, "Prop. 8: The Musical," at the end of the rally, featuring gay actor Wilson Cruz as Jesus.

"Today in Los Angeles, and across the state of California, the LGBT community is united and engaged like never before. We're coming together, strategizing and taking action to secure full equality for our community here in California and, ultimately, across the nation," says Equal Roots co-founder Matt Palazzolo.

And the LGBT community is getting a lot of help, starting with California Attorney General Jerry Brown. In his brief filed in December, Brown, who is considering a run for governor, said Prop. 8 is unconstitutional and announced that his office would not defend it in the lawsuit currently before the California Supreme Court.

"The amendment-initiative process does not encompass a power to abrogate fundamental constitutional rights without a compelling justification," Brown wrote. "Proposition 8 lacks such a justification."

A slew of straight allies and organizations, from labor to religious groups (including the California Council of Churches) to business and civil rights organizations, filed or signed on to legal briefs filed with the high court Thursday.

During a conference call with reporters before filing their lawsuit, SEIU-UHW's Sal Roselli, and Art Pulaski, the executive secretary-treasurer of the California Labor Federation, explained why their organizations and more than 50 other labor organizations representing more than 2 million California workers filed their amicus brief.

"When you look at health-and-welfare benefits provided by legislation," Pulaski said, "those are available in traditional marriages -- but not domestic partners. Unions can negotiate with employers to be sure that domestic partners get included, but that's only a negotiating point -- it's not guaranteed. We're saying that's not fair. Benefits should be available."

Additionally, Roselli noted, if Prop. 8 is allowed to stand, no group -- including labor -- is safe from a "popular" vote.

Renown constitutional scholar Tobias Wolff, an openly gay professor of law at the University of Pennsylvania Law School, filed an amicus brief on behalf of civil rights organizations.

"This lawsuit is about the rights of all minority communities in California," Wolff said. "If a ballot initiative and simple majority vote could be used to take away the rights of one unpopular group, then the rights of any group could be subjected to a popular vote. That is why some of the nation's leading civil rights organizations have joined together to support the challenge to Proposition 8."

"Proposition 8 will be bad for California businesses in a variety of ways," said Dean Hansell. "It will be much more difficult to recruit and retain employees who might prefer to go to a state with a better legal environment" as well as confusing how to pay equal benefits. Hansell, an openly gay partner at Dewey & LeBoeuf LLP, filed an amicus brief on behalf of Google, Levi-Strauss and other businesses.

Proponents of Prop. 8 are fighting back, including filing a federal lawsuit Jan. 7 seeking to excuse them from filing final campaign-finance reports Jan. 31 for fear their donors might be harassed. Currently, the California Secretary of State's Web site lists more than 64,000 donors who supported or opposed Prop. 8.

"Same-sex marriage advocates are not a mass movement; they are a powerful and sophisticated special-interest group which believes they have the moral right to get their values inserted into the law," Brian S. Brown, executive director
of the National Organization for Marriage, wrote in a fundraising e-mail to supporters.

Yes on 8 campaign Chairman Ron Prentice told the Sacramento Bee the campaign received hundreds of complaints of what he called "harassment, intimidation and threats."

"This could significantly influence participation in the future for social issues if this kind of intimidation continues to be allowed because of disclosure laws," he told the Bee.

Equality California Executive Director Geoff Kors said, "their hypocrisy is galling," since the Yes on 8 campaign sent threatening letters to Equality California donors during the campaign. Kors also noted that voters passed California's Political Reform Act in 1974 precisely to establish campaign-finance disclosure requirements for candidates and campaign committees.

"Prop. 8 supporters continue to say that courts should never overturn voter-approved initiatives," Kors said. "Now they are in court asking to have the law not apply to them. What are they trying to hide?"

Heightening the situation is a controversial new interactive Google map that highlights where financial supporters of Prop. 8 live and work.

"It helps one see whom to engage. And I don't get the fear. If Prop. 8 supporters truly feel that barring equality for gay couples is vital for saving civilization, shouldn't they be proud of their financial support? Why don't they actually have posters advertizing their support for discriminating against gay people -- as a matter of pride?" Atlantic Monthly's Andrew Sullivan wrote on his blog.

That question may eventually be put to the Church of Jesus Christ of Latter-day Saints by the California Fair Political Practices Commission (FPPC) after a new video surfaced Jan. 14 revealing the extent to which the Mormon Church funded the Prop. 8 campaign.

Steven Greenstreet, a producer at the American News Project, a Washington news organization, released a video with new information about an hourlong Web broadcast to every Mormon Church building in five western states in October. The broadcast shows church leaders discussing their extensive strategy on how to pass Prop 8. Greenstreet says he has obtained the entire broadcast and has forwarded it to the FPPC, which is investigating the church's failure to report many of its Prop. 8-related expenditures.

Greenstreet's report also notes that the IRS forbids religious organizations from "substantially" lobbying for political legislation -- and this case may force the IRS to define exactly what it considers "substantial."

However, while there have been many calls by Prop. 8 protesters to "tax the Mormon Church," the church would only be subject to losing its nonprofit status in California, not nationwide, if the FFPC finds it is guilty. Only the IRS or a court could strip the church of its federal nonprofit status if found guilty of violating the law.

Meanwhile, gay rights advocates continue to call for those who eliminated the "fundamental" right of same-sex couples to marry to be held accountable for their position.

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