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Rachel – I approve of the effort too!

All states have the same set of 3 branches that apply to their own state government. Local government generally works the same way too. It is the American model.

But….

Here is that part where it gets messy on the ground with this issue.

In California, I guess historically government got so that it was not responsive to the citizens. So the Citizens of the time changed the Constitution that said citizens can pass laws without the usual process that involves the legislature proposing the law and the executive (governor) signing it.

In California, people can propose a law by getting enough signatures from the voting public to place it on a ballot. That law can be a general law, or it can be Constitutional Amendment.

As a result, our Constitution is easily amended, compared to others. We have over 500 amendments in the 100 years or so since this could happen.

By contrast, the US Constitution was ratified in 1791 and has only 27 amendments, 10 of which are the Bill of Rights and were passed at the time of the Ratification itself.

Which brings us to the issue and our hero Stuart: a few years ago, the people passed by ballot called Prop 22. IIRC, the language was the same or close to what Prop 8 says now about who can marry.

Stuart and his partner sued that that law was unconstitutional – the California Constitution. The case reached the California Supreme Court; in spring 2008 the Court decided in Stuart’s favor, and the law was tossed out.

That was the precise instant that 18,000 same sex marriages in California started. It was legal because the Court had thrown out any and all laws prohibiting it. Thanks Stuart!

But, while those marriages were happening, the people gathered signatures for a new law – this time a Constitutional Amendment. The wording is the same, but as an Amendment, the State Court can’t overrule it, only another Amendment can appeal it under California law.

Basically, the folks who lost Stuart’s case wanted to raise the stakes and make it harder to change then even it had been before.

Immediately after Prop 8 was passed, a few things happened.

First, there was a court case in California to decide if it was even allowed to pass an Amendment of the nature of Prop 8. The same supreme court that only months before had tossed Prop 22 (thanks Stuart!) ruled that Prop 8 was in the proper form an amendment has to be in, and hence was valid.

I am sure the Court doesn’t like the law, but they don’t get to decide about it this time.

So there was (and is!) a movement to get a a repeal amendment on the ballot. There was an active debate as to whether that should be this year (2010) or at the next opportunity (2012). Fro various reasons, 2012 has prevailed as the preferred choice, but within the movement that was a very hot discussion- repeal ASAP, or wait until there is more time to prepare carefully.

In the meantime, their is one other possible approach – all State laws must also be valid under the US Federal Constitution. Federal Courts decide these sorts of issues, not State Courts.

So while the plan was made to get a ballot issue to repeal Prop 8 in 201 was underway (collecting the requisite number of signatures will be no problem btw), independently a case developed where the matter would be presented as a Federal Constitutional issue. This is the well known Perry v. Schwarzeneggar case.

I should mention that just as local advocates were split on 2010 or 2012 for a repeal effort, people were uncomfortable about raising a Federal issue at this point. Ultimate such questions are decided by the US Supreme Court, and the nine members there are generally predictable in their opinions on this sort of thing. Right now, it is 4 on our side, 4 against, and one unknown. So any Federal case is a huge risk, you don’t get many chances, and if you lose, it could be decades before you have a realistic chance to try again, if then.

But, someone decided to take the plunge, as is their right, and while I won’t recap the trial itself here, because you probably know about it, what I will say is that is is in the Judicial Branchof the US government.

At the lowest level of that is the District Court for the area where the case arises. So in this case, California, and more specifically San Francisco. The 9th District covers that area, and the case was randomly assigned to Judge Walker. The trial was held, he made his ruling, that Prop 8 is unconstitutional under the US Constitution. This has nothing to do with the California Constitution at all.

Now, we are at the first level of appeal, which will be to the 9th Circuit Court, which covers appeals of the 9th District Court rulings. From there, any appeal would be presented to the US Supreme Court, which can decide to hear the appeal or not at its whim.

But…(there is always a but

There is some question as to whether even this first level of appeal is allowed. And that is unusual, generally the losing party has the right to appeal.

But in this case, the actual defendants were the Governor and the Attorney General, who represent the State in Court. Neither is in favor of Prop 8, so they declined to offer a defense. They said, in effect, we agree with the plaintiffs, we concede.

So who was a the trial then?

The group that was in charge of the Prop 8 campaign said to Judge Walker before trial, if the defendants won’t defend, then we would like to.

When this happens (and it is probably not often), the new group does not become defendants. Instead they are called Defendant-Intervenors, because they are “intervening” on behalf of the defense. Unlike the actual defense, they don’t really have anything at stake in the law suit, but they do have sufficient knowledge and interest to raise issues in court. So Judge Walker allowed that.

Well, we all know they didn’t do a great job, and they lost handily.

Now they want to appeal, which is natural.

But remember, they are not the actual defendants! And the actual defendants, the Governor and Attorney General, don’t want to appeal, they say they agree with the ruling. they would have 30 days to appeal, and that ends next week, on September 11.

So right now, the 9th Circuit Court is deciding if there is anyone that is allowed to appeal or not. There has been at least on case that was decided by the US Supreme Court which found that if the defendants don’t want to appeal, then the Defendant-Intervenors are not allowed to either.

This is where we are now. If the D-I can not appeal, the case will likely die right here and Judge Walker’s ruling will be final,but apply only to California. There are other possibilities too, covered on numerous blogs.

If that happens, then Prop 8 would be ruled invalid, and California law would revert to the way it was before Prop 9, which means the Stuart’s case would be the law of the land again, and people will start getting married in California instantly, as in the very next day. (Thanks Stuart!)

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SAN FRANCISCO– Today, Equality California renewed its call for President Obama to take action on the federal court challenge of Proposition 8. Yesterday the deadline passed for third parties to file amicus briefs in the case weighing the constitutionality of Proposition 8, a state referendum that stripped same-sex couples of the freedom to marry.
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Hit the link for more: Equality California Urges President Obama to Take Action on Federal Prop. 8 Case

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On Wednesday night, the President’s Own United States Marine Band produced a colorful and patriotic performance underscored by brass notes punctuating rapidly paced reeds and roaring percussion to pieces arranged by some of the nation’s most well known composers. The audience, housed in the Frank “Buck” Shaffer Theatre was pleased, evidenced by their hearty applause and standing ovations throughout.

via Marine Band plays patriotic pieces | plays, band, president – Local News – Recorderonline.com.

OK, the crowd was not really whipped into a frenzy.They were generally mystified that outsiders had stumbled into Porterville to entertain them, but politely pleased that they did.

The performance was enjoyable, akin to a Pops Concert almost. In Porterville, any outside performance is a big deal, and this one was well done.

We were a little nervous arriving – the tickets made plain that everyone needed to be seated by 7:15 even though the show was not until 7:30. Thoughts of the fate of a certain Georgian theater crowd at the hand of the Russians crept through my mind. And, well, we saw “Inglorious Basterds” too ….

In the end there was no violence or no explanation for why the public had to follow marching orders from the Marines. At least there was no speechifying either, all joking aside, that is what I thought those 15 minutes would be used for. At least 3 City Council members were present, but they simply enjoyed the show as everyone else did.

Overall, I’d say the age of the attendees was skewed towards the Korean War and Vietnam War veteran era.

I was really only joking to myself when I thought, during the opening rendition of “The Star Spangled Banner”, that some of the attendees may very well have been fighting in the War of 1812. They were old, but not that old.

And, since our National Anthem was written in my home town of Baltimore, I feel a special pride when I hear it. I also, having attended hundreds and hundreds of baseball games, found it extremely difficult to repress the Pavlovian need to shout “O” during the final verse of “Oh say can you see”. I stifled it OK, but I lost sleep as a result of the internal effort.

That was interesting because it has been decades since those days. And it was almost as interesting that I similarly expected the band to break out of its formal posturing during the intermission and break out into a rousing “Thank God I’m a Country Boy”. Ironically, of the hundreds of times I have heard that song sung along to by a crowd, it has never been a crowd of “Country Boys” as it was last night.

One of the most enthusiastic  standing ovations mentioned in the article above (they weren’t really “throughout” but at scripted predictable places) occurred as Bennear emotive sang the lines “Let Freedom Ring” from “My Country Tis of Thee”.

My thought at the time was how ironic that probably 80% of the standing audience voted less than one year ago to remove *existing rights* from a minority of people under the schoolyard guise of “majority rules!!! nyah nyah nyah!!!”.

Most of the other 20% was the high school students that reporter Chandler mentioned above by the way, too young to have voted lat year, but who will be the votes that restore the rights to their, well, rightful place soon enough.

Also curious: The program, provided by the Band, says that they perform 500 times a year outside of Washington on tour of the US. That struck me at odds with Bennear’s well rehearsed comments that we all learned the patriotic tunes in the ending medley during grade school.

I did learn them, at a time in the late 60s when I have since learned there were riots in the city across the river that was at the bottom of our hilly block.

But I am out in the real world and I know that the demographics of America are such that in our lifetime we have had a huge influx of immigration from around the world, and not all citizens or even visitors who might attend a performance of this historic band somewhere in America learned patriotic songs as a kid.

I found that comment rude and insensitive and  so did my girlfriend who is not originally an American Citizen and so did not receive her earliest schoolgirl indoctrination in American schools.

I was personally disappointed that the last piece was “God Bless America” for two reasons. One, of course is that there was the triple-whammy of both Federal and Local governments stretching the First Amendment’s Establishment clause.: A Federal Band singing about God and America? In a public school funded by the state and local citizens?

No public event in Porterville is complete without the First Amendment Establishment Clause being stretched to its limits of course, but I am sure the crowd would have been just as thrilled and roused by a tune written by Woody Guthrie, musical hero of the Dust Bowl Refugees (hello all you 70+ year olds-in the audience, might that be you or your family?).

“This Land is Your Land”, which I have written about before, is  the tune he wrote in response to “God Bless America”‘s religious pleas and jingoistic overtones. The lyrics,  are  more inclusive and equally grand and well known “This Land is Your Land”. That song  would have been a far better choice to send the crowd out with. It is a truly beautiful song, maybe the most beautiful of all patriotic tunes.

And I am not saying the Band itself was lily-white – I recall noticing an Asian guy on a woodwind instrument, but other than that, it sure didn’t look like the face of any part of America I have ever seen. This band has been playing since 1798 – yes that is not a typo – and this is the best they can do equality wise?

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This is a remarkable article containing what is tantamount to an admission in open court that Prop 8 supporters do not believe their own rhetoric, in fact do not even understand it well enough to be able to analyze it and anticipate challenges.

You know, the sort of thing they teach the first day in debate class or rhetoric class in high school.

Either that, or no savvy lawyers are willing and available to represent their case.

The quotes from Any Pugno at the end, a Prop 8 supporter are  pugnacious an repugnant. As you read them, substitute “slavery” for “same sex marriage” and see if his thoughts make any sense at all.

October 14, 2009

By LISA LEFF

Associated Press Writer

A federal judge challenged the backers of California’s voter-enacted ban on same-sex marriage Wednesday to explain how allowing gay couples to wed threatens conventional unions, a demand that prompted their lawyer to acknowledge he did not know.

The unusual exchange between U.S. District Chief Judge Vaughn Walker and Charles Cooper, a lawyer for the group that sponsored Proposition 8, came during a hearing on a lawsuit challenging the measure as discriminatory under the U.S. Constitution.

Cooper had asked Walker to throw out the suit or make it more difficult for those civil rights claims to prevail.

The judge not only refused but signaled that when the case goes to trial in January, he expects Cooper and his legal team to present evidence showing that male-female marriages would be undermined if same-sex marriages were legal.

The question is relevant to the assertion by gay marriage opponents that Proposition 8 is constitutionally valid because it furthers the state’s goal of fostering “naturally procreative relationships,” Walker explained.

“What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?” Walker asked.

“My answer is, I don’t know. I don’t know,” Cooper answered.

More, much more after the jump..

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Hit the link for more: Judge refuses to dismiss gay marriage ban lawsuit

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In the last of hundreds of bill actions taken before midnight Sunday, Schwarzenegger approved the two bills by Sen. Mark Leno, D-San Francisco.

The governor last year vetoed the measure declaring May 22 a state day of recognition for Milk, suggesting that the former San Francisco supervisor be honored locally. But he subsequently named him to the California Hall of Fame.

Leno’s SB 54, meanwhile, requires California to recognize marriages performed in other states where same sex marriage is legal.

In a signing message, Schwarzenegger said California will not recognize the couples as married but will “provide the same legal protections that would otherwise be available to couples that enter into civil unions or domestic partnerships out-of-state. In short, this measure honors the will of the People in enacting Proposition 8 while providing important protections to those unions legally entered into in other states.”

via Schwarzenegger signs gay rights bills – Latest News – sacbee.com.

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Nature vs. Nurture:

The origin of bigotry should be the focus of a nature vs. nurture debate.
- Kim Coco Iwamoto, Hawaii State Board of Education

On the Nature of Justice:

No one should be patient when it comes to their Human Rights. Justice delayed is Justice denied. Justice is Indivisible – you can not be for Justice for some and not for all. Today we call on all people to look into their heart and tell us why we should not be equal.

Stewart Applebaum – gay leader of Retail, Wholesale Workers Union, President of Jewish Labor Committee

On the nature of equality:

Equality is about having all our basic needs met.

Penelope Williams – bisexual activist

On the nature of oppression:

When you feel oppressed and beat down, you don’t feel nothing, you don’t give a damn.

Much more after the jump…

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Hit the link for more: Quotes from the National Equality March