Prop 8: Back to the ballot in 2012?

Equality California on April 4 launched a campaign to gauge community support for heading back to the ballot in 2012 to try to undo Proposition 8.

Approved by voters in November 2008, Prop 8 amended the state constitution to re-ban same-sex marriage, which had been legal for 4 1/2 months.

EQCA said the ongoing federal lawsuit against Prop 8 "could take years to resolve" and so it wants to know what the "community" wants to do.

In a case brought by the American Foundation for Equal Rights, represented by famous attorneys Ted Olson and David Boies, a federal district court struck down Prop 8 last summer and issued an injunction barring its further enforcement.

However, the 9th U.S. Circuit Court of Appeals suspended the injunction, and the people who had put Prop 8 on the ballot appealed District Judge Vaughn Walker's decision.

Then a new question emerged: whether ballot-measure sponsors have legal "standing" to appeal a federal court's strikedown of a state ballot measure. None of the people who were sued in the case -- including California's previous and current governors and attorneys general -- had or has any interest in defending Prop 8. They consider it to be unconstitutional.

The 9th Circuit eventually decided it was unwilling to answer the "standing" question on its own and, in February, officially queried the California Supreme Court on whether ballot-measure proponents have any right under state law to defend their measures when they are struck down.

That's where the case stands now. The California Supreme Court has said it will not hear oral arguments on the question sent to it by the 9th Circuit until September at the soonest.

"Because legal experts are advising that the Proposition 8 federal challenge could take years to resolve, Equality California is launching a community engagement initiative to start a discussion on whether to return to the ballot in 2012 to repeal the marriage ban or whether to wait for a final decision by the courts," the group said. "Before making any recommendation, Equality California will survey its membership, hold 10 town halls across the state and an online town hall, conduct a poll of likely 2012 voters, consult with political experts, coalition partners and engage with its members and the LGBT community. Equality California will announce results of polling and analysis by Labor Day."

EQCA Interim Executive Director Jim Carroll said: "We were truly optimistic that the court case to overturn Prop 8 would restore marriage equality by the end of 2010 or early this year, making a ballot measure unnecessary. Despite the amazing work of the dedicated lawyers leading this effort, there is no guarantee how or when the courts will ultimately rule. As a community, we will figure out together whether we wait until the courts rule or whether we repeal Prop 8 at the ballot box."

"The courts ... are passing the case back and forth to different courts and refusing to allow same-sex couples to marry as they delay acting on our rights," he said.

Town hall meetings are scheduled for May 19 in San Francisco, May 25 in West Hollywood and June 2 in San Diego.

Equality California was harshly criticized over its leadership role in the costly 2008 campaign that failed to stop Prop 8 at the ballot box. The new effort to consult with the community about a possible 2012 campaign was launched just four days after then-EQCA Executive Director Geoff Kors stepped down from the job he had held since 2002.

Although numerous organizations and activists were involved in running the failed No on 8 campaign, EQCA and Kors, in particular, bore the brunt of LGBT community anger over the loss. In an interview April 4, Kors said the timing of his departure from EQCA was a matter of his partner's decision to retire from his job at this time. He also said he wanted the new EQCA executive director, who has yet to be selected, "to have enough time in the position prior to the 2012 election cycle, as redistricting and potential ballot measures will impact LGBT rights."

Critics of the 2008 campaign said it failed to engage key voting blocs, including people of color, didn't have enough door-to-door contact with voters, turned over too much power to outside consultants and big donors, and produced TV ads that were disastrously awful.

Notably, however, a year later when Maine activists mounted a major campaign to prevent voter revocation of same-sex marriage rights there, the Maine activists corrected for many of the California activists' perceived errors -- and lost nonetheless, by a slightly larger margin.

At a January 2009 meeting in Los Angeles, Kors acknowledged some of the No on 8 campaign's mistakes.

He said: "When I look at what was the biggest mistake, when I lie awake at night prepping my e-mails I'm going to send to all of you and I think about the biggest mistake that we made, it's that we've turned everything over to political experts and political consultants. And I would never ever do that again. You know, when we started Equality California, everyone was, like, 'Hire professional lobbyists to go lobby on LGBT issues,' and I was, like: 'You gotta be kidding. We're going to do our own lobbying because it's about our lives and we know what we're talking about and we know how to do this.' One thing, you know, that I would never do again ... we should have been in the strategy room and part of those (consultants') conversations, and that was a huge mistake."

Los Angeles Gay & Lesbian Center CEO Lorri Jean, another key member of the No on 8 leadership team, was similarly forthcoming at the 2009 meeting.

"How could we have realized earlier that professional, high-paid consultants were not delivering product?" Jean asked. "I'm trying to say this and not be too provocative, since we have so many professional political campaign consultants in the room. But, you know, there is an approach that people who are professionals use to do this. And I think one of our challenges as a community, given that issues of relevance to our community are different than anything else that goes on the ballot because of the emotion and the other things that are associated with them, we have got to find a completely different way than business as usual to do this work."

Olson & Boies: Let Calif. gays marry right now

American Foundation for Equal Rights lawyers Ted Olson and David Boies filed a motion with the 9th U.S. Circuit Court of Appeals today asking that it immediately lift its order preventing same-sex marriages in California.

That order, issued in August 2010, temporarily blocked an injunction from U.S. District Judge Vaughn Walker that barred further enforcement of Proposition 8.

Walker issued the injunction after finding that Prop 8, via which voters amended the state constitution in 2008 to re-ban same-sex marriage, violates the U.S. Constitution.

"The stay was originally ordered with the understanding that the 9th Circuit would rule swiftly on the case before it," said Olson. "Now that the issue of the (Prop 8) proponents' standing to appeal has been referred (by the 9th Circuit) for analysis by the California Supreme Court, substantial additional, indefinite and unanticipated delays lie ahead. It's unreasonable and decidedly unjust to expect California's gay and lesbian couples to put their lives on hold and suffer daily discrimination as second-class citizens while their U.S. District Court victory is debated further."

The huge delay was introduced into the case Feb. 16 when the California Supreme Court agreed to answer a question sent to it by the 9th Circuit. The federal court asked the state court if the people who put Prop 8 on the ballot have any legal right, under California law, to be in court arguing to overturn Walker's decision.

The California Supreme Court's answer would be taken into consideration by the 9th Circuit judges when they decide whether to grant the Prop 8 supporters federal "standing" to appeal. Those proponents need standing because everyone who was sued in the federal Prop 8 case, including California's governor and attorney general, has refused to defend Prop 8.

The problem in all this, for Olson, Boies and AFER, is that in agreeing to answer the 9th Circuit's question, the California Supreme Court indicated that it won't even hear oral arguments on the issue until September at the earliest. AFER also has filed documents asking the California Supreme Court to speed up its process for answering the question.

If the Prop 8 supporters ultimately are found to have no standing to appeal Walker's ruling, then the 9th Circuit won't hear the case. That would most likely allow Walker's ruling to take effect and same-sex couples to marry again in California.

The federal standing question, however, could be appealed to the U.S. Supreme Court. So could a decision by the 9th Circuit to grant Olson and Boies' request that it lift the stay on Walker's injunction.

It has been 203 days since Prop 8 was found to violate the U.S. Constitution -- and yet not one same-sex couple has been allowed to marry in California in those 203 days because of actions by 9th Circuit judges.

"After a full trial, the U.S. District Court ruled unequivocally that Proposition 8 violates the Constitution's guarantee of equal protection under the law and harms thousands of gay and lesbian couples and their families," said AFER Board President Chad Griffin. "While the courts determine procedural questions, gay and lesbian families will continue to suffer. Life is not eternal -- sometimes it is tragically short -- and courts should not act as if it were otherwise. Today we are requesting the California Supreme Court to quickly resolve the issue of standing, and the 9th Circuit to allow marriages to resume."

Photos by Rex Wockner