Whether or not the California State Supreme Court upholds Proposition 8, one thing is certain: The battle to legalize or ban gay marriage in California will not end with the justices’ ruling due before June 3.
“We’re getting ready for a new campaign,” says Frank Schubert, campaign manager for “Yes on 8.” “We’re going to be ready for that.”
Rick Jacobs, the gay founder of the Courage Campaign, a politically progressive, online organizing group which is building a grassroots movement to legalize gay marriage in California, says, “If we lose at the hand of the Supreme Court, we need to win at the ballot box. There’s no other way.”
No one knows, though, exactly when the next showdown will take place.
The talk of another ballot-measure fight started soon after oral arguments were heard last Thursday by the California State Supreme Court in San Francisco, where competing attorneys asked the justices to either overturn or uphold Proposition 8, the ballot measure that California voters passed in November taking away the right of gays and lesbians to legally marry.
Noted UCLA constitutional-law professor Eugene Volokh won’t speculate on how the Supreme Court may rule, but he echoes dozens of scholars who believe “Yes on 8” lawyers, led by Pepperdine Law School Dean Kenneth Starr, have the “better legal argument.”
“However right or wrong an issue may be doesn’t matter,” says Volokh, a supporter of gay marriage. “What matters is whether Proposition 8 is a revision or an amendment, and the people have a right to amend the (state) constitution.”
A ballot measure, according to Volokh and many other legal scholars, only falls under the category of a “revision” when there’s “a massive change that affects the constitution in a major way.” In the law professor’s opinion, Proposition 8 “only changes one particular subject.”
“It is very much an amendment,” Volokh concludes.
Schubert, as a result of that technical argument, believes gay-marriage foes will end up with a favorable ruling. “It went very well,” says Schubert, who attended the Supreme Court hearing in person. “It seemed there’s little sentiment to overturn Prop. 8.” Schubert, though, does not expect the justices to invalidate the same-sex marriages that took place between June and November of 2008, which “Yes on 8” lawyers were also seeking.
Even if the Supreme Court upholds Proposition 8, Schubert is preparing for another battle over gay marriage — just as the pro-gay marriage forces are — citing an ongoing “education and outreach program.” “We have pastors and priests talking about traditional marriage in churches,” he says. The political strategist plans to use the unspent cash in the “Yes on 8” war chest, which he says is in the range of $500,000 to $850,000, on more message-oriented research and focus groups to bolster the “Yes on 8” movement.
Schubert says the “No on 8” loss has “pretty much obliterated” the gay leadership structure in California, so it’s “difficult to know what the other side will do, since there isn’t anyone in charge anymore.”
“The evidence of that,” Schubert further explains, “is that you have all of these grassroots groups getting involved without any input from the usual gay leaders.”
Jacobs says Schubert is somewhat correct in assessing the disarray among gay leaders. “He’s right about grassroots,” says Jacobs, “but he’s looking in the wrong direction. All kinds of people want gay-marriage equality, not just gays and lesbians. He clearly doesn’t understand movement politics, and that’s what we’re seeing.”
Jacobs is trying to organize a new, grassroots-oriented gay-rights movement in California. After November 4, the top-down management style of the campaign, which was headed up by such longtime gay leaders as Geoff Kors of Equality California and Lorri Jean of the L.A. Gay & Lesbian Center, was widely seen as a weak link in the failed effort. Over the past few months, the Courage Campaign has been hosting a two-day training seminar, “Camp Courage,” for gay activists throughout the state.
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The organization also produced a pro-gay marriage video called “Fidelity,” which was released on its Web site (www.couragecampaign.org), and it has collected more than 300,000 signatures from people who pledge to overturn Proposition 8. Since November 5, the Courage Campaign says it has increased its e-mail list from 125,000 people to 700,000.
Jacobs, who watched the Supreme Court proceedings on a San Francisco street where a live feed played on an outdoor screen, thinks the justices will probably uphold Proposition 8, and he’s now concerned that longtime gay power brokers such as Equality California may push for a new ballot measure in 2010. “It’s one of my greatest fears,” says Jacobs, noting that the gay-rights movement first needs to “build a (grassroots) infrastructure” and educate voters about gay marriage in California counties where “No on 8” lost — including Los Angeles County. “If we get a few more percentage points in places like Fresno,” Jacobs says, “we win.”
“The right time for us to go to the ballot is when we’re ready,” says Jacobs, “not when the ballot is ready.”
Contact Patrick Range McDonald at firstname.lastname@example.org.