It's Raining Puppies!

You know how they say "when the going gets tough, the tough go shopping"? Well, my family has just modified that to: "When the going gets tough, the tough get puppies!"

Yup, it's true. In the midst of financial and political/legal chaos, we chose to embrace life by adding two new members to our family on Saturday. They are a baby brother and sister, not quite 12 weeks old. They are the last two left from a litter of 11, and we got them from a gal in Willits who rescued them from a "free to anyone who'll take them off our hands" situation. Their mom was a Chesapeake Bay Retriever, and their dad was ... well, officially he was a Golden Retriever, but we're not buying it -- they look like lab pups to us, and to our vet. So we're going with Ches/Lab mixes. And if you have any names to suggest....

We are great believers in adopting pets instead of getting them from breeders. These two were adopted through CARRE -- the California-Arkansas Retriever Rescue Effort. I'm not kidding. It's kind of an underground railroad that brings abandoned dogs and puppies from Arkansas -- and other Southern states -- to the Bay Area to find good homes for them. They apparently helped rescue dogs from New Orleans after Katrina, too. If we hadn't picked up these guys on Saturday, we were invited to come down to SFO on Sunday to meet a litter of 9 pups arriving at the Delta freight area. In short, it's raining puppies.

SO -- if you need to bring some abundant life into your home as well, I highly recommend checking with CARRE -- and tell Marge I sent you!

Oh, and by the way, the California Supreme Court granted review of the constitutionality of Prop 8 yesterday.... :)

Prop 8 in the California Supreme Court -- Update

Since I keep being asked what's happening in the Supreme Court, I thought I should post an update. First, if you are wondering what the case is about, refer back to my blog posting of November 7, where I summarize the basic arguments. I will not repeat those here. The first issue facing our Supreme Court is whether or not to even accept the challenge to Prop 8 as a case they will review. The Supreme Court gets petitions for review on a myriad of cases and issues, and they only actually agree to review a small number of those. They don't have to review any case they don't feel presents a sufficiently important issue, brought to them in an appropriate way. (This was the basis for their refusal to hear the challenge to Prop 8 brought before the election -- they did not consider the issue "ripe" for their review, since no one's marriage was even arguably invalidated and no constitutional right was implicated until Prop 8 actually passed.) In other words, there is no guarantee the California Supreme Court will actually review the validity of Prop 8 at this point -- that is the first hurdle the No on 8 folks have to get over. On November 10, the Anti-Defamation League, the Asian Law Caucus, Bet Tzedek Legal Services, the Japanese American Citizens League, and Public Counsel submitted what is called an amicus curiae letter to our Supreme Court. An amicus curiae letter is a letter to the court to let them know why the folks writing the letter think they should (or should not) accept a particular case for review. In this particular amicus letter, the groups describe themselves as "organizations devoted to obtaining and preserving justice, civil rights and equal protection of the laws both for members of groups that have suffered discrimination for long periods of California's history and for all Californians." They describe Prop 8 as "an extreme measure" that, they argue, "subverts" the fundamental nature of equal protection as "an abiding and permanent principle upon which the People have based their Constitution and a central tenet of democratic governance." They argue that "Proposition 8 is an extreme measure that subverts that fundamental principle [of equal protection] and eviscerates this Court's constitutional authority to interpret and enforce the requirement of equal protection. Amici, many of whose members have been subject to discriminatory laws and practices, write to urge the Court not to permit a bare majority of voters in a single election to work such a drastic alteration of our Constitutional scheme. Rather, the Court should hold that consistent with the restraints the People have imposed on themselves through the Constitution, such a dramatic step is a revision and not an amendment." Strong words, those. The fundamental issue here is what it means to be a Constitutional democracy. The use of the popular vote to make decisions is at the core of what it means to be a democracy. But what does it mean to be a Constitutional democracy, and what limitations does a Constitutional democracy place on majority rule? One of the best comments I have seen on this subject appeared in an on-line response to a column from today's New York Times. The column, entitled "What it Felt Like to be Equal," was written by Judith Warner. The comment came from a woman in South Africa, who wrote: "I live in South Africa, where the highest court ruled a couple of years ago that it is unconstitutional to deny gay and lesbian couples the right to marry. This ruling was not popular with most South Africans, but people here are slowly getting used to the idea. As a nation, we are learning the hard way that democracy does not equal majority rule. Rather, in our modern, constitutional democracy, the majority can never vote to take away the basic rights of a minority. I am surprised that this is allowed to happen in the USA, a country with a constitution that grants all its citizens equal protection under the law." Yup, that's the issue. What does it mean to have a Constitutional democracy, not just majority rule? And is Proposition 8 antithetical to the concept of a Constitutional democracy? Those are the questions our Supreme Court will have to answer if it accepts review of Prop 8.

When Religious Marriage is the Only Option

I was talking to my brother this morning, and realized one of the true ironies of the passage of Prop 8 in California: having amended our state Constitution to deny gay folks access to civil marriage, we will once again see only religious marriages being performed in the lesbian and gay community. For years, many religious institutions -- including churches, temples and parishes of a variety of faiths -- have gladly performed same-sex weddings. Without a doubt, more churches are opening their doors to openly gay congregants every day. The passage of Prop 8 will not prevent any of these religious institutions from performing gay marriages, any more than defeat of Prop 8 would have forced religious institutions to bless gay unions to which they are opposed. One of the primary arguments made by those in favor of Prop 8 was that the court's decision to legalize same-sex marriage was a slap in the face to the Judeo-Christian definition of marriage as the union of one man and one woman. Civil marriage -- sanctified only by a civil clerk and performed outside a religious institution -- need not have had profound religious implications. But now, gay couples desiring to wed will have no choice but to marry in religious institutions, since civil institutions have been precluded from sanctifying same-sex unions. Want to see a gay marriage? You can't see them at City Hall anymore, but check out your nearest Church!

Defeat Prop 8 -- The Lawsuit

Here is a quick summary of the legal case against Prop 8: Our California Constitution provides two different processes for making change at the constitutional level: amendments and revisions. Amendments can be made by the Legislature or through the initiative process, by a simple majority vote. Revisions require passage by 2/3 of both houses of our state Legislature and then either a constitutional convention or approval of a majority of voters. So, the issue now is: Is Prop 8 an amendment or a revision? To understand the issue, you need a little background. In its May ruling on marriage equality, our Supreme Court reached two very important conclusions: (1) gay and lesbian citizens are a suspect class (i.e. a distinct minority group subject to historical discrimination), and we therefore are entitled to heightened constitutional protection; and (2) marriage is a fundamental right of citizenship embedded in the equal protection and due process clauses of our state Constitution. Having reached those two conclusions, Prop 8 now purports to strip a suspect class of people of one of our fundamental constitutional rights by popular vote. That is unprecedented. That is profoundly undemocratic. Preventing that type of behavior is what the courts, at their core, are there for. Our court has previously ruled that "the 'underlying principles' of the Constitution are meant to be of a 'permanent and abiding nature.' Accordingly, an 'amendment implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.' ... In contrast, a revision substantially alters those underlying principles or makes 'far reaching changes in the nature of our basic governmental plan.'" (Quoting from the brief filed by NCLR, the ACLU and Lambda Legal asking the Supreme Court to first stay, and then invalidate, Prop 8.) Our Supreme Court has previously held that their "analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature." A change to many separate parts of the Constitution is likely to be found to be a revision, and not an amendment, on quantitative grounds. But a change to just one part of the Constitution can also be a revision, on qualitative grounds, if it "substantially alter[s] the substance and integrity of the state Constitution as a document of independent force and effect." Needless to say, there is merit to the arguments on both sides of this issue. The initiative process is itself embedded in the Constitution, and the required procedures have been followed in this case. So if Prop 8 is, in fact, an amendment, it stands. But the California Supreme Court, having already ruled that gay men and lesbians are a suspect class entitled to heightened protection, and having already ruled that the right to marry is a fundamental right, has got to take seriously the question of whether it is constitutionally viable to allow the majority to strip a protected minority of one of our fundamental rights. As stated by our attorneys: "To the best of [our] knowledge, by seeking to mandate government discrimination against a particular subset of citizens based on a suspect classification, Proposition 8 is unlike any other initiative that has been enacted or even considered by California voters since the initiative process was first adopted." This is a big deal. I hope the Court treats it as such. (To read the full brief, go to http://www.nclrights.org/site/DocServer/CampaignPetition.pdf?docID=4321)

What a Ride It's Been!

I tried to blog yesterday, but the words wouldn't come. I was too ... elated ... exhausted ... disappointed ... confused .... Today, I am ready to share some of what I have figured out in the 36 hours since we elected Barrack Hussein Obama the next President of the United States and since California passed Prop 8, thereby eliminating the right of same-sex couples to marry, at least for this moment. First, a couple of practical updates: For those of you who married before polls closed on November 4, YOU ARE STILL MARRIED. Don't let anyone tell you differently. There was nothing in the language of Prop 8 that addressed the issue of retroactivity, since when Prop 8 was qualified for the ballot same-sex marriage had not yet been legalized in California. Our Attorney General has publicly stated he will protect your marriages, and even though the Yes on 8 folks are taking the position that passage of Prop 8 invalidated your marriages, they are not yet pursuing this position in court. So ACT MARRIED. Be as public and proud as you were on Tuesday. As Molly McKay said yesterday, on the steps of San Francisco's City Hall during the candlelight vigil, love loudly and with dignity. Be "love warriors." Wear your wedding rings with pride, and demand respect for your marriage as you would have if Prop 8 had been defeated. We will win this fight. Just not today. As far as Prop 8 itself goes, 3 lawsuits have already been filed. We are going straight to the Supreme Court, and while I haven't read the briefs my understanding of the argument is this: it changes the fundamental nature of our Constitution to allow the majority to vote to deny fundamental rights to a protected minority (which we are, by virtue of the Supreme Court's decision in the marriage case which explicitly named sexual orientation as a "suspect category" that merits special protection, along with race and religion). Such a fundamental change to our constitutional system of government cannot be made by a simple majority vote. We have brilliant lawyers working for us. 5 Million Californians voted for our families. Don't give up hope. Here's the part that kills me: On Tuesday at 8:05 p.m., I stood in my friends Kevin and David's living room in tears, watching as Barack Hussein Obama was declared the next President of the United States. The room was full, and there wasn't a dry eye in the house. We had no doubt that we were watching history. And here is who we were: a room full of devoted gay couples and our children; Black, Brown, Asian, Latino and Caucasian; Christian, Jewish and Buddhist. We were all in our late 40's and early 50's -- many of us old enough to remember when JFK was gunned down, when Martin Luther King was gunned down, when Bobby Kennedy was gunned down.... We hadn't felt the kind of hope we felt on Tuesday night in a long time -- maybe not ever -- and I wanted to revel in it. Instead, as news of Prop 8's projected victory trickled in, the mood so quickly soured to what can only be described as bittersweet. Wondrous but also disappointing. Complex, when simple joy had, for once, seemed possible. This is an amazing, historic moment in so many ways. Here are a few vignettes from my own experience of the last 36 hours. Please add your own.... I walked out of the house yesterday afternoon and almost ran into my neighbor Don, who was parking his car. He is 93 years old, retired military. Married forever. Almost deaf. We have never once spoken about marriage equality. He came right up to me, looking sad, and said "We lost." Just that. It took me a moment to realize he was talking about Prop 8. His use of the word "we" stays with me as a symbol of how much we have accomplished. My partner flew to Costa Rica late Tuesday night. She flew on Taca -- the Salvadoran airline. She sends me this note this morning: "In and around my attempts to sleep on the plane I was surrounded by lots of conversation about the rightness of Obama having been elected, and the rightness of Prop 8 having passed, all in Spanish, all Latinos, some US Citizens, travelling to countries throughout Latin America. The taxi driver this morning [in San Jose, Costa Rica] immediately asked if I had voted for Obama, and was thrilled that I had, and said 'He gives us all hope that anything is possible. After all, for someone with his background and history to become the President of the United States ... well it just gives us all hope that anyone can be President if they go for it ... anything is possible.'" That is the experience the world is having of our election. We should be very proud. And that is also evidence that in some communities, particularly deeply Catholic communities, and probably many immigrant communities, the concept of same-sex couples being allowed to marry remains completely foreign and disconnected from other "progressive" politics. I called my friend Wendy to get help with kid logistics for the weekend. She was furious. "What don't people understand?!" she demanded. She then pointed out that she is married to a man who is from Thailand, and her own marriage would have been illegal 50 years ago. It was the court that gave her the right to marry her husband, even though he is of a different race. She is completely offended by the passage of Prop 8, as if it had been about her. And she is not being quiet about it. My younger son, who has taken this fight very seriously, as I have noted before in this blog, is jubilant about Obama. He is stoic about Prop 8. He knows we will win. He is grateful to know that only one of the 9 Bay Area counties supported Prop 8. He is impressed that 5 Million Californians voted for equality for our family. As he says, "that's a lot of people!" He has learned important lessons about the political process in the past weeks, although I'm still not sure which ones.... As I wrote to my partner yesterday morning, in my own bleary-eyed post-election-night haze: "I still can’t believe that the President Elect of the United States is a brown man, the son of a Kenyan and a Kansan, raised in Hawaii by his grandparents, named Barack Hussein Obama. If that is possible, what isn’t??!!" Si se puede. Yes we can.

What Happens if Prop 8 Passes? What Happens if it Doesn’t?

I keep getting emails asking me “what happens to my marriage if Prop 8 passes?” In the spirit of informing my readership, I thought I would respond publicly here. NOTE: Below are my legal responses to the question. But before I don my lawyer hat, I have to say that this fight has been far uglier, and far more bruising, than I ever would have anticipated. The leadership of the NO on 8 campaign has fought for us with incredible passion, determination, and integrity, and I am deeply grateful to them. There are conversations happening every day -- on street corners, in grocery stores and, yes, in schools -- that I couldn't have imagined even 5 short years ago. No matter what happens tomorrow, there is no going back. Now, on to the law: If Prop 8 Passes: If Prop 8 passes, it is unclear how quickly it will go into effect. It also is unclear what impact its passage will have on same-sex marriages entered into in the months since same-sex marriage became legal in California. Both of these questions are likely to be answered through litigation; whether the courts will stay implementation of Prop 8 pending the outcome of such litigation is also unclear. So much for solid answers.... One thing is certain: If Prop 8 passes in California, it will be more important than ever for same-sex couples – and especially same-sex couples with children – to do diligence to make sure that their families are legally protected. This means making sure that you have done appropriate estate planning; making sure that you have complete and up-to-date advance health care directives; and making sure that where there are children involved, each parent has a clear legal connection to the children that isn’t dependent on recognition of the parents’ legal connection to each other. In other words, do not rely on marriage or domestic partnership to make you a parent. If your legal relationship with your child is predicated on recognition of your legal relationship with your partner, you – and your child – are legally at risk. Beyond that, for couples who married in California before Prop 8, there could be substantial complexity in figuring out your legal relationship in a post-Prop-8 world. In what senses are you still married? In what senses aren’t you? If you have health insurance or other benefits through your spouse, what happens to those benefits? Is community property still in effect? We will not know the complete answers to these – and other, similar – questions for weeks, months, and maybe even years after this election. But I promise to keep blogging, and keep giving workshops, to get the best answers out to you as soon as they are available. And I strongly advise staying connected to our community organizations, such as Our Family Coalition and NCLR and Equality California, for accurate information and updates. If Prop 8 is Defeated: (1) Have a big glass of champagne. We all deserve it. (2) Many of the same cautions listed above still apply. Unfortunately, even if Prop 8 is defeated, we still live in a world where more states have Defense of Marriage Acts (DOMAs) than not. You still need to do your estate planning, make sure you have advance health care directives, and make sure your relationships with each other and with your children are fully protected. Despite marital presumptions applying in California, these presumptions do not travel with you. Please celebrate, but don’t be lulled into complacency. Full equality will require sweeping change at the federal level, and we still have a long way to go. Sound pessimistic? Not at all. We are making history. We just can’t allow our families to be put at risk while we enjoy it. Now, stop reading this blog and GO VOTE!!!