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A Quick Roundup of #10thCircuit Hearing

After originally planning to attend the hearings, I was unable to make the trip. But I’m excited to write a little bit about the oral argument from afar. As we are awaiting the audio and transcripts of the argument, the re are a few quick resources that you may grab your interest.

First, RestoreOurHumanity had the livestream of the immediate response after the hearing completed. The audio feed gave me a few problems, but you will find some other interesting content in addition to the stored livestream. Hopefully that video will be corrected soon. Salt Lake’s Fox13 is also now live streaming their newscast with information from the argument.

The best place for instantaneous reaction from the oral argument was unsurprisingly twitter. I’ve been following the #10thCircuit hashtag, and it is certainly worth a few refresh cycles today. Reporter Ben Winslow, of Fox 13 tweeted that he thought the judges were leaning 2-1 in favor of marriage equality.

Winslow also has some comments in his feed from the plaintiffs, with Derek Kitchen stating that he is “humbled and proud” at the performance of his attorneys and the serious consideration that the three judges provided. For his part, Utah Attorney General Sean Reyes says that he apologized to the plaintiffs for their pain, but that it was his duty to defend the law.

April 10, 2014 at 11:05 am Leave a comment

Target Sues Marriage Equality Canvassing Organization

by Brian Leubitz

Last year, Target got into some hot water for donating $150,000 to an organization in support of anti-gay Minnesota candidate for governor Tom Emmer.  Apparently in their continuing effort to remind the LGBT communities to stay away from big box stores, they have followed up this week by singling out an organization, Canvass For A Change (CFAC) that is canvassing San Diego stores to talk about marriage equality.

In a court document, a Target official at the Poway store complained that CFAC volunteers were talking to customers about gay marriage, among other issues, and contended that they had received complaints from some customers who were upset by the topic.

Court documents also show that Target Corp. is worried that the company may be viewed as being for gay marriage if activist groups like CFAC are allowed to speak to their customers. (San Diego Gay and Lesbian News)

Now, the first defense that you will hear from every mainstream outlet is that Target just doesn’t like anybody outside their stores and that, heck, they even booted the Salvation Army.  (By the way, the Salvation Army is pretty anti-LGBT themselves.) Now, what you won’t hear is that they didn’t really boot the Salvation Army out, so much as paid them to go away. They give the Salvation Army a fairly sizable contribution every year.

There are two real issues going on here.  First, it seems that Target is, um, targeting this pro-marriage equality organization in a way that they aren’t for other organizations.  True, they do try to get rid of as many canvassers as they can outside of their stores.  But CFAC director Tres Watson says that the policy is not enforced uniformly at all, with Girl Scouts and veterans organizations tolerated, while CFAC is sued for an immediate injunction.

The other issues is the important nature of the first amendment freedom of speech issues.  Clearly if this were a Main Stree mom and pop store trying to sue an organization from setting up in the middle of the adjacent town square, they would be laughed out of court on first amendment grounds.  After all, we all have the right to speak our peace in that proverbial zone of free speech.   Yet unfortunately, there are few actual town squares left these days.  We just don’t live in an environment anymore where people cluster around the bandstand on Friday evenings.

Instead, we cluster around stores and strip malls, such as Target.  As the attorneys for CFAC have argued,  the strip mall is the new town square.  This is where people gather, and this is where you can speak if you want to get noticed.  This is how we confront issues facing our communities, through talking to each other.  And if we cut off this communication, we risk merely retreating to our own corners and further dividing our nation.

It turns out that the framers had it right on the First Amendment.  Now, of course you have to confront the issue of what if NOM or a similar organization were out there campaigning against equality? What would we say then? Well, for better or worse, organizations should be able to respectfully communicate a message.  Now, if they were to grow offensive or hostile, I think you have opened a different can of worms.

Now, the question for us a nation is how critical we think these First Amendment rights really are. Are they important enough to deal with on the way to stock up on paper towels and sporting goods? Ultimately, that is the question here.  I’m curious to hear what the P8TT community thinks on this issue from a practical standpoint.

March 26, 2011 at 3:00 pm 130 comments

GOP still hasn’t realized that Bryan Fisher’s a liability: Newt Gingrich edition

crossposted at Good as You

by Jeremy Hooper

For your pleasure: Just a couple of heterosexual men, spending their Fridays talking about how they can save the White House from the crush weight of tolerance:

REMINDER: This is the same Bryan Fischer who said “Homosexuals in the military gave us…six million dead Jews“. The guy who’s said “homosexuals should be disqualified from public office,” has called on Christian conservatives to breed gays and progressives out of existence, has called gay sex a “form of domestic terrorism,” who’s said only gays were savage enough for Hitler, has compared gays to heroin abusers, has directly compared laws against gay soldiers to those that apply to bank robbers, who once invoked a Biblical story about stabbing “sexually immoral” people with spears, saying we need this kind of action in modern day, who has spoken out against gays serving as public school teachers, has questioned why Medals of Honor are given to people who save lives (rather than take lives), who says that open service will “assign the United States to the scrap heap of history,” who recently commiserated with Bradlee ‘Executing homosexuals is moral’ Dean, and who has blamed gay activists for dead gay kids, saying that: “If we want to see fewer students commit suicide, we want fewer homosexual students“. The guy who said the only acceptable “culture war” trucewould have gays giving up their demand for equality. The guy who painted Native Americans as innately cursed because they “cling to the darkness of indigenous superstition”. The guy who conservative Christian Warren Throckmorton aptly noted is “to the right of Jerry Falwell” on some LGBT issues. The guy whose words pretty much single-handedly landed the American Family Association on the Southern Poverty Law Center’s hate groups list.

March 26, 2011 at 5:30 am 27 comments

Flash 9th Circuit Hearing Analysis: Standing, Romer, and the Word

Thanks to P8TT legal analyst and Calitics publisher Brian Leubitz for chiming in his legal analysis as the trial proceeded during today’s liveblog thread, and for sharing with us his longer take here.

By Brian Leubitz

As I do this sort of flash analysis, I want to start with a big, broad, general point here. Namely, while you can see possible avenues and ideas that may filter into a decision, focusing on “winners” is a sucker’s bet. Perhaps, if you take all the questioning as a whole, you end up with some tougher grilling of the opponents, but judges like to play devil’s advocate. Sometimes you can get a read, and sometimes you can’t.  Also, I haven’t really had the time to fully analyze each aspect of these arguments, so forgive me if I misread, or am just plain wrong, in places.

So let’s take a look at the meat of the issues, and see what we learned today.

Imperial County

The attorney for Imperial County, and Isabel Vargas, the deputy clerk of the county, took a real beating in the courtroom. Robert Tyler, of the Advocates for Faith and Freedom, a right wing anti-equality non-profit, came to the podium in front of a skeptical panel.

First, the court had an issue with the fact that the actual clerk of Imperial County was not a party to the attempt to intervene. Rather, Mr. Tyler represented Ms. Vargas, who only really has authority to act as an agent of her elected boss, Dolores Provencio. Erwin Chemerinksy, the Dean of UC-Irvine’s new law school, had this to say about the oral arguments:

If Imperial County can intervene and defend Prop. 8, then there would be no need for supporters of Prop. 8 to have standing to do so. But both Judge Hawkins and Judge Smith seem very skeptical of the authority of the deputy clerk to seek to intervene on behalf of Imperial County. Both stressed that the clerk is not seeking to intervene and a deputy clerk lacks the authority to do this. Judge Smith also has raised the issue of whether the clerk is a state officer or a local officer. If the clerk is a state officer, then the clerk would not have the authority to represent the state — only the governor and the attorney general can do so. The clear sense so far is that all three judges are very skeptical of allowing Imperial County to intervene. (LA Times)

Of course, the question of Imperial County really only becomes important if the Court decides that the proponents do not have standing. But the Imperial County claim looks like something of a long shot at this point, or at least not something you would want to be pinning your hopes on.

Standing of the Proponents

This is where some unexpected wrinkles came up in the oral arguments. Namely the possibility of the “certification” of a question to the Supreme Court of California. But let’s back up a step.

In the questioning of David Boies, Judge Smith (the lone Republican appointee on the panel), asked him whether the failure to defend Prop 8 was a “nullification” of the efforts of the proponents and the choice of the voters in a way that was akin to a “veto” by the elected state leaders. Of course, a veto of an initiative is not allowed under the Constitution. So, conflict? (Here’s where I’m hearing an ominous duh-duh-duh in my head.)

Well, not really. Boies points out that the California Supreme Court was in fact asked whether Brown and/or Schwarzenegger were legally obligated to defend Prop 8. And, in fact they were asked by the “Pacific Justice Institute” exactly that question. PJI was first denied by the the 3rd District, and later by the California Supreme Court.

There is a process for appellate courts to ask state courts a question about state law, called certification. Basically, they “certify” a question, and the state supreme court can answer it. It would delay the process substantially, and given the quick dismissal of the PJI attempt to get Brown to appeal, doesn’t really seem either necessary or worthwhile. Essentially, the state supreme court has spoken on this issue by failing to force the appeal.

However, if the panel really felt strongly on this subject, they could go to the State Supreme Court. We would probably hear about that fairly soon. But, really, don’t expect that.

Returning to the main issue, the ball game was essentially played on the field of Arizonans for Official English, with various cases modifying it. The court was essentially trying to figure out if there a) had ever been a case where a proponent was deemed to have standing and b) if this should be that first case.

Charles Cooper, the attorney for, eventually relented that there was not such a case. However, he then went on to say that the Strauss decision, where the state Supreme Court upheld Prop 8, was an example of just that in the state court. There, Brown and Schwarzenegger once again refused to defend, but the proponents had standing as defined by the California Supreme Court.

Now, Article III standing isn’t the same thing as California standing, there is different jurisprudence on that. However, the admission that there was no case makes the proponents request a question of novel law. Now, that’s not to say that they can’t win on this question, but it does underscore the big question mark on this issue.

The Substance

After all the process of the first hour (plus 15 minutes), it was on to the meat and potatoes of the due process and equal protection claims. One interesting initial point was that both sides seemingly dropped the question of intermediate or strict scrutiny. Ted Olson briefly mentioned that he think that it could apply, but the substance of his remarks all stuck to the question of whether there was a “rational basis” for Prop 8.

I think there were a couple of specific points that attracted most of the attention, the Romer case, and this question of the “word”.

The “Word”

Judge Smith focused a couple times on whether the State of California was in a worse position for having passed Prop 8 because it has given all of the same rights and privileges under the auspices of the domestic partnership statute. In other words, if we are only fighting over a word, and no substantive differences at the state level, aren’t we essentially creating a subclass? And roughly transcribed, here’s what Cooper said:

Cooper: The word is the institution. If you redefine the word, you change the institution.

I actually think this was a big moment of the oral argument. It said that yes, the anti-equality forces were there only to “put down” gays and lesbians, or as San Francisco Deputy City Attorney Therese Stewart said (again, this is my rough notes here):

If the word is the institution, then the argument is just that gays and lesbians would “stain” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause. Taking these components together, it infers animus.

If we only passed Prop 8 to show that same-sex couples aren’t as good, or as worthy as other couples, then isn’t the equal protection argument plain to see? It reveals the naked schoolyard taunting aspect of Prop 8. Nah-nanny-boo boo, you aren’t as good as me. And frankly, nanny-boo-boo isn’t a valid use of state authority.


Romer v Evans struck down Colorado’s Amendment 2, which barred local governments from recognizing gays and lesbians as a protected class, as the City of Denver had done earlier in the decade. In the decision, Justice Kennedy said that the law denied LGBT Coloradans the protection of the law in an impermissible way. It was so broad as to “confound” judicial review and that Amendment 2 was raised of animus. Or as Kennedy put it:

[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected…

Cooper argued that the legislation at issue in Romer was so broad that it couldn’t be constitutional, whereas this was just one issue, the word “marriage.” Judge Hawkins pressed Cooper, saying that the removal of rights, especially this right, put it back in the Romer territory. This issue of the removal of rights looks likely to come up in the decision, if the court does reach past the question of standing.  The question just seems too large, and too conflicting with prior law, to not be a major part of the decision.  And generally, that’s a good thing for equality.

Who wins?

So, can we predict a winner from the argument today? Well, I go back to my initial statement, it is hard to tell from an oral argument alone. If you really pushed me, I would say that the plaintiffs would be the favorite at this point. The duel questions of standing and whether the court could really find a rational basis hang in the air. And I’m not sure that Cooper satisfactorily answered either.

December 6, 2010 at 4:15 pm 108 comments

Whistlin’ past the trial: Legal analysis of Prop 8 team’s Opening Brief (Part Two)

(Click here to read Part One of this two-part legal analysis, a must-read by Brian Devine, who is Brian Leubitz’s husband and a fellow legal analyst for the Prop 8 Trial Tracker. Also, check out the comment thread on Part One, as several Trackers make edifying points of their own about the brief. — Eden)

by Brian Leubitz

Brian already discussed the standing and jurisdiction arguments in Part One, and frankly, as an attorney, those arguments really shocked me the most in this brief. I’ll not go back over them, but when I read it I was, quite literally, laughing out loud. I had to read it a couple of times, and Brian didn’t really believe me that they were really making the jurisdiction argument. Make it they did though.

The brief is long. Very long. 134 pages including the tables, 113 pages from introduction to conclusion. The Court defines a page limit, but those are traditionally relaxed when asked. But, when you are turning in briefs this long, you might want to consider whether every word of this thing is necessary, but that doesn’t seem to have been a big issue for the Prop 8 Crew. Nonetheless, let’s take a look at the argument on the merits.

Whistling Past the Trial

From a 30,000 foot view, there is one theme to their substantive arguments: the trial didn’t happen. Oh, sure they acknowledge that it physically happened, but the evidence that was presented there, wasn’t convincing, the decisions all wrong. You think there was evidence that Prop 8 was discriminatory? No, not really. You think there was evidence that showed Prop 8 harmed gays and lesbians? No, not really. That it harmed the children of gays and lesbians? Nope. That it didn’t harm straight marriages? No, didn’t happen.

Generally, findings of fact are due deference. In many trials, these are the decisions that the jury will make. But, as this was a bench trial, the judge was the fact-finder. He determines credibility, and what he found believable. However, Cooper, Pugno, and the gang dispose of that pretty quickly:

Although the district court ruled that Proposition 8 is irrational, that court neither complied with established principles of rational basis review nor meaningfully engaged the legal authorities and evidence before it. Furthermore, the purported findings on which its decision turns involve issues of legislative fact. For all of these reasons, the district court’s findings are entitled to no deference from this court. (Intervenor Brief at 32)

Now, this is a pretty huge simplification, and really, not true so much. Findings of legislative fact are not sacrosanct, no matter who makes them. While judges’ findings of fact are, in practice, given a little less deference, they are still given considerable deference. They aren’t so casually disregarded, and they have to be clearly erroneous to be tossed aside.

Moving beyond the finding of facts, as we discussed during the trial, the first question is what standard of review will be used. Judge Walker ended up going with two different standards of review. For the due process claim, which goes to the issue of the fundamental right to marry, Judge Walker said that Prop 8 was subject to strict scrutiny. However, the intervenors argue that the right to marry is fundamental only between members of the opposite sex. So, you know, no strict scrutiny for you.

This is sure to be an issue of considerable disagreement come our sides’ brief. The right to marry has been determined to be fundamental under the due process under Loving v. Virginia. However, describing this as not applying to same-sex marriage is just as bizarre as saying that practicing Worship of the Spaghetti Monster isn’t protected under the right to free exercise of religion. It may not be the norm, but rights aren’t defined for simply the majority, but also to protect minorities.

Equal Protection

Now, this is where the heart of Judge Walker’s decision lies. By saying that it doesn’t pass rational basis review, the question of due process strict scrutiny, or even the equal protection level of scrutiny, becomes a lot less important. As we’ve mentioned in the past, rational basis review is the lowest level of review, and means that the state need only a rational basis to enact the law, and that the law need only a rational connection to the stated “rational” goal. In the decision, Judge Walker states that he believes legislation based upon orientation should be subject to strict scrutiny, but that because he found that Prop 8 didn’t stand up to rational basis, it didn’t really matter all that much. (Decision at p. 122)

Here, the Proponents argue once again that any “debate” whatsoever means that there is a rational basis. The proponents have highlighted 6 “interests” that give the state a rational basis. But, a plethora of evidence at the trial showed these reasons simply to be based in prejudice an innuendo, without any basis in fact. As Judge Walker stated, “Tradition alone, however, cannot form a rational basis for a law,” citing Williams v Illinois, a 1970 Supreme Court decision. Reason after reason are simply thinly veiled forms of prejudice.

Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the Equal Protection Clause because it does not treat them equally. (Decision at 132.)

Throughout the entirety of their brief, all we see is an attempt at replaying the trial, as if it never really occurred. Unfortunately for the proponents, the trial did occur. In the end, this is where we are likely to see the real action of the appellate decisions, but there isn’t a lot of new information for the court in this brief.

It will be an another anxious month as we wait to hear from the AFER attorneys next month in the reply brief.

September 19, 2010 at 12:38 pm 263 comments

Legal analysis of Prop 8 team’s Opening Brief: Part One (Standing and Jurisdiction)

By Brian Devine

As a team effort with my husband, Brian Leubitz, we will attempt to provide some initial legal analysis of the Opening Brief filed by the Proponents of Prop. 8. I am writing about the issues of standing and jurisdiction. Brian Leubitz will provide an analysis of the Proponents’ arguments about the merits of Judge Walker’s decision.


The Ninth Circuit specifically ordered the Proponents to show why they have standing to maintain this appeal. (See a detailed discussion of standing here. But in short, it means “What gives you the right to maintain this appeal?”) Specifically, the Court ordered the Proponents to address the case of Arizonans for Official English, the Supreme Court case that held that ballot initiative proponents do not have standing to defend the constitutionality of the law passed by their initiative.

The Proponents begin their argument by ignoring Arizonans for Official English and instead focusing on Karcher v. May, a 1987 US Supreme Court case (484 U.S. 72). In Karcher, a New Jersey statute expressly gave the Speaker of the Assembly the right to defend the constitutionality of a law when the state’s Attorney General refused. California has no such law, and California certainly has no law authorizing the proponents of a proposition to defend the constitutionality of a law. Nevertheless, Proponents argue that they have been appointed by the State of California to defend Prop 8 because the California Supreme Court, in Strauss v. Horton, allowed them to intervene in the state-court challenge to Prop 8.

This argument is laugh-out-loud ridiculous. In Strauss v. Horton, standing for the appeal was already established because Karen Strauss and the other plaintiffs were directly injured by being denied the right to marry the person of their choosing. The Proponents did not have to show that they had the authority to maintain an appeal for one very simple reason: they were not maintaining an appeal. So it’s wrong for the Proponents to now argue that the Court allowing them to intervene in a case in which standing was already established is the same as the New Jersey statute in Karcher that expressly allowed the Assembly Speaker to defend the constitutionality of a statute on appeal.

The fact remains that no law exists that gives the Proponents any legal right to defend the constitutionality of Prop 8. That’s why the Ninth Circuit specifically ordered the Proponents to address the Arizonans for Official English case.

Arizonans for Official English involved a constitutional challenge to an Arizona ballot initiative that declared English the official language of Arizona. The District Court held that the statute was unconstitutional, and the State of Arizona did not appeal. AOE, the official proponents of the ballot initiative, attempted to step in and defend the constitutionality of the law by pursuing an appeal of the District Court’s decision. Sound familiar? The Court’s decision that AOE did not have standing to appeal the District Court’s decision is short and simple:

Petitioners’ primary argument–that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored–is dubious because they are not elected state legislators, authorized by state law to represent the State’s interests. Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, and absent anything in Article XXVIII’s state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article’s constitutionality in federal court. . . . (Citations omitted.)

In the end, we can think of the standing issue like this: the Proponents are a square peg that the Ninth Circuit has to fit somewhere. The Ninth Circuit may, as the Proponents argue, try to shove that square peg into the round hole that is Karcher by finding that the Proponents are similar to the Speaker of the New Jersey Assembly who was expressly authorized by a New Jersey statute to defend the constitutionality of a law. Alternatively, they could easily slide the square peg into the square hole that is Arizonans for Official English by reaffirming the long-held doctrine that proponents do not have standing to defend the constitutionality of a ballot initiative that they sponsor.

The Court already has expressed its concern that the Arizonans for Official English case prohibits them from having standing. The Proponents’ arguments about Karcher likely will do nothing to convince the Court otherwise.


Be sure to have a big bucket of popcorn for the oral argument on this issue. Their argument could be easily ripped to shreds by anyone who’s taken a high school Government class, so Ted Olson and the three judge panel will positively cream the Proponents here.

They argue that Judge Walker exceeded his jurisdiction by issuing an injunction that affects people other than the Plaintiffs who filed the lawsuit. They claim that the only way an injunction could apply to others is if a class was certified. In other words, they argue that in deciding Brown v. Education (in which a class was never certified), the Court did not have the authority to broadly strike down all laws that segregated schools based on race; instead, it only had the jurisdiction to narrowly order that the 20 children who brought that case be admitted to the Topeka school. They argue that in Loving v. Virginia (in which a class was never certified), the could did not have the authority to broadly strike down laws prohibiting interracial marriage; instead, it only had jurisdiction to allow Richard Loving to marry Mildred Jeter. All other interracial couples were on their own and had to file their own lawsuits.

In making this argument, Proponents attack the principle of judicial review, something that every high school student learns is the bedrock principle of the judicial system and one of the key “checks and balances” that makes our constitutional government work. Since the Supreme Court decided Marbury v. Madison in 1801, courts have been empowered to declare that a statute violates the Constitution. And they almost always do this without ever certifying a class.

So if the Proponents are taking aim at the bedrock principle of our judicial system, they must have marshaled a vast body of cases that support this radical argument, right? Well, they rely entirely on one case. And, uh, the Ninth Circuit has already said that that one case doesn’t apply to this situation. The Proponents rely on Zepeda v. INS, a case in which the Ninth Circuit held that when issuing a preliminary injunction that applies to parties not before the Court, it must certify a class first. But Judge Walker did not issue a preliminary injunction; he issued a permanent injunction. (Without digging too far into this, preliminary injunctions are subject to a heightened standard because at the time it issues, the case has not yet been decided on its merits.) The Ninth Circuit has held that, without question, Zepeda doesn’t apply in the case of a permanent injunction like the one Judge Walker issued. (Bresgal v. Brock, 843 F.2d 1163) Instead, Judge Walker has full authority to strike down a law in its entirety and without ever certifying a class, just like in Brown v. Board of Education and Loving v. Virginia, and every other case where a court has exercised its power of judicial review.

Nothing destroys credibility quicker than making a frivolous and poorly researched argument like this.

September 18, 2010 at 1:30 pm 363 comments

Arnold Schwarzenegger: “Gay friendly governator” or frenemy? You be the judge.

by Brian Leubitz

In their Opinion LA blog, the LA Times calls Governor Schwarzenegger “the gay friendly governator.” Sure, he has recently been getting a lot of respect for declining, repeatedly, to get involved on behalf of Proposition 8. But how much is that worth?

Here’s the Times take on the issue:

Who could have called it in 2003: Arnold Schwarzenegger, the body-building terminator who originally showcased his brutish masculinity as a campaign centerpiece and once called Democrats “girlie men,” could go down in history as California’s most gay-friendly governor to date. Sure, Schwarzenegger’s done more for gay men and women when he’s done nothing: Though he vetoed then-Assemblyman Mark Leno’s bill to legalize same-sex marriage in 2005 (legislation that was almost certainly illegal under Proposition 22), he and Atty. Gen. Jerry Brown have refused to defend Proposition 8 in federal court.

This is in the context of a bill, AB 2199, that would delete from the state law books an official policy of curing homosexuality that recently passed out of the Legislature and is now heading for the Governor’s desk. He’ll likely sign the bill, as, truthfully, it isn’t all that controversial. It sailed through both houses, with but one dissenting vote. The one vote would be the anachronistic and bigoted Assemblyman from San Diego, Joel Anderson.

It is great that Arnold has been on our side in the last few years. But, he has never been willing to put any of his own political capital on the line. Instead, he’s content to wait it out. He vetoed the Harvey Milk Day bill before signing it. And with Mark Leno’s marriage bills, he ran for the hills. His rationale was that somebody, the judges, the people, anybody but him, should say something first. Regardless of whether he thought Prop 22 was unconstitutional back in 2005 or not, he was not willing to take the lead by just signing the bill. If marriage inequality was odious to the constitution 6 months ago, it was odious in 2005 as well. Would it have stirred up some controversy? Most definitely. But real leaders have a tendency to do that.

Or perhaps he could have expended a bit of energy in 2008 campaigning against Prop 8? He did make a token endorsement of Prop 8, but beyond that was out of the picture.

But, LGBT issues go beyond the single issue of marriage, and on transgender rights he hasn’t been quite so good, even of late:

On 12 October 2009, California Governor, Arnold Schwarzenegger, fell short of ensuring full protection of LGBTQ people in the California’s prison system. Choosing to veto the LGBT Prisoner Safety Act (AB 382, Ammiano) and the Equal ID Act (AB 1185, Lieu), he has failed to cement two crucial policies into law. Needless to say, the LGBTQ community has been failed, and must now overturn the Governor’s cruel and unusual decision.

First and foremost, the Governor’s reasons for vetoing the LGBT Prisoner Safety Act (AB 382, Ammiano), was due to the fact that California’s prison system already takes gender identity and sexual orientation into account when housing prisoners. Whilst that is very likely the case, GLBTQ inmates shall remain vulnerable until this becomes actual law. Until then, human rights violations may continue.

As for the vetoing of the Equal ID Act (AB 1185, Lieu), the Governor’s reasons were similar. Thanks to a past landmark victory, Somers v. Superior Court, it had already been ruled unconstitutional to deny transgender inmates the right to petition a gender change. Despite this fact, the Transgender Law Center asserts that the “Equal ID Act would have alleviated any confusion in the statutory language itself.” (Examiner blogs)

These veto messages are hardly the stuff of civil rights heroes. You hope, you think gender identity is considered in jails and prisons? Well, that might be nice in theory, but in reality the situation isn’t quite so smooth. Transgender prisoners face very difficult conditions in the prisons, and very little extra caution is given to them.

In the end, I find it difficult to call this Governor gay friendly. Real friends are there for you, good times or bad. This one swoops in when the tide is clearly turning. At best, I would call him a frenemy. But let’s hear your take. As we approach the election in November to replace him, what do you think of California’s current Governor?

August 28, 2010 at 8:00 am 101 comments

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