Archive for March, 2009

Huffington Post

Tuesday, March 31st, 2009

Evan Wolfson
Executive Director of Freedom to Marry, and author of Why Marriage Matters
Posted March 30, 2009 11:27 AM (EST)

Will the California Supreme Court Strike Down Prop 8, or “Willy-Nilly Disregard” Its Duty?

If the March 5 oral argument before the California Supreme Court was any guide (which oral argument isn’t always), Chief Justice Ronald George may be on the verge of making a terrible, heartbreaking mistake.

The Court is due to rule soon on a set of challenges to Proposition 8, the November ballot-measure that stripped the freedom to marry away from committed same-sex couples. The challenges are supported by preeminent African-American, Hispanic, and Asian/Pacific civil rights organizations; cities such as San Francisco and Los Angeles; teachers and child-welfare professionals; religious leaders; businesses and labor unions; and advocates for same-sex couples and their families. All of them have asked the Court to uphold the bedrock principle of American constitutional government that a simple majority may not selectively vote away a fundamental right from a minority targeted for invidious, suspect reasons.

Most who saw the oral argument perceived Chief Justice George and Justice Joyce Kennard as straining to justify their apparently likely votes to uphold Prop 8. Their barrage of hostile questions and comments suggested that the civil rights advocates were asking the Court to, in Justice Kennard’s words, “willy-nilly disregard the will of the people.” But in fact the Constitution — itself the “ultimate expression of the people’s will,” as Chief Justice George recalled in 2008 — spells out two separate procedures for change: one for ordinary “amendments,” the other for more significant “revisions” such as Prop 8. Revisions, the Constitution says, require a more deliberate, careful process including review and a greater-than-mere majority vote by the Legislature before a measure is placed on the ballot. The Prop 8 forces chose not to follow the rules, including the constitutional safeguard against willy-nilly votes mandated, yes, by the people themselves. Indeed, shortly before the argument, the Legislature passed a resolution urging the Court to strike down Prop 8 because the Prop 8 forces in their zeal deprived the Legislature of its constitutional responsibility to review the measure.

The Court has the duty to strike down Prop 8, a measure that, while it received a narrow majority, should not have been on the ballot in the first place. The Court should explain that the interests of all of us, even a temporarily disgruntled majority, are better served when the rules are upheld. The Court should remind the public that, as the U.S. Supreme Court has said, “There is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.” That restraining principle is an essential pillar of equal protection. The very idea that the Court would permit a simple majority to even inadvertently discard such a defining element of the Constitution is distressing.

But, shockingly, the Chief Justice spoke as if his hands were tied by the mere fact of the November vote, the legitimacy of which is the very issue before the Court. He did not explain that equal protection at a minimum obliges the majority to itself abide by whatever treatment it imposes on a minority — a core structural principle eviscerated by Prop 8, which removed the fundamental right to marry for the gay minority alone while retaining that precious right for the majority. Rather, Chief Justice George appeared to profess helplessness in the face of precedents on how to distinguish a revision from a mere amendment. However, it was the Court itself that set those precedents, which themselves did not preclude logical extension should an unprecedented situation require further vigilance. As Justice Kathryn Werdeger and other justices noted, Prop 8 is exactly such an unprecedented assault. To build on and beyond precedents where warranted is why we have judges, not just law books.

Never before has the Court allowed a fundamental right to be voted away from a targeted minority. Never before has the Court taken the invitation of a lawyer, such as Prop 8′s Ken Starr, to set a precedent that, as Starr repeatedly conceded, would put no state constitutional limitation on a future majority’s ability to vote away protections against race or sex discrimination or cherished freedoms such as speech, worship, or, yes, the freedom to marry — the “essence” of which, the California Supreme Court explained in 1948 when it became the first court in the U.S. with the courage to strike down race restrictions on marriage, is the right “to join in marriage with the person of one’s choice,” the person who to you may be “irreplaceable.” Imagine what California and our country would look like today had that court flinched in the face of the 90% disapproval of the then-majority. Imagine what the Constitution would look like if a mere majority could always cement inequality or a selective denial of fundamental rights into it, without even the procedural protection of the deliberative revision process the people themselves set forth.

As destructive and tragic as a new precedent upholding Prop 8 would be, however, that’s not even the potential mistake to which I referred at the beginning. Chief Justice George’s and Justice Kennard ‘s exchanges at oral argument suggested that they may be about to minimize their own ringing and legacy-shaping 2008 Marriage Cases opinions, apparently as a way of avoiding the obligation to follow through and strike down Prop 8. They seemed to suggest that the selective stripping away of marriage was not all that significant, that because same-sex couples still would have partnership rights, their forced exclusion from marriage was a matter of mere “nomenclature.” This was the most unkindest cut of all.

Hearing dismissive characterizations such as “nomenclature” during oral argument, it was hard to believe that here was the same courageous judge’s judge who less than a year ago wrote the following in Marriage Cases [emphasis added]:

“Because of the long and celebrated history of the term “marriage” and the widespread understanding that this term describes a union unreservedly approved and favored by the community, there clearly is a considerable and undeniable symbolic importance to this designation. Thus, it is apparent that affording access to this designation exclusively to opposite-sex couples, while providing same-sex couples access to only a novel alternative designation, realistically must be viewed as constituting significantly unequal treatment to same-sex couples.”

“[P]articularly in light of the historic disparagement of and discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships whereby the term “marriage” is denied only to same-sex couples inevitably will cause the new parallel institution that has been made available to those couples to be viewed as of a lesser stature than marriage and, in effect, as a mark of second-class citizenship.”

“[R]etaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.”

“[A]lthough the meaning of the term ‘marriage’ is well understood by the public generally, the status of domestic partnership is not. While it is true that this circumstance may change over time, it is difficult to deny that the unfamiliarity of the term ‘domestic partnership’ is likely, for a considerable period of time, to pose significant difficulties and complications for same-sex couples, and perhaps more poignantly for their, that would not be presented if, like opposite-sex couples, same-sex couples were permitted access to the established and well-understood family relationship of marriage.”

The Chief Justice was right in Marriage Cases when he wrote these and other similar passages, and would be horribly wrong now to trivialize or turn away from them. It is no answer to say that Prop 8 changed the Constitution; the very question before the Court is whether such a profound revision withdrawing equal protection and a recognized fundamental freedom is permitted.

At various civil rights moments in American history, the courts’ vital role in enforcing equal protection, and judges themselves, have come under tremendous pressure. Recall, for instance, the “Impeach Earl Warren” billboards following Brown v. Board of Education, the vitriol against the California Supreme Court when it had to strike down a 1964 constitutional change that undermined protections against race-discrimination, and the Rovian campaign of intimidation waged against so-called “activist judges” these past 8 Bush years. Its shining moment in standing up against such intimidation, in addition to its right result on marriage and equal citizenship for lesbian and gay Americans, was why I and millions cheered the Court’s courage and clarity in 2008. In Marriage Cases, we saw a court do its job, and do it right.

Unlike right-wing opponents of equality, who denounce and seek to punish courts for doing their job, I criticize only when they flinch or fail to do it. If the Court, and if this Chief Justice, vote to uphold Prop 8′s damaging blow to American constitutional principles, it will be a terrible mistake, failing their obligation under and to the California Constitution. If in so doing, they compound that mistake by selling short, or sidling away from, the truths set forth so powerfully in Chief Justice George’s 2008 ruling — the fundamental nature of the freedom to marry, the way in which exclusion from marriage itself denies equality and imposes the stigma of second-class citizenship — they will do a powerful disservice to the people, to the Constitution, and to history, which for the moment still ranks them alongside the judges who struck down race discrimination and the subordination of women in marriage in the face of the passions of the moment, and were vindicated. Failure of judgment and duty now will tarnish their own legacy, wreak real harm on gay people and their loved ones, and shatter the faith of millions in the courts and their legitimate and crucial role in our constitutional system.

To be remembered, after all, for these missed stakes, would be heartbreaking.

Los Angeles Times Editorial

Saturday, March 28th, 2009

Gay marriage on the march
Legislatures in Vermont and New Hampshire are poised to legalize same-sex unions.
March 28, 2009

Vermont and California appear to be sliding in opposite directions these days, and we’re not talking about tectonic plates. As the institution of marriage undergoes seismic shifts, Vermont is moving from civil unions for same-sex couples toward full marriage, while the California Supreme Court is weighing whether to uphold Proposition 8, which stripped marriage rights from gay and lesbian couples.

The court also will decide whether to uphold the marriages of an estimated 18,000 same-sex couples who tied the knot before Proposition 8 passed in November. It’s generally unwise to place bets on rulings based on what’s said during a hearing — justices are notorious for playing devil’s advocate as a way of testing their leanings — but during the arguments on Proposition 8, no real support was voiced by the court for ending marriages that were entered into legally and in good faith. Though the constitutional amendment says simply that the state will recognize only marriages between a man and a woman, it does not make the requirement retroactive.

Opponents of same-sex marriage could bring another initiative forward to end those marriages, but considering that Proposition 8 passed with a modest majority, it is unlikely that California voters would be willing to rescindthe marital status of lawfully wedded couples.

State recognition of those marriages, though, would open doors to complicated new lines of argument. Same-sex marriage has been legal in Massachusetts for nearly five years, and for a much shorter time in Connecticut. Those marriages also were conducted legally and in good faith, and until Proposition 8 passed, they were recognized here. Can that recognition be withdrawn retroactively? If more such couples move into this state, as a practical matter Proposition 8 will be weakened, as well as being seen as conflicting with reality.

Two groups already have permission to gather petitions for initiatives to overturn Proposition 8, though polls show that these might be politically premature; the state is nearly evenly split on the subject, numbers that will surely change as more young people, who strongly support same-sex marriage, become voters.

The Vermont Senate passed the new gay-marriage legislation on a commanding 26-4 vote, and the House is expected to approve it as well. Gov. Jim Douglas says he will veto it; it is unclear whether the two houses have enough votes to override. But the New Hampshire Legislature quickly followed its neighbor, with the state House voting narrowly Thursday for same-sex marriage. No matter which way the California Supreme Court rules, the campaign to give equal marriage rights to gay and lesbian couples — and the slow but building acceptance of these couples — is inexorable.

Update: March 26, 2009

Friday, March 27th, 2009


MARCH 26, 2009

There has been a lot of coverage given to the additional complaint that we filed last week with the Californian Fair Political Practices Commission (FPPC) against the Church of Jesus Christ of Latter-day Saints (Mormon Church). Along with the complaint, we released and posted 11 secret Mormon documents on our new web site: These documents detail how the Mormon Church operated using a “front group” in Hawaii to lead the effort to pass that state’s Constitutional Amendment banning same-sex marriage, just as they did in California with Prop 8 last year.

We have included (below) an excellent column in today’s Salt Lake Tribune by Rebecca Walsh and wonderful story by Susan Ferriss from the Sacramento Bee, and links to many more newspaper, TV, radio, wire service and blog stories.
Also below, are two nasty attack pieces against the media and me by the #1 and #2 top people at the
National Organization for Marriage (NOM). One is a Blog posting by NOM President Maggie Gallagher and the other as part of a fund-raising email from NOM Executive Director Brian S. Brown.

He refers to me as “sad, pathetic and disturbing,” because I am trying to help determine the truth about how much money the Mormon Church put in to pass Prop 8 – there is no telling how much they actually spent. He then accuses me of living in a “sad, strange, narrow world.” Thanks, Brian. Think the personal attacks are uncalled for, particularly after earlier calls by you and your client, the Mormon Church, for “respect and civility,” and to “rise above the hate.”
Brian, let’s please have that “civility and respect” and an apology for all your mud-slinging would be nice.

And, Maggie, you blogged some pretty harsh words about our fight for equality and civil rights. And your mean-spirited words directed at our fine and honest leaders were uncalled for. I would hope that you would join Brian and apologize as well.


We believe that we have solved the puzzle of where in the hell the National Organization for Marriage (NOM) sprang up from. NOM suddenly appeared in the summer of 2007, just in time to qualify Prop 8 for the ballot, where two years earlier, two separate attempts to qualify a similar Constitutional Amendment to ban same-sex marriage in California failed. The brand new start-up NOM raised an impressive $2 million to hire all the professional signature gatherers necessary to collect the 1.1 million signatures to put Prop 8 on the ballot.

Now NOM is leading the charge to defeat same-sex marriage in 7 Northeast states. They still refuse to tell us where all the money is coming from. Brian Brown left a six figure job and free car as Executive Director of the Family Institute of Connecticut to run the day-to-day operations at NOM. Is the Mormon Church paying you directly, Brian? Or is one if their affiliates?
The Mormon Church just got caught in Illinois, see Box Turtle Bulletin story by Jim Burroway (
click here), for having its members lobby state representatives directly to defeat a Civil Unions bill. Now it sure appears that they are having NOM do it for them around the country to try and salvage their reputation.

The Salt Lake Tribune
Walsh: LDS elders showed seasoned political savvy on California’s Prop. 8

Rebecca Walsh

Tribune Columnist
03/26/2009 10:43:44 AM MDT
At post-election rallies in California, protestors passed out IRS complaint forms.
The paperwork for reporting a tax violation by a nonprofit was already filled out — with The Church of Jesus Christ of Latter-day Saints’ name and address. People simply had to sign the bottom.
The Internal Revenue Service ultimately will decide whether the Mormon church crossed a line in U.S. tax law when it funneled at least $190,000 of its own resources and directed individual members to give and give often in the $83 million campaign to ban gay marriage in California.
I doubt it. South Temple and their attorneys are too careful for that.
Documents leaked to Californians Against Hate show in fascinating detail the calculated way Mormon spiritual leaders spearheaded Hawaii’s gay marriage fight 10 years ago. The handful of memos from then-Elder Loren C. Dunn to various members of the Quorum of the Twelve Apostles reveal a political machine within a patriarchy of faith:
Richard Wirthlin, not yet a general authority, polled the relative popularity of Mormons versus Catholics. When results showed Catholics had a better image in Hawaii, Mormon leaders decided to stay in the background. They hired a Hawaiian advertising firm, McNeil Wilson, on a $250,000 retainer. They tacked on gambling and legalized prostitution to give the anti-marriage front group “room to maneuver in the legislature” and “broaden our base and appeal,” Dunn wrote. They searched for an “articulate middle-age mother” who was neither Mormon nor Catholic to be the face of the campaign.
The documents are old — mostly updates and memos dated between 1995 and 1998. And the church won’t say they’re real or acknowledge they were leaked.
“We are unconcerned about these documents,” says spokesman Scott Trotter. “The Church’s position on the importance of traditional marriage has been consistent over the years.”
There’s no reason to think the internal political organization built by Dunn and Wirthlin and others has been dismantled. If anything, the political fight to amend California’s constitution shows LDS elders have learned from their mistakes and honed their campaign strategy. Rather than financing the crusade themselves as they did in Hawaii, giving $400,000 in church funds, leadership decided to call on members nationwide for financing.
Californians Against Hate Director Fred Karger is trying to make the case that the Mormon church violated California’s Political Reform Act by obscuring the institutional money spent on advertising, phone banks and sending elders to the state to supervise and rally the faithful.
“They started this in 1988, putting together this plan to bring the church into a major role in opposing same-sex marriage,” he says. “You kind of have a boilerplate.”
Aside from financial disclosure discrepancies, the IRS is another matter. U.S. tax code prohibits churches and other nonprofits from spending “substantial” amounts of money on lobbying. Ultimately, IRS investigators will decide whether the Mormon role in Yes on 8 qualifies as substantial.
Watching from a distance, Salt Lake City tax attorney Bill Orton doesn’t think so.
“I can’t imagine that [church attorneys] Kirton & McConkie would miss something in tax law,” says the faithful Mormon and former congressman. “I would not have injected the church into [the Proposition 8 fight] to the extent that they did. But I don’t see that they’ve done anything unlawful. I don’t think the church is in any trouble whatsoever.”
Legal or not, the handful of documents Karger has posted at reveal the dual roles played by Mormon leaders. For faithful church members who still see the apostles as simple grandfatherly gurus of the spiritual, this is an awakening.
They’re also canny political hands.

Gay-marriage supporters lodge new complaint against Mormon Church
By Susan Ferriss

Saturday, March 21, 2009
An additional complaint about the Mormon Church’s support for Proposition 8 rolled into the state’s Fair Political Practices Commission this week.

Roman Porter, the FPPC’s executive director, confirmed Friday receiving a request for more investigation — with links to alleged Mormon insider documents — from Fred Karger of the group Californians Against Hate.

Karger’s complaint, dated Thursday, asks the commission to look more deeply into whether the Church of
Jesus Christ of Latter-Day Saints spent far more staff time and money on Proposition 8 than officially disclosed. The complaint will be added to the original complaint Karger filed last November about the Mormon Church, Porter said.

Karger accuses the Mormon church of setting up the National Organization for Marriage in 2007 to work to qualify Proposition 8 for the November 2008 ballot in California. The group “came out of nowhere,” Karger said, “and all of a sudden it began raising big, big money.”

Karger said the alleged insider documents he obtained — he would not say from where — reveal a pattern of the church setting up “front groups” to hide church financing to stop gay marriage. He includes in his complaint alleged correspondence between Mormon Church members in the 1990s who were involved in lobbying against gay-marriage proposals in
Hawaii. The letters bear the signatures of then high-level Mormon representatives, and describe the need to lower the profile of the church in the Hawaii effort by working in coalition with figures from other religions.
One June 1996 letter purportedly shows a Mormon Church representative was aware that media were interested in probing church donations to the coalition in Hawaii.

“We have organized things so the Church contribution was used in an area of coalition activity that does not have to be reported,” the letter reads.

In an e-mailed statement, Mormon church spokeswoman Kim Farah denied establishing the National Organization for Marriage and said the church has reported its entire contribution of $190,000 to Proposition 8.

Farah said the church has not tried to verify the authenticity of the documents related to the Hawaii campaign against gay marriage.

Brian Brown, National Organization for Marriage’s executive director and a
Roman Catholic, said, “The only way to respond to Fred Karger is one word: ridiculous.”

Brown said his group includes a Mormon board member and people of many other faiths. The early money that was used to get enough signatures to put Proposition 8 on the ballot, he said, came from mostly well-off Catholic individuals.
Jeff Flint, a Proposition 8 campaign manager, accused Karger of “irrational hatred” of the Mormon church. “I’m not exactly sure how to answer the latest conspiracy theory,” Flint said.
NOM Marriage News: California Edition March 20, 2009
Dear Friend of Marriage,
Fred Karger’s Wacky Pro-Hate Campaign!
We just learned we are featured in another Associated Press story this week: Alas for the state of journalism in this country–it’s the one in which the nation’s most respected news service replays with a straight face the latest wacky charges from a California gay marriage activist named Fred Karger. You gotta love Fred’s racket. He files the most outlandish complaints with the California election commission–he knows they are absurd. He also knows the mainstream media will report them with the straight face.
I first learned yesterday from Google that Fred now has a new charge: National Organization for Marriage is a Mormon front which shows that the LDS church violates election laws somehow. I mean this claim is really silly: If you bother to read the complaint, he points to all the Catholic and Protestant money NOM raised through NOM California to get Prop 8 on the ballot and concludes that the LDS Church church is secretly running NOM. And yet this morning on cue, like a dog salivating to the bell, Associated Press runs a national news story about this wacky claim. (No, the AP reporter didn’t bother to call us.
At least the Salt Lake City Tribune, which ran its own piece on Fred’s wacky charges, called me for my reaction. “Outlandish” is the word I used.)NOM, as you know, is not a front group at all. We are your voice for speaking up for common sense on marriage and for defending all of our consitutional rights to speak God’s truth to power.
At NOM, people of every race and creed are coming together in love to support marriage. It is truly an extraordinary grace and privilege to work with you. I call Fred wacky but his Orwellian-named “Campaign against Hate” is really hateful. Hate-filled. Fred is not a nice person: He leads the charge to take away people’s livelihoods and punish them for personally supporting marriage.
He’s also heading up one of the most vile anti-religious campaigns I’ve ever seen–directed right now primarily against the Mormon church. First, he attacks the LDS church because that’s a minority faith community… but who will be next on Fred’s angry hate-filled blacklist?
It’s sad, pathetic and disturbing; and it’s also the new face of the gay marriage movement in America. Listen, I’m sure even most folks who support gay marriage are more generous and fair-minded than Fred. But with the Associated Press’s eager help, Fred is turning himself into the new face of the gay marriage movement in America: self-righteous, careless of truth, anti-religious, filled with hate for his neighbors who disagree with him and a desire to punish them… and why? Solely because you and I dare to exercise our core civil rights to protect marriage as the union of husband and wife.
That’s what passes for hate speech in Fred Karger’s world.But with your help, and God’s, I promise you: The rest of us in America will never have to live in his sad, strange, narrow world.
I cannot tell you how precious your prayers and your support are to me. God’s blessing be upon you and your family, Brian S. BrownExecutive DirectorNational Organization for Marriage20 Nassau Street, Suite 242Princeton, NJ


Monday, March 23, 2009

The Amazing Power of The Culture (Part 6) [Maggie Gallagher]

What will happen to marriage once the government and the law insist that same-sex unions ARE marriage, “whether you like it or not”?
First, this set of ideas about marriage will necessarily be privatized: that male and female point to each other, that marriage has deep roots in the necessity of bringing men and women together, because society needs babies, and babies need their mother and father in one family.
Next, because the prime argument for gay marriage is an equality argument, this traditional view of marriage will also be stigmatized: that is, treated as a discarded and discredited relic of bigotry that we have happily overcome.
I remember most vividly — it’s just an anecdote, yes — a very smart young Harvard law student asked me, her voice dripping with suspicion and disdain: “Why are you so upset about same-sex marriage; how is it going to affect you anyway?”
When I pointed out to her how the law treats people who oppose interracial marriage in our society — professional licenses at risk, school accreditations potentially denied, state and federal tax-exempt statuses put into play — I watched her eyes open wide. She had never thought of this at all. And then I watched her turn on a dime and say, “You’re right. That’s how bigots SHOULD be treated in our society.”
Ideas are powerful things.
Evan Wolfson, one of the lead architects of the gay-marriage movement, understands this very well. That’s why he told National Journal, according to Neil Munro: “Once same-sex marriage is accepted across the board, he said, there won’t be any need for a term to distinguish gay or straight couples who marry to raise children from those who wed to love and help each other.”
It’s quite an interesting article. Among the other folks quoted is my old pal, Fred Karger, who founded Californians Against Hate. He’s right now in the middle of trying to prove that the National Organization for Marriage was secretly founded by the Mormon church as a front group — good luck with that one Fred — as part of a broader personal campaign to harass, threaten, and intimidate members of the LDS church who exercize their core civil rights to support marriage. He’s very open about it. ‘That is my goal . . . We’re chasing them now, and they don’t like it,’ he said. “They better get used to it.’”

“The word ‘marriage’ needs to be used to describe all relationships of two people who are loving and committed to each other,” says Sara Beth Brooks, the lead organizer of a march in San Diego on November 15. “To deny that semantic attachment to our relationships is the exact same thing as denying an African-American person the right to attend the same schools as a white person.”
Right. Why do they keep saying that? Because they mean it.
Gay marriage will not leave marriage undisturbed. If gay marriage becomes the law of the land, then this thing called marriage that I care about, and that most human societies have specially protected, will become nameless in the public square — also, unmentionable in polite society.
(Will polygamy be next? For me, this is a side issue. But Evan Wolfson would say — he said this one time when I debated him on Long Island — that’s up to the polygamists to launch a movement and find out. I say: Don’t ask me, ask the guys at Harvard Law school. Because as far as I can tell they work these things out for themselves and let us know afterwards.)
(To be continued . . .)


Air America Jon Elliott Show March 18, 2009 Exclusive Announcement

Sirius Radio — The Michelangelo Signorile Show

Associated Press

Fox 13 Salt Lake March 20, 2008

Deseret News Salt Lake City

San Jose Mercury News

The Examiner

The Advocate



On Top Magazine March 20, 2009

Box Turtle Bulletin

Good Sense Politics


News for Mormons

Lifestyle, Food, Wine & Hub

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