REPORT: Why 2012 Is Not Year To Repeal Prop 8

There is a debate going on in California (again) about when (or if) the LGBT community should attempt to repeal Proposition 8 by circulating and passing a constitutional amendment to restore marriage equality in 2012.

REPORT ON WEST HOLLYWOOD TOWN HALL
The state's largest LGBT political advocacy group, Equality California, is hosting 12 town halls around the state seeking LGBT community input on the momentous decision to attempt to pass a ballot measure which would enact marriage equality and overrule Proposition 8. To that end, MadProfessah was invited to attend the 2nd of these events at the West Hollywood Auditorium on Sunday May 22 (Harvey Milk Day) as part of the panel. Other members were David Codell, a leading gay attorney who participated in the California marriage case and is one of the smartest legal minds in the state, Jim Carroll, interim Executive Director of Equality California, and Andrea Shorter, Director of Coalitions and Marriage at EQCA.

About 75 people showed up for the event which started a bit late at 5:45pm. Incoming EQCA Executive Director Roland Palencia was introduced to the crowd but did not say anything. During the event David explained that if a new constitutional amendment were to be passed then that would immediately make the Perry v Brown lawsuit moot. He also gave his opinion on the disposition of that case, making it clear that he felt it was very unlikely that the California Supreme Court would rule that the Proposition 8 proponents have standing to pursue the federal lawsuit when the Attorney General and Governor of the state have declined to defend the ballot measure in federal court. According to his timeline, oral arguments should happen in September with a ruling in December and the 9th Circuit ruling soon after that in early 2012. That would lead to a U.S. Supreme Court ruling sometime before June 2013. David also thought that the U.S. District Judge James Ware would quickly dispose of the offensive challenge to the original Perry v Schwarzenegger decision based on the sexual orientation of the judge, saying he was looking forward to reading the decision to see just how sharply the judge smacks down the heterosexual supremacists for making the ridiculous claim that a gay judge's sexuality or relationship status would have any impact on his ruling. David also made the point repeatedly that never in the history of America has any state passed a ballot measure to enact legislation to provide a right to LGBT people. There was a question from the audience about this later and I explained that there have been pro-gay ballot measure results (Maine 2005, Arizona 2006, Washington State 2009). Maine 2005 was the defeat of the repeal of a statewide gay civil right bill on employment. Arizona 2006 was the defeat of a measure to ban domestic partnerships and same-sex marriage (in 2008 Arizona passed  a constitutional amendment to ban same-sex marriage only). Washington 2009 was the statewide approval of a referendum on a comprehensive domestic partnership law recently passed by the state legislature and signed by the Governor. These are all different situations from asking voters to overturn a previously passed initiative statute and constitutional amendment banning same-sex marriage while a lawsuit is pending.

Jim Carroll's job was to give the results of a new poll about marriage equality conducted by Binder Research paid for by former Ambassador James Hormel and Love Honor Cherish. You may recall LHC was the group who moved forward with a Repeal Prop 8 campaign in 2010 (and failed to turn in any signatures) despite most of the LGBT community deciding in summer 2009 that this was not the right time to raise and spend tens of millions of dollars to pass a pro-gay ballot measure that year. Carroll presented a powerpoint which demonstrated that there has been very little change in public support for marriage equality since the last time the LGBT community polled in 2009. Carroll tried to educate the audience about the difference between polls of "adults" and polls of likely voters. California has 37 million people, and about 24 million adults, of which 21 million are registered to vote and about 15 million who are likely to vote in the next election. These 15 million are, on average, whiter, older and more conservative than the population as a whole which is "majority minority." The poll results Carroll discussed were for this group of likely voters.

THE LATEST POLLING RESULTS ON MARRIAGE EQUALITY IN CALIFORNIA
The topline result is that on the question of marriage equality, i.e. "Do you support or oppose allowing same-sex couples to be legally married" the 2011 numbers are 45% Yes-45% No 10% Undecided compared to the 2009 numbers of 47% Yes 48% No 5% Undecided. This is a somewhat shocking result in the light of numerous national polls (Gallup, CNN)showing majority support in the adult population for marriage equality in the last 6 months or so.

Unsurprisingly, support for marriage equality varies depending on how you ask the question. For example, if the question is about repealing Proposition 8 there is majority support (51%). Note that the margin of error in the telephone poll of 900 likely voters May 10-14 (with oversampling in African-American and English-speaking Asian Pacific Islander communities) is 3.3 percentage points. Look at the graphic above to see that support in communities of color for marriage equality has slightly increased with opposition slightly decreasing.

Binder also polled on the question of explicitly adding a religious exemption to a ballot measure which legalizes same-sex marriage (and thus also implicitly repeals Proposition 8) and support went down from the repeal Prop 8 numbers.

Would you vote yes or no on a ballot initiative that would legalize civil marriage for same-sex couples, on the condition that clergy or religious institutions are never required to perform a marriage that goes against their religious beliefs?

47% Yes 43% No 10% Undecided

Binder calls this an increase in support because the 47% number is higher than the 45% baseline support for the marriage equality question. However, the question "Would you vote yes or no on a ballot initiative that would legalize civil marriage for same-sex couples" was not included in the poll. The assumption is that the results of this question would track identically with the results on the marriage equality question.

In fact, in a bizarre case of fallacious reasoning Binder lumps all the respondents who said they support marriage equality OR repealing Proposition 8 OR would vote yes on a ballot measure with a religious exemption and comes up with a support of 58% Yes and 34% No. The notion that you can presume that people who will vote for a measure that does ONE of these things will also vote for a measure which does ALL of these things is simply ridiculous. (Mathematical geek aside: There is a huge logical difference between an OR and an AND.)

WHY TRYING TO REPEAL PROP 8 IN 2012 IS A BAD IDEA
All in all, I went into the Town Hall undecided and left pretty convinced that a 2012 ballot measure campaign to restore marriage equality to California is a bad idea. Especially when there is a pending federal court challenge which may not only restore marriage equality in California but support the legal argument to strike down the 30 other constitutional amendments which ban marriage equality around the nation. There are numerous other states which will likely have anti-gay marriage measures on the ballot (Minnesota, North Carolina and Indiana) and there may be states which have affirmative pro-gay measures on the ballot (Oregon and Maine). For the amount of money it takes to expand California from civil unions to full marriage equality one could have a good shot of winning one or both of the affirmative measures and possibly defeating one or some of the anti-gay measures. Nationally, it just doesn't make sense to me to spend 30-plus million dollars to enact marriage equality in California when there are states which do not have basic laws banning discrimination on the basis of sexual orientation (29) and gender identity (38).

We shall see what happens in the future, since EQCA says they will report back to the community in September 2011. LHC says that we can file ballot language and collect signatures before the California Supreme Court rules on the standing issue. Depending on the decision, the signatures do not have to be submitted. I'm not opposed to this idea, but I think it will be very very difficult to not submit the signatures to the secretary of state in March 2012 if either the Cal Sup. Ct. or  9th Circuit doesn't rule our way. Of course if a measure does get submitted and qualified I would support it, not monetarily but I would vote for it.

I just think that 2012 is not the right year to repeal Proposition 8. In order to make that decision to move forward I have three pre-conditions which need to be met: 1) Show majority support outside of the margin of error for marriage equality in the state in multiple polls 2) Significant (7 digit) quantities of money in the bank and 3) a open, accountable leadership structure and detailed plan for how to run a statewide ballot measure campaign.