“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival . . . To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”

The above excerpt is from the U.S. Supreme Court (Warren) unanimous opinion on Loving v. Virginia, the 1967 landmark case that abolished the ban on interracial marriage. Over four decades later, we find ourselves fighting once again for the rights that are so “fundamental to our very existence and survival.”

This is not the post I wanted to write, but with three state court cases challenging the validity of Proposition 8, I feel that it’s important to provide a more complete picture of the legal landscape for same-sex marriage.

Before we start: I am not a lawyer, so I wouldn’t be surprised to learn that haven’t a clue what I’m talking about. I reckon you’ll read on, anyway. If that’s the case, get comfortable — it’s a long read.

I will not spend a lot of time on Baker v. Nelson — the Minnesota Supreme Court case that found the state’s same-sex marriage ban to not be in violation of the U.S. Constitution — and cases that reference it. This was appealed to the SCOTUS, where they chose to dismiss it “for want of a substantial federal question.” While a decision on the merits is a binding precedent on lower courts, the Court reserves the right to overrule their own decisions, and I fully expect them to invoke this right in the future.

The fact of the matter is, most parties recognize that this matter will ultimately be decided by the SCOTUS. Among those that believe this is Justice Scalia, who wrote the following in his dissent on Lawrence v. Texas:

“More illuminating . . . is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to ‘personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,’ and then declares that ‘[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do’ . . . Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution” . . . ? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”

Such a ruling from the SCOTUS would likely be based on Article IV, Section 1 of the Constitution, otherwise known as the Full Faith and Credit Clause. The article reads: “Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the US and it Territories and Possessions as they have by law or usage in the courts of such State, Territory or Posssession from which they are taken.”

Under Scalia’s interpretation of the clause, the Lawrence ruling could form the basis for repealing the Defense of Marriage Act (DOMA) and requiring all states to recognize same-sex marriages performed in other jurisdictions.

With that said, most believe the current Roberts court would issue an unfavorable ruling, and has demonstrated ambivalence on the issue. Until they choose to overrule Baker, let us shift our attention to the states, as same-sex marriage currently stands as a states’ rights issue.

In truth, I’ve made no attempts to hide my discomfort with the notion of litigating this proposition. On a personal level, I initially stood against challenging the proposition.

I inherently struggle with the idea of overturning a vote. It’s one of the few things I had ever stood against the ACLU on; as one of their members, breaking away is not something I take lightly. Based on Attorney General Jerry Brown’s carefully worded response to the lead case of Strauss v. Horton, it appears he may feel the same way:

“Based on the arguments raised in the petition, it appears that this court’s review will be limited in nature and will not have to ‘consider or weigh the … social wisdom or general propriety’ of Proposition 8 . . . Rather, the court’s sole function will be to ‘evaluate [the amendment] legally in the light of established constitutional standards.’ These questions appear to be strictly legal in nature, and do not require fact-finding by a trial court.”

This is not an easy case to litigate, so I’m glad to see this limited to a procedural battle. I’m not interested in overruling our democratic principles to win civil rights by fiat. What I am interested in, however, is ensuring that the process is sound.

The court system exists, in part, as a check on our government. Proposition 8 goes into uncharted territory, and it would be foolish of us to write off inquiries regarding its legality. Regardless of where you stand, AG Brown has it right when he claims that this is “a legal issue of statewide importance,” and that “it is appropriate for this Court to address these issues to provide certainty and finality in this matter.”

Now, it is true that other states have passed same-sex marriage bans. It is also true that courtroom challenges of such bans have failed. In particular, the Eighth Circuit Court of Appeals noted the following in its 2006 ruling on Citizens for Equal Protection, et al. v. Jon C. Bruning:

“If sexual orientation, like race, were a ‘suspect classification’ for purposes of the Equal Protection Clause, then Appellees’ focus on the political burden erected by a constitutional amendment would find support in cases like Reitman v. Mulkey, 387 U.S. 369 (1967), Hunter v. Erickson, 393 U.S. 385 (1969), and Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982). But the Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes. The Court’s general standard is that rational-basis review applies ‘where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement’ . . . As we will explain, that is the case here, and therefore Appellees are not entitled to strict scrutiny review on this ground.“

This is in stark contrast to the views of the California Supreme Court. In the opinion for In re Marriage Cases, they note the following:

“…we conclude that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution’s equal protection clause and that statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny under this constitutional provision.”

This is the premise of the Horton case that is now before the Court. As Stanford Law Professor Jane Schacter writes:

“The claim here is that Proposition 8 prevents the court from reviewing a claim by same-sex couples that they’re being denied their fundamental constitutional rights in the way that the court has said that claim should be reviewed. Proposition 8 did not address or eliminate strict scrutiny, yet its effect is to prevent the court from applying the state constitution as it believes it must be applied. The argument is that by thus handcuffing the court on a matter of constitutional interpretation of fundamental rights, Proposition 8 changes the function of an important governmental institution and constitutes a ‘revision.’”

Taking a page from Volokh, I offer no predictions as to how this will be decided, and question whether a victory in the courtroom is necessarily in the best interest of the LGBT community. With that said, the question set forth is one that I believe is important, possibly more so than the personal stake of either party.

Word on the street is that the Court will decide whether or not to hear the case on Wednesday. The people I’ve spoken to say that Proposition 8 supporters have recall petitions at the ready, so there’s a slim chance that the justices will decide to punt and throw the case out. Such a decision would not be ideal for either party, however, so I doubt it will come to that.

This is where we stand today. The legal landscape is unclear, but one thing is certain: We must prepare for whatever outcome is handed down by the Court. We should support the justices in this matter, and inform them that we will work to prevent a recall should they rule in our favor.

If they decide otherwise, then all eyes will be on the 2010 midterm elections. I’ve been in touch with other organizers and supporters, and future posts will discuss possible approaches and strategies for the future.

In any case, the battle is far from over. They might have won a sentence last week, but we ended up winning so much more. This isn’t just California’s fight, anymore; this is for everyone that supports civil rights. It might not seem like it now, but we’re that much closer to achieving marriage equality for all.

And we will not rest until we prevail.

A reader of Andrew Sullivan’s The Daily Dish wrote:

I’m not gay. I don’t have gay friends or family. This isn’t about homosexuality. This is about civil rights.

I attended the rally in Portland, ME (no pictures, sorry) with my wife and 4 year old son. A lovely older gay woman in the crowd thanked me for coming, and I thanked her right back. I don’t support gay marriage as a favor to gays, and I’m not owned anything for fighting discrimination. We don’t–we shouldn’t–need to rely on gays, on friends and families of gays, to ensure equal rights for all Americans.

I’ve got no special affinity for the gay community, but I’m an American and a patriot: I’ve got a special affinity for my fellow Americans. I’ll be damned if I acquiesce to such shameful hate and discrimination.

There have been many stories in the media about the protests this weekend, but I’ve found the reports from protesters themselves to be far more intriguing. To that end, click on for links to photos, video, and personal accounts from all over the world.

The main link I want to share is Andrew Sullivan’s excellent roundup at The Daily Dish. From Vancouver to Montana, from Amsterdam to Nashville, he manages to gather a diverse and overall positive collection of stories from his readers. Highly recommended — you’ll be hard-pressed to find a better collection.

I also found some very interesting accounts from the Kos community. A list of diaries is provided below; major credit to jamesia for compiling this list. You can find the original diary here: http://www.dailykos.com/storyonly/2008/11/15/173230/15

California

Los Angeles
LA County fear and voting by: jmknapp

Oakland
The Big Prop H8 Protest Pics and Stories Diary (w/ Thanks to Andrew Sullivan) by: sean mykael

Riverside
Being Part of History: Inland Empire Prop 8 Protest by: Killer of Sacred Cows

Sacramento
Sacramento, CA: No on H8 Protest pics/vids/diary by: writelight

SF
‘I May Be a Baptist, but I’m not a Bigot!’ — SF Prop 8 Rally Report by: jpmassar
Crowd chases anti-gay street preachers out of the Castro w/video link by PaulinSF

San Jose
No on H8 – San Jose, CA, Nov. 15 by: elishastephens

Ventura
Over 1,000 in Downtown Ventura Against Prop H8 by: thereisnospoon

D.C.

Photo Diary: Prop 8 March in Washington, D.C. by Cody
Washington DC Prop 8 protest by: Casual Wednesday

Florida

Lake Worth
Prop 8 National Day of Protest Photos in South Florida by: DavidW

Illinois

Chicago
I Do, I Do, I Do, I Do, I Do in Chicago by: Deep Dish
Pictures from Chicago’s Anti-Prop 8 march and rally by: wbrinkman

New York

NYC
The New York Rally Against H8 Just Got Out (w/pics!!!) by: proudprogressiveCA
NYC Proposition 8 Protest at City Hall (with pictures) by: bria

North Carolina

Raleigh
Prop 8 Protest in North Carolina! by: Jake Goad

Ohio

Cincinnati
Prop 8: Cincinnati as a case study in persistence by: CDH in Brooklyn
Margaret Cho in attendance in Cincinnati, OH

Flickr photo set: http://www.flickr.com/photos/pin/sets/72157609151275104/

In sum: Amazing. We can choose to look back and wonder what might have been if this sort of positive spirit and energy was present prior to the election, but it doesn’t matter now. This was what the movement needed. This was what got myself — a straight male in college — to push my peers to stand up and rally alongside the LGBT community. They might have won a sentence last week, but we ended up winning so much more.

This isn’t just California’s fight, anymore. This is for everyone that supports civil rights, and you all came out in astounding numbers. It might not seem like it now, but we’re that much closer to achieving marriage equality for all. A very special thank you to everyone that took part.

Today’s update included a large number of weekend protests outside of Join the Impact. Locations include UCLA, Saddleback Church, SF City Hall, NYC City Hall, Vanguard College, CNN in Hollywood, Tucson, AZ, Las Vegas, NV, Philadelphia, PA, and more. Click the tab to learn more!

I also wanted to draw attention to a couple of media events scheduled for today. A blast e-mail was just sent out regarding a press conference on behalf of Proposition 8 proponents. It will be held at 12pm at the Doubletree Santa Ana. Keep an eye out for any news or information that comes from this.

Also, for those interested: Tonight’s CNN’s Larry King Live will focus on the proposition — guests include Joy Behar, Cynthia Nixon, Gavin Newsom, and more. Should be an interesting discussion. Check your listings for times.

Finally, your comments are not being ignored. I’ve been reading what you all have to say, and I intend to respond shortly. At the moment, my goal is to facilitate the spread of all available protest and event information. I do not cherry-pick what I post; an appearance here is not necessarily an endorsement of the event.

After Join the Impact this weekend, I will be transitioning to provide more commentary that will both address the concerns you all have and lay out a strategy for the future. This will be in addition to the information on protests I’ve been providing.

In the meantime, I thank everyone for their patronage, and hope that it has helped the cause in some small way.

As of today, the Join the Impact protests are now international events. Areas listed so far include the United Kingdom, Canada, France, Australia, The Netherlands, Puerto Rico, Portugal, Japan, Hong Kong, and Belgium.

Note that information is limited at this time, and is subject to drastic changes over the next 24-48 hours. For the most updated news on the international protests, please visit the support page.

For more information, please visit yourgayreno.com.

(Note: This is technically part of the “Join the Impact” national protest, but I’ve made an effort to separate it due to the differing start time.)

Main site: http://www.jointheimpact.com/
Protest locations: Nationwide — see http://jointheimpact.wetpaint.com/
Facebook: http://www.facebook.com/event.php?eid=45356108205&ref=mf
Twitter: http://twitter.com/JoinTheImpact

This is it, folks. On Saturday, the protests go national. Every state will have at least one protest location.

On the steps of your City Hall on November 15th at 10:30am PST / 1:30pm EST, our community WILL take to the streets and speak out against Proposition 8 and all of the other pro-equality losses that we have faced in our lifetimes, in our parents’ lifetimes, and for many generations before us. WE CAN’T DO THIS ALONE! WE NEED YOUR HELP! We need organizers in every major city to work with us and get out the protest! I know you’re all tired from all of the work you’ve done for this great election year, but I’m asking for one more push! Let the country hear our voices together. Let them see that we are a strong, adamant, and powerful community that deserves equal rights, and CAN’T BE DEFEATED!

Send this post to everyone! We have one week and must react to the pro-hate votes cast against us! Let’s help our LGBTQ friends, families, neighbors, and each other to IMPACT this country with a demand for our basic human rights! Join the cause, join the voice, and JOIN THE IMPACT!

Click on for Facebook event links to over thirty cities!

CA
San Francisco, CA
http//www.facebook.com/home.php#/event.php?eid=32251834674

San Jose, CA
http//www.facebook.com/event.php?eid=34308543780

Los Angeles, CA
http//www.facebook.com/event.php?eid=49761921140

Fairfield, CA
http//www.facebook.com/event.php?eid=34611228099

Orange County, CA
http//www.facebook.com/event.php?eid=34475914076

Santa Rosa, CA
http//www.facebook.com/event.php?eid=34440551068

Stockton, CA
http//www.facebook.com/event.php?eid=48127673880

CT
Hartford, CT
http//www.facebook.com/event.php?eid=46553309328

GA
Atlanta, GA
http//www.facebook.com/event.php?eid=48277971347

FL
Jacksonville, FL
http//www.facebook.com/event.php?eid=48753753160

IL
Chicago, IL
http//www.facebook.com/event.php?eid=48659866275

LA
New Orleans, LA
http//www.facebook.com/event.php?eid=44603053764

MA
Boston, MA
http//www.facebook.com/event.php?eid=37701726407

Northampton, MA
http//www.facebook.com/event.php?eid=46213815030

ME
Portland, ME
http//www.facebook.com/home.php?ref=logo#/event.php?eid=33013314557&ref=mf

MI
Marquette, MI
http//www.facebook.com/event.php?eid=33584692766#/group.php?gid=95258645513

MO
St. Louis, MO
http//www.facebook.com/event.php?eid=39558816484

Kansas City, MO
http//www.facebook.com/event.php?eid=38511496486

NC
Raleigh, NC
http//www.facebook.com/event.php?eid=46087994571

Charlotte, NC
http//www.facebook.com/event.php?eid=34961921844

Greensboro, NC
http//www.facebook.com/event.php?eid=34500069010

NY
NYC
http//www.facebook.com/event.php?eid=33598248873

Albany, NY
http//www.facebook.com/event.php?eid=48186896290

Syracuse, NY
http//www.facebook.com/event.php?eid=35490157545

PA
Philadelphia, PA
http//www.facebook.com/event.php?eid=34356098686

Pittsburgh, PA
http//www.facebook.com/event.php?eid=35076252102&ref=nf

OH
Cleveland, OH
http//www.facebook.com/event.php?eid=33584692766

Columbus, OH
http//www.facebook.com/event.php?eid=34938706655

Cincinnati, OH
http//www.facebook.com/event.php?eid=32288614589

Youngstown, OH
http//www.facebook.com/event.php?eid=47627326001

OR
Portland, OR
http//www.facebook.com/event.php?eid=35230321837

TX
Dallas, TX
http//www.facebook.com/event.php?eid=57952862328

Houston, TX
http//www.facebook.com/event.php?eid=35183835938

Lubbock, TX
http//www.facebook.com/event.php?eid=33713273642

District of Columbia
Washington, DC
http//www.facebook.com/event.php?eid=47698021210

Certainly, the No on 8 folks might have done a better job of outreach to California’s black and Latino communities. But the notion that Prop 8 passed because of the Obama turnout surge is silly. Exit polls suggest that first-time voters — the vast majority of whom were driven to turn out by Obama (he won 83 percent [!] of their votes) — voted against Prop 8 by a 62-38 margin. More experienced voters voted for the measure 56-44, however, providing for its passage . . . At the end of the day, Prop 8′s passage was more a generational matter than a racial one. If nobody over the age of 65 had voted, Prop 8 would have failed by a point or two. It appears that the generational splits may be larger within minority communities than among whites, although the data on this is sketchy.

On that note, I have a small anecdote to share. I have a sister who is just finishing up elementary school. When the topic of marriage equality came up, I was surprised to hear her chime in. She wanted us to vote against Proposition 8.

“But do you even know what it’s about?” I asked.

“Yes. It’s when a boy and a boy gets married,” she replied.

“And you don’t have a problem with that?”

“No. All my friends don’t want it to pass, either.”

This is why all the concern about same-sex marriage being taught to children is a non-starter. These kids are far more intelligent than we give them credit for. I’m a straight male, so my sister didn’t discover homosexuality from observing my lifestyle. Instead, those her age learn about the basic aspects from their surroundings — and frankly, they don’t see it as a big deal.

I can only hope we learn to be as tolerant.

This Wednesday, New Yorkers will be gathering in Manhattan to Protest the failed Prop. 8 from California past ballot.

Bring signs, candles, friends! However, please be respectful. Protesters are not there to protest the Mormon faith.

What is this, to you? Nobody is asking you to embrace their expression of love. But don’t you, as human beings, have to embrace… that love? The world is barren enough.

It is stacked against love, and against hope, and against those very few and precious emotions that enable us to go forward. Your marriage only stands a 50-50 chance of lasting, no matter how much you feel and how hard you work.

And here are people overjoyed at the prospect of just that chance, and that work, just for the hope of having that feeling. With so much hate in the world, with so much meaningless division, and people pitted against people for no good reason, this is what your religion tells you to do? With your experience of life and this world and all its sadnesses, this is what your conscience tells you to do? (MSNBC Transcript)

I understand that Olbermann can be a divisive media figure, and that his tendency to be smug can turn even his core audience off — but I ask that you view this video with an open mind. This movement goes beyond politics, and he recognizes that by making one of the most eloquent cases for marriage equality. Pass this along.