When Should Gay Marriage Advocates Try to Reverse California's Prop 8?

Whether we like it or not, gay marriage opponents had a devastatingly effective advertising campaign in California.

When should Californians try to reverse last November's Proposition 8 ban on same-sex marriage? That's the question on tap this week, and for awhile going forward.

While Barack Obama won a 61% to 37% victory in California last November, the Prop 8 amendment to the state constitution banning gay marriage also passed, 52% to 48%. It was a striking rebuke to pro-gay rights forces, who had just won the right in a notable California Supreme Court decision, and seemed poised to hold it in the election.

This week, a few organizations championing same-sex marriage will announce their opinions as to to whether to try to reverse Prop 8 in 2010 or 2012. In order to place an initiative on the November 2010 ballot, initiative language must be submitted to California Attorney General Jerry Brown by September 25th. Equality California and Courage Campaign will announce their decisions this week. This won't end the process, of course, as key funding decisions are yet to be made.

So, the question for human rights advocates is, when best to try again, the seeming slam dunk of 2008 having been screwed up in various ways.

California's same-sex marriage advocates have heard from their pollsters, they've heard from selected political consultants, and they've heard from activists. Now they need to decide whether to try to reverse Proposition 8, the anti-gay marriage constitutional amendment adopted last November, in 2010 or in 2012.

The pollsters said that 2012 would be a better option. The political consultants said that 2012 would be a better option. The activist leaders prefer 2010.

If there is to be an initiative to bring back the right to same-sex marriage -- established by the California Supreme Court last year and overturned by California voters last November -- ballot language is due by September 25th.

Here are some points to consider.

**The Polling

Gay marriage advocates -- and please excuse this sympathetic straight guy for using the short form rather than the full, and politically correct, LGBT language -- commissioned a poll on this point. Which was conducted before the Republican majority California Supreme Court, which had granted the right in the first place, predictably upheld Prop 8 last spring. Predictably because most gay rights advocates had sued on the technical basis that Prop 8 constituted a fundamental revision of the California Constitution rather than an amendment. Ignoring the fact that the Prop 13 property tax amendment was actually was actually far more far-reaching.

On June 3rd, I went on a media conference call sponsored by same-sex marriage proponents. Pollsters Amy Simon and David Binder discussed their poll, which indicated that the opponents of same-sex marriage have an eyelash thin one to two-point edge over proponents among all California voters. Not unlike other polling before the passage of the gay marriage ban.

The advocates' pollsters read is that 2012 is a marginally better year in which to do a gay marriage initiative than 2010, due to higher turnout of more Democratic voters in a presidential election. They're less pronounced, however, in the view that 2012 is preferable to 2010 than are the two leading public pollsters remaining in the state: Field Poll director Mark di Camillo and Public Policy Institute of California poll director Mark Baldassare.

There is a sort of inexorable quality to this. As time passes, the opponents of gay marriage increasingly pass away.

Nothwithstanding what their pollsters, or any others, think, the impression I got from the groups represented on the call before I had to move on to the next task is that they intend to move ahead on a same-sex marriage initiative for 2010. And are planning public events promoting same-sex marriage in dozens of cities.

**The Political Consultants Gay marriage advocates Equality California asked a selected panel of supportive California political consultants which year is best to reverse Prop 8, 2010 or 2012. The unanimous view? 2012.

Former Los Angeles Times pollster Jill Darling said: "Did the 2008 campaign move voters? Are the post-elections efforts having any effect? Nothing measurable."

Democratic consultant Gale Kaufman, named campaign manager of the year by the American Association of Political Consultants for defeating Arnold Schwarzenegger's 2005 special election initiatives, notes that an initiative for November 2010 needs to be submitted to the Attorney General by the end of September. "Has the perfect initiative been drafted? Is everyone who should be consulted on the legal language, not to mention whatever nuances we want to add, signed off? Is the campaign structure in place to sustain the process that goes along with the beginning stages of an initiative campaign?

"I pose these questions because I think I know the answer. And I think the answer is 'No,'" Kaufman said.

This late ad by Samuel L. Jackson casting opposition to gay marriage in a long line of anti-civil rights moves was too little to counter problems with the Latino and African American communities.

**The Activist Groups Older, more established groups are more skeptical of the idea of going right away back to the ballot. Others, are more into it. Of course, action equals funding in the world of activist politics.

Constant campaigning equals constant mobilization equals constant funding.

A gathering of activist group leaders last month in San Bernardino showed most in favor of going to the ballot in 2010. 93 voted to go in 2010, with 49 in favor of 2012, and 20 undecided.

** The Initiative Dynamic. California voters have dealt with hundreds of initiatives over the past several decades. The dynamic has become well established.

It is much easier to defeat an initiative than to pass one.

This is why 2008 was such a gigantic missed opportunity for the gay rights movement.

Former Governor-turned-Attorney General Jerry Brown provided the appropriate frame for the initiative, casting it in ballot language as taking away a right. Which infuriated the far right forces behind the initiative. But which was entirely accurate, given the fact that a Republican majority state Supreme Court had just granted the right.

And so the No on 8 side had a good lead in the polls starting out last year.

However, the obvious frame for the election proceeded to be completely blown by the No on 8 campaign until the last few weeks. First by a campaign which emphasized a sort of "getting-to-know-us" theme and, ultimately, by mistakes made by gay marriage proponent Gavin Newsom.

Same-sex marriage stalled out earlier this year in liberal New York, after a much-ballyhooed introduction.

**The Overall Environment Today's California political environment is dominated by the sharp economic downturn and by a closely aligned reality, namely California's chronic-turned-chaotic budget crisis. In this context of ongoing economic, financial, and fiscal emergency, gay marriage is not a top-rung issue for most Californians.

As a wild card indicator, there is the relative failure of the movie, Bruno. Some gay rights advocates saw it as a leading edge into the culture. Others worried that it was an unnecessary stereotyping of gay culture. I noted that its sharp fall-off after its opening day was no surprise, given its aggressively in-your-face nature. Putting aside the longer analysis of the movie, which I provided here on the Huffington Post, a relevant fact is that it will end up less than half as popular as Sacha Baron Cohen's previous provocation, the 2006 hit Borat.

And as a fine a movie as Milk is -- with its Best Actor Oscar for Sean Penn for his great portrayal of the intriguing Harvey Milk, with whom I was acquainted, and Best Supporting Actor Oscar nomination for former colleague Josh Brolin for his great portrayal of Milk assassin Dan White -- the movie makes Bulworth look like a blockbuster.

A same-sex marriage ceremony at San Francisco City Hall a few weeks before the election, presided over by Mayor Gavin Newsom, with first graders in attendance, effectively countered Prop 8 opponents' arguments that the schools were being raised as a scare tactic.

**The Newsom Factor San Francisco Mayor Gavin Newsom catapulted himself into a role as chief proponent of gay marriage with his swiftly overturned declaration in 2004 that same-sex marriage was legal in San Francisco. When the California Supreme Court declared it a right in 2008, Newsom promptly made himself the inadvertent star of the Yes on 8 TV ads with his notorious, braying declaration that gay marriage is inevitable in America, "Whether you like it or not."

Which is, probably, true, in the long run. Not that you want to say it as Newsom did. Because few things are inevitable in politics. And anything can be lost with enough arrogance and stupidity.

Later, with the No on 8 side's lead declining, Newsom presided over a lesbian wedding at San Francisco City Hall. Which first graders in one of the newlywed's classes attended. This provided endless ammunition for gay marriage opponents, who had been struggling to prove their contention that the right to same-sex marriage means that the gay lifestyle will be promoted in the public schools.

Newsom is trying to run for the Democratic nomination for governor in 2010. He's not doing well. He's just had major blow-ups in both his political and City Hall operations, and has less than one-eighth the campaign funds available to spend that frontrunner Jerry Brown has.

Nevertheless, his prominent role, at least for now, in the politics of 2010 places him front and center in the debate over the repeal of Prop 8. Given his record of boneheaded moves, gay marriage opponents are happy about this.

**The History The right to same-sex marriage will, in the end, win out. It's the getting there that is messy. And it need not have been as messy as the passage of Prop 8, and its expected upholding last spring by the California Supreme Court, has made it. (Fortunately, the 18,000 same-sex marriages legally carried out under the short-lived law will stand.)

Ironically, it was this very court that granted the right of same-sex marriage just last year.

Overturning an earlier anti-gay marriage initiative, Chief Justice Ron George, a Republican, wrote in his majority opinion: "An individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon an individual's sexual orientation. ... An individual's sexual orientation -- like a person's race or gender -- does not constitute a legitimate basis to deny or withhold legal rights."

The state Supreme Court's decision fueled a right-wing drive to enshrine opposition to same-sex marriage in California's constitution.

Gay marriage opponents got a huge gift immediately from San Francisco Mayor Gavin Newsom's comments. Newsom had enraged top national Democrats, including Senator Dianne Feinstein and Senator John Kerry, the Democratic presidential nominee, by unilaterally declaring same-sex marriage lawful in San Francisco in the midst of the 2004 presidential race. Though it was a move that was predictably easily overturned, national Republican strategists credited the furor it caused with playing a propulsive role in turning out huge numbers of fundamentalist voters in Ohio, the lynchpin of George W. Bush's 2004 re-election.

In the spring of 2008, Newsom delighted the proponents of what became Proposition 8 by delivering a gloating set of remarks.

"By the way, as California goes, so goes the rest of the nation," he said. "It's inevitable. This door's wide open now. It's gonna happen. Whether you like it or not. This is the future. And it's now."

The foolish remarks helped galvanize religious conservatives around the country, and they poured millions into the California campaign. It also formed the cornerstone for the Yes on 8 ad campaign.

A few weeks before the election, with opponents of Prop 8 fighting back against distracting assertions that the right to same-sex marriage means that "homosexuality" will be promoted in the public schools, Newsom presided over the same-sex wedding of a first grade teacher at San Francisco City Hall. 18 of her students were on hand to toss rose petals and blow bubbles on their just married teacher and her new wife.

The Yes on 8 forces had a field day with this, successfully pushing back against new No on 8 ads. And what seemed like the likely defeat of Prop 8 turned into a 52% to 48% victory.

And so the question remains: When best to try to roll back the ultimate failure of 2008? In 2010 or in 2012?

The emotional answer is clearly the former. The more measured answer the latter. But politics frequently turns, for better or worse, on emotion.