Moving forward from Prop 8

KC Hanson is the Chair of the Multnomah County Democratic Party. Laura Calvo is President of the Stonewall Democrats, Democratic Party of Oregon. The following was co-authored by both of them.

In the shadows of the Golden Gate and the home and haunt of Harvey Milk, the Supreme Court of California announced that it is upholding Proposition 8, California's voter passed ban on marriage equality. In an odd juxtaposition, the court allowed to stand the 18,000 marriages of same-sex couples that occurred pre-8, essentially creating different status and levels of rights within a class of people.

Legal pundits had predicted that Prop 8 would be upheld, noting that the justices were loathe to overturn a vote of the people. Measure 36 of 2004 in Oregon also went to our state Supreme Court, and the results were similar. It has become clear that despite constitutional and conceptual edicts that declare the protection of the minority stands in equal - if not greater - importance than the will of the majority, marriage equality is a battle that will have to be won at the ballot box.

It is tragic when courts find that confusing and flawed initiative successes trump Constitutional rights. (Oh, what calamity would have happened had Loving v. Virginia been before the voters). As Americans committed to the core principles of basic justice, we must face the challenge head-on, and be up to the certainty of a pro-marriage equality initiative campaign here in Oregon.

We have continually struggled against unjust ballot measures, sought refuge in the courts, and have been buoyed by the endeavors of fair-minded elected legislators. But as the dust has settled on all of these efforts, and as the cloud of smoke arises from today's decision in California, it is clear that the guarantee of fair and equal recognition of our families will come from Oregonian citizens directly.

The Multnomah County Democratic Party has already declared it's support for the repeal of Measure 36, (Oregon Constitution, Article XV, Sec. 5a) and has vowed to engage the broader public in the dialogue about the impact of excluding same-sex couples from the freedom to marry. We WILL be ready for the ensuing initiative effort and will not cower from from our commitment to civil rights and justice.

Oregonians do understand that separate is not equal, and in the future, they will have a chance to make their voices heard.

Comments

  • RedOregon (unverified)
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    The citizens of this state have already answered the question: The answer is "no."

    And no, it's not going to change. Like your messiah BO said, "We won."

    Quit sniveling and move on.

  • wharf rat (unverified)
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    Hi Folks,

    I guess it is fitting that the first posted comment on this decision should come from a troll who apparently did not bother to read the post.....ooops, troll...read, oxymoron!

    My older brother has been out for some 50 years, his partner of 35 years slightly less. Our dearest friends from Ashland with their kids and grandkids for some 30 years. Although my generation [I'm 62] polls against inclusive marriage policy, my kids poll slightly in favor and my grandkids 60%+ in favor.

    I teach Auto Shop in a Las Vegas high school, my wife teaches English and we're the staff advisors to GSA. Half the 50 or so members of GSA are straight....and not just student leadership as you might think. Most of my Auto kids have a variety of friends, straight, bi, gay/lesbian, whatever, and really think nothing of it.

    Red, you need to understand that time and tide are against you. You're a troll. I understand the fetid world you inhabit, under a bridge, snuffling about with your troll friends, jumping up to frighten children and horses, surviving off the stuff thrown from the walls of civilization. I'm sorry that you have to live in such misery but, my friend, the world changes and you must grow up or be swept away.

    best regards

    pat hayes las vegas, nevada

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    Is there a specific and organized (i.e. office space, etc.) campaign that is starting? I'd like to help...

  • Laura Calvo (unverified)
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    Kristin, If you'll go over to http://stonewalloregon.org/?p=524 and leave a comment there, I'll be sure to get you the information.

  • Martin Burch (unverified)
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    There was an earlier article in here about proposed changes to Oregon's initiative process; those changes focused primarily on those who collect signatures, and not the initiative process itself. Those changes might be necessary, but they are not the fundamental problem with the ballot initiative process here in Oregon and in California.

    California's Proposition 8 is an example of the danger of easily altering a state constitution by simple ballot initiative. Many a conservative in California has railed at the required state expenses brought on by initiative; liberals feel squeezed by restrictions brought about by limitations on revenue sources that can last for generations (California's Proposition 13).

    But those are just about money. Proposition 8, and our Measure 36, are about people. There's a reason at the federal level why altering the constitution is a long and complicated process. Simple majority rule on items dealing with fundamental rights is just wrong. It wasn't that long ago that interracial marriage wasn't just prohibited, it was a crime in many states. No doubt majority votes in those states would have come up with similar resolutions such as Prop 8 and Measure 36 if the wording had dealt with blacks and whites, instead of sexual orientation.

    So I see several lessons from what happened today, and what has been happening over the equality in marriage battle that wages on.

    1. Being in the "majority" on a vote does not make the morality of the vote correct.

    2. Setbacks are not defeats.

    3. The real opponent against marriage equality remains fear and ignorance.

    4. Making constitutional changes by ballot initiative is counter-productive and does not sufficiently guarantee safeguards against institutionalizing prejudice.

    So, we continue the quest for marriage equality on several fronts. It will sound quaint and perhaps trite, but love, rationality, and education has to overcome fear and ignorance; that is, after all, what the root argument for marriage equality is all about. Political challenges in the courts and legislatures must intensify and we must be relentless, not reckless. And the end-goal must be larger than marriage equality. We have to find ways to improve the processes for protecting people so that rights and equality are not subject to the voting whims of any one group simply because they can manage 50% of a given vote plus 1.

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    Basic Rights Oregon has already issued a public statement on the way forward towards marriage equality in Oregon. If you haven't yet, you can watch it here:

    The way forward towards marriage equality in Oregon

    Basic Rights Oregon: Get Engaged

    Long term trending is in our favor. So, my biggest concern remains that people will let their personal passions and ambitions drive this debate.

    This is not the time to fire off half-cocked. This is the time for everyone who supports LGBT equality to commit to working together, and unite with the sound political leadership present in Oregon's LGBT community.

  • travesti (unverified)
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    Is there a specific and organized (i.e. office space, etc.) campaign that is starting? I'd like to help...

  • travesti (unverified)
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    Is there a specific and organized (i.e. office space, etc.) campaign that is starting?

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    travesti wrote: "Is there a specific and organized (i.e. office space, etc.) campaign that is starting?"

    Yes. Basic Rights Oregon: Get Engaged

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    For anyone on any side of this issue feeling disheveled in the wake of California's (Republican) Supreme Court decision that civil rights in their state are subject to simple majority vote, read this:

    The Big Gay Shrug: Sorry, enemies of gay marriage. Prop 8 or no, you've already lost By Mark Morford, SF Gate Columnist Wednesday, May 27, 2009

    Summary: ask anyone under 30 whether gays should be able to marry, and the vast majority will think you're kinda creepy just for asking.

  • Eric Parker (unverified)
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    "It is tragic when courts find that confusing and flawed initiative successes trump Constitutional rights."

    Actually, the courts are saying this: If you pass it and find fault later, that's just too bad. You will have to live with it until you change it yourself.

    You make your bed yourself, you will have to lie in it until you change the sheets yourself. It is still the Bush way of thinking - Interpret the law but don't create law while interpreting it. Bush may be gone, but his 'thinking' is still in the courts.

  • andy (unverified)
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    Marriage isn't a Constitutional right so it is subject to a simple majority vote. All of this bleating about fundamental rights is just noise. You can just call something you care about a fundamental right and then expect a Supreme Court to actually accept your argument. Read the opinion and maybe you'll understand the issue. Better yet, read the Oregon Supreme Court decision(s) on the subject.

  • Scott (unverified)
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    The court decision is troubling for a number of reasons, but it was not entirely surprising. My hope is that it will soon be overturned by initiative, legislation or another court decision.

    Stripping minority rights by popular vote is an appalling commentary on the lack of humanity and morality of many of our fellow Americans. I am pleased that demographic changes should soon mean that bigots in the majority will be a dying breed.

    Also, courts can and do change their minds, Brown v. Board overruled what was previously settle legal logic. This is not an isolated example. There is still a chance of a future legal remedy to this injustice.

  • andy (unverified)
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    A majority can always take away the rights of any minority in our system. You just need to have a big enough majority to take on rights that are considered "fundamental". Marriage isn't a fundamental right so therefore a simple majority does it in this case.

    This isn't really isn't very hard to understand but most of the comments on this site as well as on many other sites seem to have the facts wrong. If people would just read the opinions they would have a better understanding of the legal issues.

  • Marshall Collins (unverified)
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    While disappointing there were parts of the opinion that were quite fascinating. Everyone knew that getting the court to throw out Prop 8 was a long shot and even though it was left intact I think the justices did a lot to tear it down. In arguing for Prop 8 the lawyers for the respondants asked the court to view and interpret the amendment in a very narrow way. The court did that but went even farther than what they were asked and in the opinion said that Prop 8 is for all intensive purposes about nothing more than a word. (I am paraphrasing of course). True it is a BIG word but still just a word. They reiterated the fact that in CA, same sex people should still be considered a protected minority and that while they can't have the word marriage they also can't be denied ANY of the rights and privledges that come from marriage. In maintaining the 18,000 marriages that already took effect they merely relied on prescedent from past courts saying that unless retroactivity is explicit then all measures and amendments are prospective. While it wasn't great news I think they left a ton of material for the marriage equality crowd to use in future cases.

  • Bill Bodden (unverified)
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    There is some consolation in Winston Churchill's perceptive view of Americans: "Americans can always be counted on to do the right thing...after they have exhausted all other possibilities."

  • genop (unverified)
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    One day, in the not too distant future, we will look back in dismay at what a majority of Oregonians acting out of fear of the unknown did to their fellow citizens. This is a stain on our state's fabric of equal rights for all. The bleach of justice will not come soon enough. But it will come - until then many citizens will begrudge this reality and feel embarrassed to be known as an Oregonian.

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    Andy, no one has said marriage is a constitutional right. find the source if you really believe it.

    what is a constitutional right is for all citizens to enjoy the same basic rights as other citizens. so if the majority of Americans have the right to marry freely, to deny that right to an arbitrary category of citizens (eg, "mixed race" couples) is undeniably unconstitutional. and just because a majority of voters, on a particular day, say it's ok with them does not make that decision constitutional.

  • Bill Bodden (unverified)
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    While we have policies that defer to the majority that doesn't mean the majority is always or automatically right. A majority can be synonymous with a mob. At KKK lynchings the majority was probably unanimous, or nearly so, in favor of hanging the victim. A majority of Americans were in favor of the war on Iraq in 2002/2003 but some have since come to their senses so that only a minority now thinks that blunder was a good idea. The latter are most likely among those opposed to equal rights for gays and lesbians.

  • Martin Burch (unverified)
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    I used the term "fundamental rights," but I wasn't referring to marriage. I was referring to EQUALITY.

    Allowing a majority of people a privilige while denying it to a minority solely because they are a minority is about as good a definition of bigotry as any. And while one has the right to one's individual biases in this nation, there is no right to collective bigotry.

    Because let's face it; that bigotry is the only reason marriage equality is withheld on the basis of sexual orientation.

    Marriage may not be a fundamental right, but try telling those who backed these initiatives that they can no longer get married and watch what they have to say about it...

  • RichW (unverified)
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    If one looks at trends, eventually the laws against gay marriage will go the way of laws against inter-racial marriage. It may take another 20 years, but it will happen. The progressive train keeps chugging along, even though it has to slow down at times.

  • Oregon Bill (unverified)
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    Marriage may not be a fundamental right

    The US Supreme Court did declare marriage a "basic civil right" in their 1967 "Loving vs. Virginia" decision overturning religiously inspired state laws and amendments banning interracial marriages...

    And here we are once again, with the same mean-spirited Christians seeking to write their dumbass prejudice into state constitutions. And doing so successfully in Oregon and California, and elsewhere, with the help of folks who donate to Catholic, Mormon and Christian churches.

    So we'll all get to equality, and in a haze of togetherness and love - if we recognize that financial support for some churches (all Catholic and Mormon, for example) directly funds political campaigns that selectively erase our basic civil rights.

    So if you really care - stop donating.

  • Taylor M (unverified)
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    If Oregon Bill really cared, he would start learning about how churches are structured and not spread simplistic anti-religion bigotry on the Blue Oregon comments. Church ≠ political advocacy.

  • Taylor M (unverified)
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    Oh, and marriage is a fundamental right. Thank you, Justice Thurgood Marshall

  • David Robinson (unverified)
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    Again the Haters are masking the truth with falsehoods and deceptive rhetoric. Marriage is a fundamental right; this status is settled law. The Supreme Court in Loving v. Virginia stated that “Marriage is one of the basic civil rights of man…” (John Roberts take note – stare decisis – the principle you used to sell your confirmation to the Senate).

    KC, people of character and conviction support the cause of marriage equality. You will win and all Americans will benefit.

  • Greg D. (unverified)
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    I am a hetero male who achieved the status of being "married" about 30 years ago by kneeling on a marble floor in a giant Roman Catholic Church for about an hour as incense and unknown Latin phrases were circulated over my head. I have to admit to a certain curiosity / lack of understanding as to the desperation of the gay and lesbian community to gain access to "married" status. My curiosity is furthered by the fact that under current Federal law, regardless of the status you and your partner enjoy under state law, you won't get equal treatment under ERISA, the Internal Revenue Code, or Social Security unless you are "one man and one woman". And thanks to the Federal system and the US Constitution's distribution of power in the Senate, Federal law is very unlikely to change in my lifetime or my childrens' lifetime or my grandchildrens' lifetime.

    If it was my fight - which it is indirectly but not directly - I would be more concerned about obtaining the maximum equal rights under state law regardless of the label placed on my relationship. But I support those who feel that obtaining the label "married" is worth an endless struggle.

  • Thomas Wheatley, Basic Rights Oregon (unverified)
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    Thanks to Leo for mentioning Basic Rights Oregon's Get Engaged campaign. And kudos to the Multnomah Dems for passing the resolution mentioned in this post. They're leading the way.

    Folks in the Portland area can also come by the Basic Rights Oregon office to get involved in the campaign for the freedom to marry. Give us a call at 503-222-6151 and we'll put you to work.

    We met someone at the waterfront rally yesterday. He is relatively new to Oregon and wanted to get involved. So he dropped by this afternoon and connected with our team and is going to be volunteering next week. It's just that easy.

    The campaign for marriage equality in Oregon is well underway.

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    As any law school graduate will know, there are some cases that are essentially political rather than purely legal. Those cases are our used to be routinely treated by supreme courts as "nonjusticiable." Those courts left political matters to be settled in the realm of politics, i.e., argument, persuasian, and elections.

    Both the Oregon and California supreme courts have essentially adopted the nonjusticiable position without stating as much. This is a defect but the effect nevertheless.

    IT IS UP TO US to engage POLITICALLY on the issue of marriage equality. And so I am with KC and Leo -- and so many others -- engaged in the coming ballot measure battles to repeal laws like definition of marriage and don't ask, don't tell. Anyone who knows me knows that for me these battles include reforming the basics of Oregon's initiative system.

    RedOregon put it quite correctly when he wrote: "Quit sniveling and move on." We will indeed move on and defeat these backward-looking, knuckle-dragging throwbacks to earlier millennia and most of us will quit sniveling. Thanks Red for the encouragement.

    One comment on the California case. The court left a trap door in its decision by wrongly deciding the 14th Amendment equal protection issue. The justices evaded the issue with their rather simple and unstated approach to the larger justiciability issue. I believe that the trap door was left intentionally to stimulate a motion for reconsideration to clarify the court's 14th Amendment position. However, by no means should that issue go forward to the current U.S. Supreme Court -- doing that would end up with bad law that could last for a generation or two.

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    Slightly off topic to KC and Thomas Wheatly:

    Are you guys watching this Olson/Boies move to take prop 8 to SCOTUS? Is there a danger here if we get the wronq result in that arena?

    Seems that Ted might be a civil libertarian whose actions are finally catching up with his dogma, but we know this guy to have been utterly ruthless and partisan many times in the past.

    It's a little scary thinking of him as an ally.

  • travesti (unverified)
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    Thank you very much for this useful article and the comments. I love this site as it contains good

  • travesti (unverified)
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    Thank you very much for this useful article and the comments. I love this site as it contains good

  • andy (unverified)
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    t.a. barnhart, you suffer from a fundamental misunderstanding of what is and isn't a constitutional right. There certainly isn't a basic constitutional right that allows anyone to marry anyone they want. There are all kinds of restrictions on marriage including age, gender, number of parties to the marriage, etc.

    Okay, I understand that you don't like the gender restriction on marriage. So go change the law but don't try to make up a new constitutional right when it obviously doesn't exist. I don't think the word marriage is even in the US constitution and certainly the concept of gay marriage isn't in there.

    Personally I don't care about gay marriage one way or another. I just find it odd that so many of the people arguing for it don't understand the basic legal principles that they are arguing about.

    The Prop 8 ruling in CA makes perfect sense if you actually read it. That court had it hands tied and unless they were willing to just make up some new law out of thin air they had to rule in favor of upholding Prop 8. Same thing in Oregon with M36.

    Gay marriage is not a traditional right nor is it a declared right under the constitution. So if people want it recognized then it has to be introduced by law.

    It is possible that a plaintiff could find a judge somewhere to make up some new law and declare that gay marriage has always been a fundamental right and after 200 years we just discovered it in the constitution. There are judges like that floating around but most have more principles than that.

  • andy (unverified)
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    I see that several people have brought up Loving. That was of course a race based case so it has a different criteria. If you want to understand why Loving doesn't control same sex marriages then read Hernandez v. Robles. Hernandez is a 2006 court of appeals case out of NY that denies Loving as a basis for same sex marriage.

    On the flip side, the CA supreme court did try to justify same sex marriage as a fundamental right in the marriage cases. Their logic was rather stupid but a majority did sign on. The dissent makes a much better argument in that case than the majority and is a better raed. Then of course, Prop 8 came along and blew the Court's attempt at creating a new right out of thin air away.

  • Oregon Bill (unverified)
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    If Oregon Bill really cared, he would start learning about how churches are structured and not spread simplistic anti-religion bigotry on the Blue Oregon comments. Church ≠ political advocacy.

    I care very deeply - it's my family's legal equality at stake here...

    I care enough to make it clear that Catholics and Mormons who donate to supposedly "progressive" congregations are, undeniably, helping fund political efforts that have now denied gay and lesbian friends, colleagues and family a basic civil right.

    Good, moral Catholics and Mormons who care, too, will quit donating. But I recognize that plenty will remain in denial, some all squirmy and abashed, and others angry and pissed off. What, me - responsible for my actions? I'm a nice Catholic! But I'm not interested in letting any of you off the hook.

    Face it: if you gave money to St. Andrews, Holy Names, and Holy Family, you funded the successful Archdiocese effort to legally diminish the rights of fellow Oregonians. If you're still giving money after you know this - you just plain suck.

  • Taylor M (unverified)
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    Oregon Bill, you’re not quite getting it. I’m sympathetic to your concerns, and share the goal of marriage equality, but I think your approach of berating people of Catholic and Mormon faith is not helpful. To make my point clearer, how about an example? Let’s say my mother depends on her children to look after her. My siblings and I pay her bills, make sure her pipes don’t freeze in the winter, and protect her interests as vigilantly as possible. Do my siblings and I stop supporting her because she sends a check to support a cause we don’t agree with? Of course not. You don’t cut off family because you disagree- you love them, and talk with them, and at least attempt to have a dialogue. That’s the way you change hearts and minds. It’s not by hurting the ones you love, or taking your $10 and staying home on Sundays. The church isn’t a political party, it’s a family.

    In the Catholic church, you are called to be your brother’s, your mother’s, and your archbishop’s keeper. And as the modern saint Dorothy Day said, Catholics must never cease from demanding more from their church.

    Besides, archdiocesan political donations didn’t make Measure 36 pass- it won by a 13% margin. Oregon voters overwhelmingly voted for 36- but not in Multnomah County, where the vast majority of Oregon Catholics live. Must not have been very effective advertising, then? I think you’re trying to pick the wrong fight with religious people.

  • Oregon Bill (unverified)
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    The church isn’t a political party, it’s a family.

    And your family worked hard and successfully to diminish the legal rights of mine.

    Besides, archdiocesan political donations didn’t make Measure 36 pass- it won by a 13% margin.

    With financial support for a massive political effort, including print ads, television commercials, radio spots, mailers, and campaign contributions from the Archdiocese of Portland - the NUMBER ONE FINANCIAL CONTRIBUTOR TO MEASURE 36.

    Taylor, it seems that you have helped, personally, to selectively erase my family's access to a basic civil right. And you still don't care. Squirm away - but you suck.

    And I'm sure that your family, with your weekly 10 bucks, will be back yet again to make sure that gay and lesbian Oregon families retain our second class legal status.

    And I'm gonna call you on it. Many less blinkered Catholics have quit rationalizing their hand in church prejudice - and have stopped sending cash.

  • Thomas Wheatley (unverified)
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    Pat Ryan:

    You're right about the lawsuit just filed in federal court challenging Prop 8.

    This is a highly risky maneuver, one not backed by the national LGBT legal groups who are coordinating the national legal strategy on marriage.

    Most legal scholars indicate that the current Supreme Court would be unlikely to return a favorable opinion on marriage equality. And a bad precedent could set this movement back decades.

    The more limited legal challenge to DOMA filed by MA couples has a far better chance of winning a favorable outcome.

    The bottom line: A marriage case based on the federal constitution may well not win the right to marry back in California. And a loss would likely set back the fight for marriage nationwide, and hurt LGBT parents, employees, and students all over America.

  • Oregon Bill (unverified)
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    And Taylor -

    Here's an example for you...

    Let's say that I belonged to a church that took my ten bucks and ran a successful political campaign to amend the constitution and selectively deny Asian women their fundamental right to vote.

    Personally, I think I'd leave that church pretty damn fast...

    But if I didn't, and I was confronted by a very pissed off Asian woman, I don't think I'd lamely cry, "oh, you just don't get it. My church is like, see, my family. I'm really sorry about your predicament, but you can't blame me, or my church. I don't have any responsibility here. I'm a good person."

    Taylor, you hold the power to change things here, by standing up and saying NO, I will not take part in further efforts to selectively deny rights to my fellow citizens. You can quit giving your ten bucks, money that backs efforts to keep my family, my husband, and my kids legally less safe and "worthy" than yours.

  • Laura Calvo (unverified)
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    Pat Ryan,

    Rachel Maddow did a piece on the court case being brought by Olson/Boies which didn't really touch on the risk.

    Law Dork 2.0 has an interesting posting concerning the risk and the current strategies.

  • Ms Mel Harmon (unverified)
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    "Church ≠ political advocacy."

    HAHAHAHAHA....oh, wait, you were serious.

    Hey, I've got a bridge to sell you....great view of the Atlantic Ocean...it's just outside of Bend. Give me a call.

  • Oregon Bill (unverified)
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    Thomas Jefferson wrote that “Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”

    Hopefully we can all work within our own social circles to convince friends, neighbors, family members, colleagues to stop feeding the tyrants (in this case, Catholic, Mormon and many Christian churches) with continued financial donations - because that money is used to take away the equal rights of others...

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    Thanks Thomas and Laura,

    And thanks for the link. I did see the Maddow segment and like you say it wasn't real illuminating on the legal stuff, but it looks like everyone was thown a curve ball here. I know the good Doctor will keep us informed as this thing goes forward.

    Outside of Greenwald, she's my go-to commentator on civil liberties issues........

    Guess we'll see whether Olson's sincere in due course. Just hope it doesn't cost us dearly..........

  • travesti (unverified)
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    Most legal scholars indicate that the current Supreme Court would be unlikely to return a favorable opinion on marriage equality. And a bad precedent could set this movement back decades.

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