Now the waiting game begins.
In a three-hour long oral hearing yesterday, justices grappled with the fate of Prop. 8 as gay and lesbian rights attorneys, civil rights lawyers and representatives of both the City of San Francisco and the Attorney General’s office asked them to overturn the ban. So, how’d we do? Short answer: It appears Prop. 8 will be upheld. The longer answer, however, is more interesting.
A big disclaimer before going further: I’m neither a lawyer nor a fortune-teller. My impressions of the court and where they’re headed are based on a layman’s view. That said, the purpose of oral hearings like yesterday’s is for justices to test out their proposed rulings by asking both sides pointed questions, and from what was asked yesterday, there’s quite a bit you can infer.
It was Associate Justice Joyce Kennard’s special day in court yesterday. Described as a moderate Sandra Day O’Conner-style judge, Kennard delighted in asking pointed, direct questions of the challengers (that’s us), all the while grinning like a Cheshire cat. Our feeling is that Kennard wasn’t getting any particular delight about smacking gays and lesbians down, so much as she just really enjoyed having a good legal argument.
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Hers came down to this: Proposition 8, in her mind, did nothing other than remove the word “marriage.” In no way did it effect the rights and privileges contained within the word “marriage.” Attorney Michael Maroko pointed out that if Prop. 8 is left standing, Californians could pass an amendment that called all female justices “Commissioners” while conferring on them all the same rights and privileges as male “Justices.” It was one of the few moments that left Kennard without a witty or dismissive retort.
The National Center for Lesbian Rights’ attorney, Shannon Minter, pointed out late in the game that the word “marriage” has certain connotations in terms of contracts and legal rights that can’t be easily translated into another form. Recently, the state of New Jersey came to the same conclusion – that civil unions did not equate with marriage – and they are now moving forward with gay marriage legislation.
Which comes back to the heart of the questions that the California justices were asking yesterday. They seem unconvinced that they have the authority to overrule a voter ballot initiative, and many of them suggested remedies outside of the court. Chief Justice George repeatedly seemed to indicate that he agreed it was far too easy to change the Constitution under the current system, but essentially said, “These are the rules of the game, regardless of whether they are fair or not.”
Justice Chin asked both the gay rights side and Ken Starr, who represented the Yes on 8 campaign, if the state ought to get out of the marriage business entirely. Maroko said, “If you’re in the marriage business, do it equally. And if you’re not going to do it equally, get out of the business.” Both sides agreed that if the state were to only offer civil unions for everybody and leave the designation of marriage up to religious groups, they’d be satisfied. It’s actually a sensible solution and the one we’d like to see the court make if it refuses to overturn Prop. 8, but the court did not seem to be in an activist mood yesterday.
On the other hand, the justices rejected Ken Starr’s argument that Prop. 8 ought to retroactively apply to the 18,000 couples who were married last year in California. Starr argued that Prop. 8, because it does not “recognize” gay marriage, doesn’t invalidate the marriages, so much as says the state is nor blind to them, but even Kennard though this was nonsense, asking Starr how a voter could infer his interpretation from the initiative. Chief Justice George derided the vagueness of the bill as being a “political” tactic, suggesting that voters may have rejected the ballot if it explicitly stated that existing married couples would have their marriages revoked.
So, where does this leave us? Justice Kennard was the swing vote in the marriage case and based on her questioning yesterday, it was her mind that needed the most making up. In her estimation, changing the word “marriage” isn’t a drastic enough change to constitute a revision of the California constitution, which means Prop. 8 will be upheld, it seems, while existing married couples will stay married. The question is whether the court will order the legislature to do something about the current imbalance. It has the authority to do so and having 18,000 married people having the legal status of their relationships existing in a perpetual zombie state (though “zombie marriage” has a great ring to it) guarantees there will be more lawsuits.
One option would be Justice Chin’s—to get California “out of the marriage business” altogether. Another would be to revise the ballot initiative process to explicitly state that an initiative that changes the rights of a suspect class ought to be considered a revision. The question is whether the court will suggest a remedy or order one. This really has more to do with the California constitution than it does with gay rights, to be honest. The justices are essentially throwing up their hand and saying, “Yes, this is a totally stupid and wrong thing for the voters of California to do, but the way the constitution is written, we can’t do anything about it.” The attorneys supporting gays and lesbians strenuously argued that they in fact, have the authority to do what they want, that while the will of the people is important, the people also willed the court to have authority over it from time to time.
The justices will announce their decision within 90 days.
EARLIER:
• Live From the California Supreme Court Hearing (With Handy Viewing Guide)
• Meet the Court That Will Decide the Fate of Prop. 8
emb
Well THAT was certainly a thorough, thoughtful analysis! Thanks so much. Unfortunately I agree with what you suggest will be the outcome. I only hope that the victory of the pro-Prop 8 thugs and simpletons will motivate the GLBT community to more public, direct, proactive, and effective activism as well as more consistent voting.
Mark (another one)
Japhy – nice summation.
Merlin
Oh, there are gonna be new propositions out the wazzu coming up when Prop 8 passes the Supreme Court, if they take Ken Stars approach to democracy. All those special rights granted to religious groups, and the special deals on taxes, can now all be voted on as most if not all religious have been politicized and are political action groups and not religiously oriented at all. Think of all those whose rights can not be voted down if only people can muster enough signatures to initiate at Propositoin. How all equality issues can now be stopped by the will of the majority.
This is gonna get so messy, look how silly it was when Arnold got elected governor.
atdleft
@Mark (another one): Yes, good on Japhy.
I don’t know what the court will decide and can’t get a sense of where we’re at. Despite all the media reports declaring “Prop H8 will stand!”, I think they’re being too premature. Remember that we weren’t looking too good after oral arguments in the Prop 22 case last year… And look what happened.
Still, I’m wondering more about this “Third Way” option that Japhy’s talked about here and several justices mentioned yesterday. Is it a real possibility? Could H8 AND last May’s ruling be left intact? Can we have no more civil marriages and domestic partnerships for everyone? I wasn’t seriously considering it before yesterday, but I’m thinking there’s a chance we’ll see that in the final ruling.
Chitown Kev
Well, at the very least, the ballot initiative process in California could become a campaign issue in itself in the governor’s race, the justices clearly do not think that Proposition 8 is “justice.”
John K.
That was a great analysis. I listened to the entire oral argument (except the far too many times my connection went out for a few seconds). I missed the part where Michael Maroko suggested that female justices could be called “commissioners,” though I think I heard a reference to “commissioners” one time shortly after (thought they were referring to a past court decision. That is a pretty good argument.
I thought Therese Stewart was EXCELLENT. She had a great answer for every question and assumption the justices (especially Kennard) made. I wish Shannon Minter would have been better. He and the second guy seemed to let the justices trample them. There were good answers to most of the justices questions, but it seemed like they avoided directly taking those questions on in a way that showed how wrong the justices assumptions were. Case in point, and I don’t remember which attorney this question was posed to (might have even been Stewart): Kennard says something like, “well, taking the word ‘marriage’ away isn’t really that bad. Equal protection has not been destroyed here. Gays are still a protected class under the Marriage Cases decision.” BULLSHIT that equal protection isn’t destroyed! I’m remembering now, I think it was Stewart, and she had a decent answer. I would have liked to hear, “what good is there in being a protected class? Well, this Court can subject laws that discriminate based upon sexual orientation to strict scrutiny– and then the people can vote by a simple majority to overturn that decision, regardless of the specific issue. If Prop. 8 stands, the people can do whatever they want. So, again, what’s the use of being a protected class if there is no protection? ANY SINGLE EXCEPTION TO EQUAL PROTECTION DESTROYS IT.”
They also needed to drive home the fact that this is not asking the Court to do “whatever it wants” as more than one justice put it. There is a distinction between amendment and revision, and I don’t think enough emphasis was put on the delivery in most cases. THERE IS A CONSTITUTIONAL BASIS FOR A RULING STRIKING DOWN PROP. 8! The justices just kept repeating the crap about will of the people over and over again, and one of the attorneys needed to say, “ok, now this is very important. WE ARE NOT ASKING YOU TO DO WHAT YOU WANT ON A WHIM! There is a basis for this in the constitution. We are not saying that the people cannot change their constitution, but only that when it comes to fundamental rights, THE MOST RESTRICTIVE PROCESS LAID OUT IN THE CONSTITUTION ITSELF BE REQUIRED! How could it be any other way? There is a lot of talk about what ‘inalienable’ and ‘fundamental’ mean; well, what could they mean except AT LEAST inalienable unless the strictest procedure is used to ‘alienate’ them?”
Finally, I was VERY disappointed not to hear the argument that this was a 52% vote. “If it comes up again in two years, maybe it’s a 52% vote the other way. Then maybe two years from then, it’s 51% banning gay marriage again, then 53% reinstating it. Fundamental rights? If this is how the state of California deals with “fundamental” rights, then “fundamental rights” are a “fundamental” joke. I would have loved to see that quote given directly to the justices.”
I was very interested to see Justice Chin, a dissenter in the first case, bring up the option of getting the state out of the marriage business. I actually would LOVE to see that be the result here (maybe almost as much, if not more, than just striking down Prop. 8). It would allow those straight people who casually voted to restrict gay rights thinking it would not adversely affect them to get a taste of what it feels like. And you KNOW those right-wingers will not settle for anything less than government recognition of their “sacred” marriages.
I’m so burnt out on this emotionally. I wish they would just have announced their decision yesterday to get it over with. We all pretty much know what’s coming, and to tease us with this tiny bit of hope that I can’t help but keep alive is torturous.
John K.
@atdleft: I actually thought the Prop. 22 oral arguments went very well. I listened to them in their entirety as well, and I definitely didn’t leave them feeling the dread that I felt after yesterday’s arguments.
The only basis for my hope right now is that Corrigan and Baxter did not speak that much. I’m concocting conspiracy theories right now whereby the justices agreed, because this is such a different issue and it makes sense that positions would change, that George and Kennard would change positions and be VERY VOCAL about it at oral arguments, and that Corrigan and Baxter would keep fairly quiet and then decide to also switch sides and join the majority, keeping it 4-3 in our favor. That outcome would make it less likely that any of the justices would face recall or ouster in their retention elections. Think about it, who would the people recall? Corrigan and Baxter? They voted with the right-wing the first time. George and Kennard? They wouldn’t have been the ones that struck down Prop. 8. Moreno and Werdegar and sort of lower profile here. There would just be a confusion about targets when it came to recall, and I think it would be enough to foil recall plans. And think about it, no one really knows what goes on when justices make their decisions. It’s just not discussed. For all we know, stuff like this goes on all the time.
Anyway, just my last glimmer of hope.
Chris
I am a little more optimistic that proposition 8 will be overturned because letting it stand creates a dangerous slippery slope for all rights and laws in the state of California. Like other commenters have suggested, allowing all fundamental rights to be called into question and put to a majority vote would allow that state to devolve into chaos as each fringe group with enough social or financial capital wages proposition wars against their chosen suspect group.
This is only exacerbated by the reality that under federalism guidelines, propositions could restrict the rights of anyone not specifically covered in the US constitution.
While there isn’t much precedent for the justices to rest their opinion on, it would be irresponsible of them to open the floodgates of bigotry and oppression. This could easily be resolved, similar to Roe v. Wade, where the rights were found in the penumbras of the Constitution and therefore precedent may not exist.
rogue dandelion
What I glean from their arguments is that they don’t consider marriage an inalienable/fundamental right, or they don’t consider removal of inalienable/fundamental rights(no matter what they be) a revision of the constitution.
It seems gay marriage, like parental consent for abortions, is set to be a perennial battle for Californians. If ever it is finally won at the ballot box, it can just as easily be take away in 2 years time. It will never reach a state of normalcy(or even stability) in this fashion, at least here.
I am deeply ashamed of my state, and must look to the national stage for hope, though I don’t see any on the horizon.
RichardR
Watched some of the hearing, and had trouble following it — my brain gets tired easily plus I had to go do my literacy tutoring gig, so I’m dependant on and appreciate the various analyses.
Wouldn’t it be a fabulous outcome if 1) the Court tells the legislature it has to fix the California constitution so that basic rights can’t be voted away; 2) and the Court rips the ability to confer marriage’s civil rights away from churches, thereby requiring all couples to be united civilly. So there, Mr. Starr and your religious right backers, you rip our marriages away from us, and we rip your civic relevance away from you!
Thass the way it oughta be anyway.
Cal
I think a Proposition that removes the special exemption from real estate taxes that churches currently enjoy has a real chance of passing in California. Religious organizations enjoy more “special rights” than any other group in California. Shouldn’t the voters have an opportunity to render a verdict on these as well?
vernonvanderbilt
@Cal: If this situation goes the way it appears to be going, and if I lived in California, you’d better believe I’d be pushing for something like that. All is fair in love and war, after all.
Becky
Congrats to Justice Chin— finally someone from the bench is saying what the real solution to this problem is. Its time that everyone recognize that civilly and legally all a marriage is–is, well, a civil union.
In getting out of the marriage business what the government needs to do is quit conferring both penalties and benefits based upon marital status–and start treating unmarried (or un-unioned) individuals the same as married (or unioned) individuals.
And then all this can end, and Judge Starr can get back to his real mission in life–I am sure somewhere there is politician getting a bj without benefit of marriage or a civil union.
Jon B
Unfortunately, Ken Starr was smarter than most people give him credit for. He was able to say “sure, the voters can do away with free speech,” because free speech is protected Federally. Religion is also a suspect class requiring heightened scrutiny under the law, and therefore any ballot initiative trying to take away rights from religious organizations would violate Federal law, and likely state law. We LGBT folk are not a suspect class, or at least, the Supreme Court of the United States has never stated that we are (and don’t hold your breath for this Court to announce that). Therefore, we only have state level protections, which, according to Starr, are subject to the whim of the majority.
Unless we take a stand and refuse to allow their will to subjugate us, I think he’s probably right.
John K.
@rogue dandelion: This is the biggest problem with the Court declaring Prop. 8 a simple amendment.
First, the Court has already made very clear that marriage is a fundamental right (at least under the old constitution). What they seemed to be agreeing with yesterday was the second thing you said, that fundamental rights can be taken away. To listen to Ken Starr speak yesterday, it should scare every person in the US. Ken Starr did NOT describe the US that I learned about in school, where the majority is free to make “unwise mistakes” with minority rights, and then turn around years later and say “oops, sorry minority. We know we didn’t suffer at all from your oppression, but…our bad.” It’s disgusting to listen to.
As I think I said earlier, I was disappointed that there was not more made of the fact that upholding Prop. 8 allows for fundamental rights to change back and forth every two years indefinitely. It makes “fundamental rights” a joke that we tell ourselves to make ourselves feel good about our country, and I can only wish four of those justices realize that.
John K.
@Cal: Under Ken Starr’s argument, that would certainly be a valid initiative amendment. Unfortunately, we have to get a group of people together willing to spend the time and money to do it.
John K.
@Jon B: An initiative constitutional amendment under Ken Starr’s theory (the the decision most likely by this Court) would NOT violate state law, even if it singled out one religion for removal of tax-exempt status. The federal question is more complicated, but I think that if all religions are treated the same (removal of tax-exempt status) it would be ok. Afterall, they don’t have a RIGHT to tax-exempt status as far as I know. It would only be removing the same kind of “special rights” they always like to accuse us gays of asking for.
And Jon, I don’t know what you are talking about specifically when you say “take a stand,” but it better be more than that weak protests following the passing of Prop. 8 if we want it to actually do anything. You don’t get anything by standing on a corner and whining while your opponents walk by and laugh at you.
rick
just start the amendment procedure to outlaw divorce.
Bruno
Very good analysis Japhy, but I’d like to add that a few justices’ reactions haven’t been accounted for in most write-ups. Moreno and Werdegar seem most likely to vote to overturn the prop, based on the oral arguments. Chin seemed very interested in the “only civil unions” possibility, which means that he’s very concerned about what prop 8 means to minorities, but isn’t really ready to “overturn the will of the people.” He may actually have a swing vote here. Baxter was mostly silent and I assume firmly against overturning prop 8. Kennard also seems pretty much satisfied that prop 8 should stand. That leaves Corrigan, who I guess we might assume, as she was fairly silent, will vote to uphold prop 8, but I’m not 100% convinced of that. This is a different issue from the Marriages case, as Kennard said, so we can’t just assume everyone’s votes if they haven’t fully tipped their hats.
However, ultimately I think prop 8 stands 5-2 while the marriages stay valid 7-0.
Jim
@emb: We should start a petition to remove voting rights from republicans. If all rights are on the talbe for removal via a popular vote then as a state of mostly dems we can really knock them on their collective a$$e$.
Nikki
@Jim: Not just voting rights, but breeding rights, too. Then maybe the filthy breed will die out through attrition…
Nikki
Regarding Corrigan: It will, indeed, be interesting to see how she votes on this one. She dissented on the May 2008 decision (in re: marriage cases) — pretty disgusting considering she is a closeted lesbian who lives with and co-owns property with her long-time same-sex partner, Corinne Mohrmann.
Corrigan, a self-proclaimed “centrist” Republican has benefited in her career through numerous appointments to state commissions and judgeships, all made by Republicans (former California governors Ronald Reagan, George Deukmejian and Pete Wilson.) Corrigan is also a devout Catholic and heavily involved in the church, one of the most powerful and active religious opponents of LGBTQI rights. Here is an excerpt on Justice Corrigan from “The Catholic Voice” website (the online publication of the Roman Catholic Diocese of Oakland):
“As a young woman, she taught catechism to children of migrant workers in the Central Valley and tutored inner-city students while studying in St. Louis. Since 1992 she has served as chair of the board of directors of St. Vincent’s Day Home in Oakland (which is run by her same-sex partner, Corinne Mohrmann). She is also chair of the board of trustees at Holy Names University, a post she has held since 1994. She has served on the board of advisors for Providence Hospital and St. Mary’s Senior Center in Oakland.”
Mike
Just a word of caution: should the courts issue a challenge for the legislature to alter the way that the constution is amended now, the GLBT community would then need to submit to more rigorous criteria for amending the constitution to invalidate 8, if it comes to that.
As a Californian, I’ve always been disappointed that we need a 2/3rds vote to build a new road, but that we needed a simple majority to alter the constitution; however, at this point it will not serve our community well to make the changes that would have made it nearly impossible for Yes on 8 to pass in the first place. In fact, I have great fear that such an advisement might be made, or that the social conservatives will begin a movement to see this done.
John K.
@Nikki: WOW! I didn’t know that about Corrigan. I’ll have to look more into that one.
John K.
@Mike: Yes, I’ve written about this on another article. We need to get Prop. 8 overturned (probably via initiative) before we mess with the initiative process! Don’t want to have to get 60% like Florida or 2/3 to overturn the ban. Get the status quo on our side before we start talking about making the process more difficult.
vernonvanderbilt
@Mike: If we don’t get the right ruling on this case, I would not be surprised at all to see the bigots take the initiative to try to make the process more difficult. It would be the perfect way for them to cover their sorry asses. That’s why we need to beat them to the punch, or at least keep up, and start getting stuff on the ballot that will penalize them. The tax issue is probably our best bet, and the most winnable one.
Guy
@Bruno: I’m also hoping there is a 4:3 directive to the Legislature to get the state out of the marriage business. After all, the Yes on 8 supporters have already conceded domestic partnerships confer all the benefits of marriage. So, why should we have to parallel equal but separate institutions. Domestic partnerships for all will be the fastest way to get Prop. 8 repealed and create marriage equality for all in California for good.
Nikki
@John K.:
Here’s a Wiki edit I just made to Corrigan’s page. If you want details on the RealQuest real estate data, let me know…I’m trying to post this info EVERYWHERE in hopes someone will pick it up and fly with it. Maybe we can SHAME Corrigan into voting her conscience instead of her fear (of outing). The mainstream media is purposefully ignoring this aspect of the case so it is up to the blogosphere to do what it does best: Tell the world the G.D. truth.
———————————–
“A rumored lesbian, Corrigan’s sexual orientation stirred controversy on both sides of the gay rights divide. Anti-gay conservatives and Christians opposed her 2006 appointment to the Supreme Court of California, while gay rights activists remained relatively silent on the issue. That silence broke, however, in May 2008 after Corrigan cast one of the three dissenting votes in the landmark decision which granted full marriage equality to same-sex couples.
Gay rights bloggers, such as Michael Petrelis of the Petrelis Files blogsite, reported widely on Justice Corrigan’s sexual orientation, charging Corrigan with hypocrisy and betrayal of the LGBT community. Indeed, Corrigan’s relationship with Corinne Mohrmann, Executive Director of St. Vincent’s Day Home in Oakland, CA (Corrigan chairs the Day Home’s board of directors), has every appearance of a long-term, committed same-sex partnership; the two, in fact, purchased a home together in 1997 in an upscale Oakland hills neighborhood (source: RealQuest.com) and share the same residential address and telephone listing in WhitePages.com, all but confirming the rumors of Corrigan’s sexual orientation.
Neither the mainstream media nor Corrigan herself have publicly addressed the conundrum of why an intelligent, educated and personally-vested lesbian would rule against the best interests of either herself or that of her common-law spouse, Corinne Mohrmann. There is reasonable speculation, however, that Corrigan’s decision to remain closeted, along with her lack of empathy with the LGBT community, are most likely due to her indebtedness to California’s Republican Party (which, through numerous gubernatorial appointments, has been solely responsible for Corrigan’s high-rising success within the state judiciary) and to her deep and lifelong involvement with the Roman Catholic church — two highly conservative, anti-gay organizations which have expressed zero tolerance for outspoken, unapologetic homosexuals, especially among their own ranks.”
tavdy79
@John K.: I think we all know exactly which religious group should be targeted at the ballot box in 2011.
@Mike: There wouldn’t be a problem if the Constitution was altered such that any amendment that would remove rights from any suspect class (which LGBTs now are in CA) require both a supermajority vote in both houses of the CA legislature before being placed on the ballot, and a supermajority ballot vote to pass.
Jeffrey
@Tavdy79: There wouldn’t be a problem if the Constitution was altered such that any amendment that would remove rights from any suspect class (which LGBTs now are in CA) require both a supermajority vote in both houses of the CA legislature before being placed on the ballot, and a supermajority ballot vote to pass.
That is perfect!! I totally agree. That would work. And at the same time we can get an iniative to reverse prop 8 on the ballot asap.
Jeffrey
initiative! I hate making spelling errors. sorry.
BobC562
@Jon B:
Re-read the May opinion. The CASC held that gays and lesbians are a suspect class.
dalea
We need allies in this. Perhaps an amendment stating that no Roman Catholic priest can be within 50 feet of a minor child, which a lot of people abused by priests would support and work for, and which might have a lot of support within the RC, would be a way to start. Or, make marriages involving Mormons invalid based on the polygamy issue. Every municipality in CA should be sued over property tax exemption. Make them spend money defending the exemption.
Also, need to demand that we be taxed at a lower rate than the more priviledged married types. If we are second class citizens, we should pay lower taxes of all types. Need to start researching how to present this.
vernonvanderbilt
@dalea: I like the spirit of your suggestions, but I don’t think those specific ideas are particularly feasible for various reasons. I think our best bet would be to challenge the tax exempt status of churches, and then work from there depending on what happens. I believe we actually have sound reason on our side as far as that goes.
As far as demanding a lower tax rate, that would be hard to pull off without some sort of registry for us to sign up on, and even then it would be nearly impossible for us to actually prove we’re members of the GLBT community. You have to realize that plenty of opportunistic straights would try to fake their way into that. Nice thought, but not practical.
In addition to punitive actions, we also need to get Prop 8 repealed before any further restrictions on the process go through. I think a two-pronged approach (punishment/repeal) would sufficiently divide the enemy’s resources so as to get one or both passed.
It’s a nasty chess game, trying to get those passed and then strengthen the protections as far as introducing new initiatives go before our work can be undone. It’s hardly impossible, but it’s something that will take a lot of work, a lot of money, and better organization and leadership than we have at present. I’d imagine we could build some solid coalitions with other interest groups in order to accomplish some of this. Work with supportive organizations on the Prop 8 repeal, and work with groups interested in the separation of church and state on the tax issue.
We flank them, surround them, and annihilate them. There is a certain beauty that only manifests itself on the battlefield. This is certainly a beautiful strategy, in my opinion.
John K.
@tavdy79: Well, we do know which religious group(s) have hurt us the most, but if we want our amendment to stick (under the federal constitution), it has to repeal tax exempt status from all churches, not distinguishing one religion from another.
John K.
@Nikki: Great, thanks!
John K.
@BobC562: sexual orientation is a suspect class in California, but the US Supreme Court has never held it to be such on the federal level. I think that is was Jon B was referring to.
Bob Locke
@rogue dandelion:
Well, but there IS hope on the federal horizon since Obama (and his transition team) have stated that they will try to accomplish equal rights on a federal basis for LGBT people (civil unions, with state’s deciding what to NAME those unions), and that means repealing “DOMA” and “Don’t Ask Don’t Tell”. Gobama!