Prop. 8 Challenged In Court...And At The Voting Booth?

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After a challenge to the Proposition 8 gay marriage ban was struck down by California's Supreme Court in May, there was debate among gay rights groups on what to do next. A federal court challenge? A ballot initiative to overturn it in 2010? The same in 2012?

With a federal court case already gaining momentum, and with field efforts already underway for a ballot initiative, it looks like we'll see both.

A federal lawsuit is now being argued, on behalf of the American Foundation for Equal Rights by the attorneys for George W. Bush and Al Gore in the 2000 election lawsuit, Ted Olson and David Boies, who signed on the day after California's Supreme Court ruled to uphold Prop. 8.

This week, the ACLU, the National Center for Lesbian Rights, and Lambda Legal, a prominent LGBT legal group, are trying to join on.

Before this latest development, gay rights groups seemed to think a court case wasn't such a good idea, and that a ballot initiative to legalize gay marriage in 2010 or 2012 would be preferable. Now that these groups are looking to join the court fight, that's no longer the consensus.

The case has a better chance than the previous appeal, according to Lambda Legal National Marriage Director Jennifer Pizer, because it more closely mirrors the case that won gay marriage rights in 2008, ultimately leading to Prop. 8's inclusion on the ballot in November.

"The legal analysis used in the first litigation that won the right to marry in California--those arguments resonate in federal law," Pizer said.

Lambda, the ACLU, and NCLR are seeking to join the case over the objections of American Foundation for Equal Rights, which has led the challenge since its inception.

After a motion to intervene this week--asking U.S. District Court Judge Vaughn Walker to join the three groups to the case--American Foundation for Equal Rights board president Chad Griffin sent a letter telling them to back off: "You have unrelentingly and unequivocally acted to undermine this case even before it was filed. Considering this, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening," Griffin was quoted as saying by the Associated Press. "Therefore, we will vigorously oppose any motion to intervene."

The lawsuit has picked up the support of California Attorney General Jerry Brown, who agreed, in a court filing, that Prop. 8 violates equal protection rights under the Fourteenth Amendment. Gov. Arnold Schwarzenegger, meanwhile, has remained neutral, declining to defend Prop. 8's constitutionality in court.

There is optimism surrounding the federal case--but that's not to say the gay rights movement has chosen a single path in seeking to overturn Prop. 8.

A ballot initiative is still on the table, and we could see one in 2010 or 2012.

"Any case that happens at the federal level, by the time it does its hearing in circuit court and then goes to the appeals court, and then the rare situation where it goes to the U.S. Supreme Court, we're talking about a five year deal here," one source in the gay rights movement said. "I don't think there's any reason to believe the case is going to suddenly put an end to a ballot initiative in 2010 or 2012."

In fact, field efforts are already underway, with some activists ramping up their activity to campaign-season levels, on the assumption that a measure will be on the ballot in 2010.

Equality California and Courage Campaign, two California-based groups, are canvassing door to door in multiple counties, while Human Rights Campaign, a national gay-rights powerhouse, has a field campaign in place and is focusing on faith communities, a demographic that backed Prop. 8 in November.

"We are putting in place everything that we can to mobilize our own members and others," said Rick Jacobs, founder and director of Courage Campaign, whose members voted by 82.5 percent in June to put a measure on the ballot in 2010.

Courage Campaign has 41 teams of volunteer canvassers working in 22 counties, Jacobs said.

Equality California says it has 18 field staffers organizing canvasses out of nine field offices around the state--the same number of field offices John McCain had in Ohio last August--with plans to open five more. The group has not committed to a 2010 initiative.

"We're still looking at it very carefully," said Marriage Director Marc Solomon, noting that his group has agreed to wait for another ballot push until it thinks the movement can raise enough money to win.

"Nobody is counting on a court win," Solomon said. "We would love it, but nobody is counting on it."

Backers of a 2010 or 2012 ballot initiative face a problem: how to decide if and when to put it on the ballot, with the full support of the movement.

The passage of Prop. 8 has given rise to new grassroots activity in California, with new groups, even, having been formed in its wake. Now, there are more voices, and it's a more complicated task to reach consensus on the launch of a political fight. Some are raring to go; others are more cautious. Many younger activists were shocked by Prop. 8's passage, and there's a good deal of dissatisfaction with how that campaign went.

The gay rights movement in California includes national-level groups like Human Rights Campaign and the ACLU, state-wide advocates like Courage Campaign and Equality California, and local groups, some with race/ethnic specific focuses.

Those smaller groups could be important to passing a new ballot measure, given that, according to exit polling, African Americans and Hispanics voted in favor of Prop. 8, by 70 percent and 53 percent, respectively. The LGBT minority in California will have to reach out to other minority groups that opposed them in 2008, and race/ethnic-specific groups are looking to do some of that legwork.

As a result, no single entity or oligarchy is in charge of the gay rights movement in California. Conference calls and discussions between groups now focus on how a decision will eventually be made on whether or not to put gay marriage on the ballot--a framework for making the call.

"It's a process of trying to figure out what a campaign structure would look like, and how we should decide whether to launch a campaign," Pizer said.

To Pizer, the legal and political fights are connected.

"I think success in the trial court in this litigation would be very motivating for people, and it probably would spur some of the outreach and educational work in a positive way, because it buoys people's spirits," Pizer said.

A good deal of campaigning would focus on Los Angeles County, which, to the surprise of some activists, voted in favor of Prop. 8 despite being heavily Democratic. As Solomon said, you can't pass a progressive ballot initiative in California without LA County.

Gay rights groups seem to have a good handle on the task ahead of them. They know who voted for Prop. 8 in 2008, and they know where to direct their field efforts.

The task before them is apparent; it's just a question of whether the time is right--whether they think they can win, and whether a minority community that fought for its rights and lost, crushingly, is ready to take up the hard fight again two years later.

If a gay marriage initiative is put on the ballot, whether in 2010, 2012, or beyond, it will be uncharted territory for gay rights groups in the state: an initiative supporting gay marriage has never been put in the ballot in California, and, despite the plethora of gay marriage bans passed in states across the U.S., no ballot measure constitutionally legalizing gay marriage has ever passed.

And, though activists may not be holding their breaths, a federal court victory would be a landmark of its own.

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Chris Good is a political reporter for ABC News. He was previously an associate editor at The Atlantic and a reporter for The Hill.

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