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I know how you feel today. I have felt it too. Anger, despair, disappointment, sadness, grief, shock…. We’ve been wrung through the gamut of emotions these past many months—and even years—and yesterday was no exception. I think we all started off the day with a sense of elation and hope, and ended it on the other end of the spectrum.
There is of course no way for us to know how the court will rule, even based on what we saw in oral argument yesterday. But our general sense is that they will likely rule to uphold Prop 8.
It’s hard to fathom; even harder to accept. It was hard to come home to my kids last night and not feel like somehow, all of us had failed them profoundly. They know their moms and our family is as deserving of equal protections as any other—how do I explain to them that the world at large isn’t there yet?
But at the dinner table last night, Sandy and I talked to our kids about what happened in the courtroom yesterday. I said, “But you know what gives me hope?” Right away, my 12-year-old son Julian said, “The next generation,” and my seven-year-old daughter Ariana chimed in at the same time, “Your family.” That was the most powerful moment of my day.
My kids understand, sometimes even better than I do, what’s real in life and what really matters. We have to reflect that hope back to them, and the belief in what is ultimately possible.
The truth is that I—and the rest of us here at NCLR, including our own brilliant Shannon Minter—are not devastated. We’re not defeated. We are disappointed, to be sure—make no mistake about that. But we are nowhere near being destroyed. We are taking a few days to lick our wounds and dust ourselves off; we got knocked down yesterday.
I know some of you are asking how on earth we can even pick ourselves up and continue this fight. A supporter emailed me this morning, saying, “It’s like a knife in my heart. I want to throw up. I’m not a good fighter. I just want to crawl in a dark hole…. But it’s hard to stay afloat in all of this. I don’t know how you fighters do it.”
I know this place; I have been there. And I am grateful to not be there today. But this is what I say to this supporter and to anyone reading this and needing to hear this—this is how we climb out of that hole and renew our commitment: it is the coming together and knowing we are out here for each other that is the rope ladder out of that hole. When I am feeling down, I have people around me who tell me it’s not the end, even if it feels like it. They help me out of the dark place. This is what a community does for each other.
Today, I am here to tell you: it is not the end, even if it feels like it. All of us at NCLR are here to help remind you that you will make it out of the dark place. Yes, we have a lot of work ahead of us, a lot to do. It’s clear we haven’t done enough. That is disheartening. But it is also important to remind ourselves how far we have come—California is still a state where we enjoy unique protections, even without marriage. And we’re now part of an unprecedented national dialogue, which is a key and critical ingredient to moving a social justice movement forward.
And so as we gear up, what’s also important to remember is that we have this work to do because we’re still in this fight. It is nowhere near over. Five years from now, we will all look back and see yesterday and this period as history.
We are going to win—the struggle towards justice goes in only one direction.
Keep your heads up and your hearts open. Look out for each other. Give yourself a break. Take a deep breath and I’ll talk to you soon.
(Cross-posted at Out for Justice.)
In her rebuttal, Stewart points out that there is a clear line between what can be done by revision, and what can be done by amendment. She emphasizes that it is not appropriate to take away a fundamental right for a select group through the amendment process because when the majority votes on a rule that will not apply to itself, the democratic process is not functioning the way it should.
With that, the argument is over. These three hours have gone by incredibly fast, and we saw some amazing advocacy from Shannon, Terry Stewart, and the other attorneys for our side. We also saw some tough questioning from the Court. It is impossible to predict the outcome of any case based on the questions asked during oral argument, but we did get a sense of some of the issues the justices are especially concerned with. Most importantly, it was very clear that the Court is fully engaged with the issues and has given, and will continue to give, this case the intense consideration it deserves.
We can expect a decision within 90 days. To find out about the decision as soon as it happens, you can text ‘nclr’ to 69866 to join NCLR’s Mobile Alerts. We’ll text you when the CA Supreme Court issues a ruling in our case to overturn Prop 8.
Shannon opens his rebuttal by pointing out that there is an important link between popular sovereignty and the equality principle that has been missing from the discussion in this argument so far. Popular sovereignty is legitimate ONLY when all people are equal. We cannot trust the normal political process to operate fairly when groups can be singled out on the basis of a status like sexual orientation. So when the Court upholds equality, the Court is protecting the legitimacy of the democratic process itself.
Justice Kennard goes back to a question discussed during Shannon’s argument earlier this morning: did Proposition 8 obliterate the Marriage Cases decision? Shannon’s response is that Proposition 8 obliterated the holding that same-sex couples were entitled to equal respect for their family relationships. (This is an important difference. Shannon’s answer makes clear that Petitioners do not believe that Proposition 8 undid the Court’s Marriage Cases holding that sexual orientation is a suspect classification – that holding placed sexual orientation on the same constitutional level as race, sex, and other characteristics that should not be the basis of discrimination.)
Kennard follows up, stating that Proposition 8 did not take away the entire bundle of rights that go with recognized family relationships – it took away only the label of marriage for same-sex couples, but left intact the holding that sexual orientation is a suspect classification. She asks, “Is it still Petitioners’ view that the sky has fallen in?”
Shannon responds that the very serious constitutional and human harms that the Court found in the Marriage Cases as a result of the exclusion of same-sex couples from marriage, the harms to their equal respect and equal dignity, will be exacerbated by Proposition 8.
Kennard points out that, assuming that this Court were to uphold Proposition 8, LGBT people have the right to go to the people and present an initiative. But as Shannon says in response, LGBT people “would be put in the untenable position of doing that as formal constitutional outsiders[.]“
It seems clear that the Court is very focused on whether Proposition 8, in addition to eliminating marriage for same-sex couples, also takes away the Court’s Marriage Cases holding that sexual orientation is a suspect classification. Chief Justice George states that by making the argument we have made, Petitioners “are conceding a far greater impact and effect of Proposition 8 in removing rights from same-sex couples” than Starr does – Starr concedes that Proposition 8 eliminates the designation of marriage, but does not disturb the Court’s recognition of the other important rights that LGBT people have won. He asks Shannon, “don’t you view the scope of Prop 8 as taking much less away from what was established in In re Marriage Cases?”
Shannon emphasizes the impact that a decision upholding Prop 8 will have on same-sex couples and families, answering that “having their families singled out on basis of a characteristic bearing no relationship to their ability to contribute to society marks [same-sex couples] as second-class citizens.” This gets us back to the core of this case, and the core of what is wrong with Proposition 8: no minority group should be singled out in the Constitution, on the basis of a characteristic like sexual orientation, race, sex, or religion, without at least receiving the procedural protections that the Constitution provides through the revision process.
Starr’s final point on retroactivity: the primary consideration should be the intent behind Proposition 8, and to decide what the intent was, the Court should look at the past 107 years of history in California.
Chief Justice George responds that the Court could just as well decide that fairness means that couples who have relied on the marriage laws deserve to keep their marriages.
Chief Justice George asks why, given the fact that couples rely so heavily on their marriage rights, the drafters of Proposition 8 did not make it clear that Prop 8 would also take away the existing marriages of same-sex couples. Was it because that would lessen the chances that Proposition 8 would pass? And if that’s true, shouldn’t “the tie go to the runner,” meaning that Proposition 8 would not apply retroactively?
This is a great question. There is no doubt that the proponents of Proposition 8 did everything they could to ensure that it would pass, including misrepresenting their intentions about whether it would apply retroactively. As Chief Justice George’s question points out, the proponents should not be able to have it both ways.
Justice Kennard returns to the point that there is no evidence that voters who voted for Proposition 8 expected that the marriages of same-sex couples would be invalidated. Starr disagrees, saying that the “context” of California history was also in voters’ minds, but Justice Kennard contradicts him, saying that the “context” here is the clear language of Proposition 8.
Several times throughout his argument, Starr has tried to make the point that Proposition 8 is “limited” and therefore valid. Obviously, that is not how it seems to us, or to the civil rights groups who are participating as amici on our side. There is nothing limited about a law that targets minority groups by eliminating fundamental rights, selectively.
Justice Kennard has asked about retroactivity. Starr states that he does not believe that Proposition 8 “invalidates” the marriages, but does deny them “recognition.” So, the couples did enter into marriages, but now the marriages cannot be recognized by the state for any purpose. But clearly, from the perspective of any married couple, this effectively invalidates the marriages.
Justice Chin rightly asks whether that is fair to the couples who relied on the marriage laws. Starr answers that there was a “swirl” of “uncertainty” about whether the marriages would be valid because Proposition 8 was pending. But as the Court points out in response, the law is the law, and the law at the time was that same-sex couples could marry. Starr’s argument here is very weak.
Justice Chin asks for Starr’s response to our argument that the purpose of the Equal Protection clause is to protect minorities. Starr states that “each of us is a minority of one” and that all rights, in some way, protect minorities. He goes on to say that all the same, there is no constitutional problem with what Proposition 8 does, even if it is not a good idea.
This statement simply ignores our argument that the problem with Proposition 8 is not just the Equal Protection clause, but the principle of equality that is woven throughout the structure of our government. A change to that principle, like Proposition 8 because it selectively targets LGBT people, is a change to how our government work for us, a change that is so significant that it cannot be done with an amendment.
Justice Werdegar asks whether the people, under Starr’s view of the revision/amendment distinction, could have taken away the right of same-sex couples to form family relationships, bring up children together, etc – the domestic partnership rights. Starr clearly states that yes, if Proposition 8 had done that, it would still be valid.
Justice Moreno asks, could same-sex couples be precluded from adopting children by amendment? Again, Starr’s answer is yes.
As we pointed out in our briefs, this is the exact threat that the equality principle of the Constitution is meant to address. And, although the justices have not yet asked about this, Starr’s argument also means that the people could, for example, take away rights from a specific racial group or religious group, using the amendment process.