Will the California Supreme Court Strike Down Prop 8, or “Willy-Nilly Disregard” Its Duty?

March 31, 2009

by Evan Wolfson, Executive Director of Freedom to Marry, and author of Why Marriage Matters

Posted March 30, 2009 | 11:27 AM (EST) on The Huffington Post

If the March 5 oral argument before the California Supreme Court was any guide (which oral argument isn’t always), Chief Justice Ronald George may be on the verge of making a terrible, heartbreaking mistake.

The Court is due to rule soon on a set of challenges to Proposition 8, the November ballot-measure that stripped the freedom to marry away from committed same-sex couples. The challenges are supported by preeminent African-American, Hispanic, and Asian/Pacific civil rights organizations; cities such as San Francisco and Los Angeles; teachers and child-welfare professionals; religious leaders; businesses and labor unions; and advocates for same-sex couples and their families. All of them have asked the Court to uphold the bedrock principle of American constitutional government that a simple majority may not selectively vote away a fundamental right from a minority targeted for invidious, suspect reasons.

Most who saw the oral argument perceived Chief Justice George and Justice Joyce Kennard as straining to justify their apparently likely votes to uphold Prop 8. Their barrage of hostile questions and comments suggested that the civil rights advocates were asking the Court to, in Justice Kennard’s words, “willy-nilly disregard the will of the people.” But in fact the Constitution — itself the “ultimate expression of the people’s will,” as Chief Justice George recalled in 2008 — spells out two separate procedures for change: one for ordinary “amendments,” the other for more significant “revisions” such as Prop 8. Revisions, the Constitution says, require a more deliberate, careful process including review and a greater-than-mere majority vote by the Legislature before a measure is placed on the ballot. The Prop 8 forces chose not to follow the rules, including the constitutional safeguard against willy-nilly votes mandated, yes, by the people themselves. Indeed, shortly before the argument, the Legislature passed a resolution urging the Court to strike down Prop 8 because the Prop 8 forces in their zeal deprived the Legislature of its constitutional responsibility to review the measure.

The Court has the duty to strike down Prop 8, a measure that, while it received a narrow majority, should not have been on the ballot in the first place. The Court should explain that the interests of all of us, even a temporarily disgruntled majority, are better served when the rules are upheld. The Court should remind the public that, as the U.S. Supreme Court has said, “There is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.” That restraining principle is an essential pillar of equal protection. The very idea that the Court would permit a simple majority to even inadvertently discard such a defining element of the Constitution is distressing.

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Waiting for Reckoning Day

March 30, 2009

Kate’s Blog: Out for Justice

As we brace ourselves for another reckoning day—the California Supreme Court’s ruling in our Prop 8 legal challenge—I am appalled that our basic rights were put up for a popular vote, and fervently hopeful that the Court will do the right thing. In our democracy, respect for minority rights is as essential as the principle of majority rule. The California Constitution prohibits the use of a simple amendment process to change the basic ground rules of our government. Therefore, before the people of California can change our government to one in which minorities no longer have a secure entitlement to equal rights, they must use the more deliberative process required for constitutional revision. That is the essence of the argument we have presented to the Court. It is now up to the Court to decide whether it will become the first in the country to hold that majorities can strip minorities of fundamental rights.

read more from Kate’s Blog: Out for Justice

Gay Marriage on the March

March 30, 2009

Legislatures in Vermont and New Hampshire are poised to legalize same-sex unions.
The Los Angeles Times

Vermont and California appear to be sliding in opposite directions these days, and we’re not talking about tectonic plates. As the institution of marriage undergoes seismic shifts, Vermont is moving from civil unions for same-sex couples toward full marriage, while the California Supreme Court is weighing whether to uphold Proposition 8, which stripped marriage rights from gay and lesbian couples.

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Binational, Same Sex Couples Face Immigration Problems

March 30, 2009

by Mike Swift | Mercury News

Shirley Tan’s calm and happy life — San Mateo County housewife, mother of twin 12-year-old boys, singing in the church choir — blew up at 6:30 a.m. on Jan. 28, with a knock on the front door. Within minutes, the immigration agent standing there had the 43-year-old Tan in handcuffs. She is scheduled to be deported to her native Philippines on Friday.

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Words Matter

March 27, 2009

By Jackie Goldberg | The Daily Journal

Last May, the California Supreme Court’s powerful and eloquent In re Marriage Cases decision explained in ways no previous court had why restricting the familiar, esteemed title and status of marriage to heterosexual couples – and relegating lesbian and gay couples to the obviously inferior status of domestic partnership – is inherently unequal and demeaning. Even as the proud author of the domestic partner statute (AB 205), I did not hesitate for a moment to marry my partner of 29 years once the court made that dream a reality.

Chief Justice Ronald George’s majority opinion in Marriage Cases methodically noted that marriage has a “long and celebrated history,” that it is “unreservedly approved and favored by the community,” and that it performs a critical function of publicly validating family relationships. George recognized and emphasized that denying the marriage imposes “appreciable harm on same-sex couples and their children.” When the state adopts different terminology – different “nomenclature” – for the committed relationships of lesbian and gay couples, our chief justice emphasized, it validates discrimination and reinforces the notion, too long accepted in our culture, that gay people are “second-class citizens.” In short, this watershed decision acknowledged that labeling gay family relationships differently separates them from heterosexual families and amounts to segregation. It no more represents equality for gay men and lesbians today than “separate but equal” schools did for African American children a half century ago.

The court’s conclusion that this segregation is harmful, wrong and must end was thrilling for all of us who have lived our lives labeled as “less than” and excluded from one of society’s most esteemed institutions. For many of us, the chief’s authoritative clarity made us believe again that our courts really can be custodians of “justice for all” when firm principles matter. For many, gay and heterosexual alike, the ruling redeemed legal process in this sometimes cynical age.

The measure of that redemption less than a year ago now may be the measure of our concern now after the Supreme Court oral argument earlier this month in the cases challenging Proposition 8. To my surprise, questions from some justices suggested they may be preparing to retreat from their vital recognition that the nomenclature of marriage holds immense significance for same-sex couples, our families and society as a whole. Indeed, some of their questions hinted that they may be preparing to rule that the name “marriage” – and participation in the rituals, traditions and shared meaning of that institution – may not be so important after all. In other words, if a bare majority of voters assigns gay family relationships a different and lesser title and status perhaps it is, constitutionally speaking, no big deal.

Today, my worst fear is not that we may lose the argument over whether a measure like Proposition 8 can be enacted as a constitutional amendment. Rather, my worst fear is that in upholding voters’ unfettered power to enact discriminatory measures like Proposition 8, the Supreme Court may go further and trivialize the right and conceptions of equality it so powerfully affirmed less than a year ago.

It would be one thing for the court to uphold Proposition 8, saying: “Even though we do not agree with the voters, and even though Proposition 8 imposes separate and unequal treatment of gay and lesbian citizens, and even though it is inconsistent with our longstanding commitment to equality, California’s constitution requires us to let Proposition 8 stand.” A decision like that would be a setback, but it would not deprive us of even more than Proposition 8 took.

Much harder to accept would be a ruling that tried to minimize the harm of upholding Proposition 8 by suggesting that access to marriage is about a mere word and doesn’t mean that much to same-sex couples and their families; and that a separate-but-equal nomenclature for gay people poses no serious constitutional problems, and inflicts no appreciable harm. Even if such a ruling were intended to limit Proposition 8’s consequences for gay people and other disfavored minorities, the trivialization of marriage would hardly be worth the cost. The decision in Marriage Cases was not simply eloquent and groundbreaking, it was right.

We have seen why many of those fighting to deny marriage to gay and lesbian people do so, and while their views may be sincerely held, they are not benign. Many are fierce in contending that gay people are immoral and that a society that treats homosexuals as equal is sowing the seeds of its downfall. And they say they have a duty to put their beliefs to work in the world. We must never forget that similar convictions have fueled deeply harmful fights against justice throughout our history – to preserve slavery, to oppose immigration, to segregate African Americans, to marginalize those of minority faiths and to deny equal rights to women. We do not win those fights by minimizing the hurt of labeling and exclusion. Indeed, this is when principles matter.

There were bright spots during the oral argument. Some of the questions suggested the court will confirm that the roughly 18,000 same-sex couples who married before Election Day remain married, and that our state must respect them as such just as it does different-sex married couples. That would be good news for those of us who are married, and also because continuing legal respect for us will let us continue to show Prop. 8’s wrongheadedness. But if the court were to add that marriage doesn’t matter much – that there isn’t much difference between domestic partnership and marriage – I fear such commentary would diminish the benefit of a ruling upholding the pre-Proposition 8 marriages of California’s lesbian and gay couples. Most heterosexuals value their own marriages immensely, and a high court ruling minimizing marriage seems unlikely to change that. Thus a decision suggesting that “marriage” doesn’t matter much would likely be read by many as meaning that it doesn’t matter for gay people, even those who are married. And as the chief justice so insightfully explained before, state validation of the idea that gay people’s family relationships are different will be understood to mean that they are “less than” and will in turn reinforce the longstanding belief that gay people are second-class citizens. The social consequences likely would be bad, too, because so many already disrespect us.

The potential our marriages have to continue the normalization process to everyone’s benefit, would be diminished. And married same-sex couples who know firsthand that separate institutions like domestic partnerships are not equal would have something infinitely precious needlessly tarnished, and probably would find ourselves again, needlessly, in a diminished status.

And for those heterosexuals who don’t read a court message seeming to trivialize marriage as just addressing gay people’s marriages, what reaction? Perhaps resentment of those whose quest for justice prompted the court in the end to posit that marriage is not so special for anyone.

Should the court conclude that our constitution does not allow it to strike Proposition 8 as invalid, I hope at least it does not retreat from its powerful statement in Marriage Cases last May. The California Supreme Court got it right the first time: Words do matter, and the institution of marriage does as well. Separate is not equal for lesbians and gay men – whether or not that means having to win an election to restore our Constitution’s promise of equality.

Jackie Goldberg is a former California Assembly member and currently teaches UCLA interns in the Compton Unified School District. She and her spouse were married on Oct. 5, 2008.

This article appears on Page 6 of The Daily Journal.

Mayor Bloomberg: We Will Pass This Bill

March 27, 2009

Days after Senator Charles Schumer announced he now supports same-sex marriage, Mayor Michael Bloomberg said he will put the pressure on Albany to pass a law allowing gay marriage in New York State.

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Join Kate Kendell at the Next Town Hall Meetings

March 25, 2009

Los Angeles and San Diego, CA

Town Hall Meetings
Wednesday, April 1, 2009 and Thursday, April 2, 2009

With Kate Kendell, Esq., NCLR Executive Director

April 1: LA Gay and Lesbian Center
McDonald/Wright Building
1625 N. Schrader Blvd.
Los Angeles, California

April 2: San Diego LGBT Community Center
2313 El Cajon Blvd.
San Diego, California

LGBT (lesbian, gay, bisexual and transgender) community centers, in partnership with Equality California and allied organizations throughout the state, are joining together to host a series of Town Hall meetings in early April. Join NCLR Executive Director Kate Kendell in Los Angeles and San Diego for two of the meetings to be held statewide.

The open meetings—which will take place in Los Angeles, San Diego, Santa Barbara, Fresno, Sacramento, Orange County, San Francisco and Long Beach—will include an analysis and Q&A with legal experts regarding the court case, a review and discussion of current grassroots actions and initiatives to promote marriage equality, and an open discussion regarding strategies and actions following the supreme court ruling and the ongoing fight for the freedom to marry in California and equal relationship recognition nationwide. Regardless of how the court decides in the Prop 8 case, it will not be the end of the struggle.

Members of the community will be invited to join in discussions about: organizing in California, strategies for securing equal recognition at the federal level; keeping community members and allies energized and involved; and other issues of concern.

For more information about these events, click here