Friday, July 18, 2008

Proposition 8, and why we care

David suggested that I keep y'all updated on Proposition 8 in CA.

First, the background. In 2004, Mayor Gavin Newsome of San Francisco decided that it was inappropriate to deny gay couples the right to marry, and ordered the clerk to give licenses for gay marriages. A joyous but brief window opened before the court nullifed the marriages as illegal. Several of the couples affected challenged the decision in court.

Then, the CA State Legislature (you know, the ones elected by the people?) passed a bill TWICE that would allow gay marriage. This was vetoed TWICE by the governor because of the pending court case.

The Court against all expectation came down with an amazing decision:
    First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.
    Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.
    Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.
    Finally, retaining the designation of marriage exclusively for oppositesex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise — now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

Several efforts to stay this finding failed. (I found particularly amusing the effort of several conservative states to interfere with this internal matter "because their citizens might get married in CA and sue them and this would be expensive.")

However, at the same time, several propositions were seeking signatures to get on the ballot, part of CA's out-of-control initiative process. The most draconian would have repealed even domestic partnership and any protection of gay couples. The one that passed simply says, "Only marriage between a man and a woman is valid or recognized in California."

Remarkably, this will amend the State Constitution by a simple majority vote. But before you go all "will of the people" on me, please reflect that by a simple majority vote, African Americans would have remained "separate but equal" in the Jim Crow South. The point of the Constitution is to prevent abuse of the minority by the tyranny of the majority. That's why the courts exist.

A recent case that claimed this is a revision, not a mere amendment, and thus illegal, was dismissed without discussion. But as Dr Primrose pointed out in the comments,

"All the court did was rule that it was not going to deal with the legal issues NOW. It did not rule on the merits and the challenges that were raised in the petition to the court may be (and will be) later raised if the initiative passes.
    What the court did was not surprising -- it virtually never pulls a ballot measure of the ballot before the election. It prefers to wait to see what happens at the election. If the measure fails, the legal complaints then become moot.
    This was NOT some big victory for the anti-marriage-initiative proponents.

Now the battle is on. Polls are quite close, but contrary to many beliefs, much of CA is really very conservative. The Knights of Columbus, Focus on the Family, and Mormon Church are pouring money into the state to pass this proposition. It's hard to match their dollars. The battle to defend our rights is spearheaded by the coalition Equality for All. As the ballot argument says,

EQUALITY UNDER THE LAW IS A FUNDAMENTAL CONSTITUTIONAL GUARANTEE. Prop 8 separates one group of Californians from another and excludes them from enjoying the same rights as other loving couples.

I and my partner will be marrying in the fall. It is up in the air whether our marriage will still exist in November.

Finally, people say, "but what's wrong with domestic partnership?" Here's what is wrong. EVERYONE knows what marriage is, right? But what's a DP? One story tells that the Director of the gay rights legal group Lambda Legal, who helped draft the DP legislation, found himself in rural CA with his partner in the hospital. Despite being told that they were legal DPs, the hospital would not let the healthy partner into the ER. "We don't do that here," he was told. Sure it was illegal. Sure it was wrong. Sure he could sue their ignorant hindquarters, but at that moment, with his partner sick in the ER, what recourse did he have?

Think of it, straight people. We GLBT have to travel with documentation like a displaced people in Europe that sketches our legal relationship to one another and even then it can be denied. Yet all you have to say is "we're married" and no one asks a question.

This is the face of gay marriage. Please help us keep this a reality: by your witness, your support, and, yes, your dollars.

Update: Reported in the San Jose Mercury news:

A majority of California voters oppose a November ballot initiative that would amend the state constitution to ban same-sex marriage, according to a survey released Friday.
    The Field Poll found that 51 percent of likely voters say they would vote against Proposition 8, while 42 percent say they would vote for it......

While this is good news, it would be fatal to get complacent. November is a long way away and the battle is only beginning.


James said...

Very well said, IT! Who was it who said "injustice anywhere is injustice everywhere"?

I'm linking to yoru article.

IT said...

Thank you, James!

I am relying on Dr Primrose to correct any legal errors....


susan s. said...

Yes! So we who support you in your right to get married must vote in November. Can I vote twice?

IT said...

I think you have to be two people to vote twice, Susan S.

But you gave me a new slogan for the campaign:

Keep IT 's marriage legal!

(After all it would be a shame to have all that effort with theh wedding for naught....!)


klady said...

While I certainly would not have complained if they had yanked the measure from the ballot, I cannot say that I am surprised that they let it go for now. Courts tend to put off messy issues if at all possible. This one apparently has bet on the initiative being defeated so they won't have to wade into the question of what is an "amendment" under the California constitution [fascinating legal question, BTW].

The problem, of course, is that if the measure passes, then it becomes politically more difficult for the justices to decide to invalidate it -- probably much more difficult than the original decision to require marriage. Nevertheless, the ruling to keep it on the ballot was probably inevitable, so nothing really has changed -- November will probably decide it either way.

I just find it irritating that the "other side" has heralded this as some great victory when, for the moment, it only represents the outcome of a procedural skirmish. Whatever. I just hope that enough sensible Californians will find their way to the ballot box come November.

susan s. said...

Yes, I know, but one can always try to vote early and often.

Now let me see, somewhere I think I read a date. But where? SoCal? I live in Berkeley, and I have vowed never to go south of Monterey ever again!
Of course I haven't been invited yet, so it may be moot! :o)

IT said...

I grew up in Berkeley, actually. But I live in the Southland. Our date is in October. It's a small wedding, so you'll all have to experience it vicariously...


susan s. said...

I do very well vicariously!

james said...

Well, legally one CAN vote twice. All one needs to be is a "super delegate." They get two votes for president every four years. How messes up is that.

Anonymous said...

What worries me is that we will see these ballot initiatives every year. With KofC, Mormon (and whoever) money always in play will they not eventually succeed? And married gays and lesbians will fear for their marriages every November. CA needs to address this out-of-control ballot initiative process-maybe in a ballot initiative ;~).


james said...

The local news just had a blurb about Prop 8. According to a statewide pole, of those who plan to vote 51 percent said they agree with the court's decision and plan to vote to keep same-gender marriage legal in California. Let's keep praying.

Elizabeth said...

IT, I do hope that you will let us know the date. I, too, plan to celebrate on your behalf!! As a resident of another state, I can't vote even once, but I'm doing what I can.

Aghaveagh said...

Well, as a resident of the benighted city of Fresno, I will be voting against this initiative, as will my dog Grendel and the five cats...

huh? Dogs and cats can't vote? Next thing you'll be telling me is that two adults who love each other can't get married...

go figure.

Ann said...

All of us who live outside CA and can't vote - can donate to the cause here.

Michael Ejercito said...

I just find it irritating that the "other side" has heralded this as some great victory when, for the moment, it only represents the outcome of a procedural skirmish. Whatever. I just hope that enough sensible Californians will find their way to the ballot box come November.
This procedural skirmish only came about because of the actions of a few organizations, and all they ended up doing was give the other side ammunition.

James said...

It's linked at TTLS again, IT.

David said...

Removed "comment spam" for dating site.

See ? Even the word verification system doesn't keep 'em all out ;)

Josh Indiana said...

Lord have mercy, will the blogmasters please learn that just as SHOUTING IS RUDE, posting 500 words in italics is illegible and self-defeating.

Please learn to use the block-quote feature. Your notion of setting off someone else's writing to give them credit for it is the old technology and the antique ettiquette.

Thank you.