California Proposition 8—We Take It Personally
| November 17, 2008
The authors, who have worked for years for national and international human rights, are not about to let a Mormon Church and right-wing sponsored setback in California stand. They join a recommitted movement to secure LGBT rights—including that of same-sex couples to marry—knowing that the nation has moved forward in understanding the essential importance of equality.
Riding the subway home from Manhattan to Brooklyn on Election Night 2008 was a ride like no other. We fell into a car filled with African-American gay men and their friends yelling each time the subway doors opened, slapping five with strangers, dancing around the subway car with simple, unbridled joy. “Go Obama!” echoed through the subway, called out by everyone regardless of race, gender, age, or any other identifying category. Walking home that evening, smiling at strangers as we passed, we could feel that a new day had dawned.
When we arrived home, we started receiving text messages and e-mails from our friends in San Francisco, warning that not all of us would rise with Obama’s progressive tide in this election. Proposition 8 was gaining ground in California, and the lead, though small, turned out to be insurmountable. This last weekend, knowing we had little time to mourn the loss, we joined some 5,000 people in New York’s streets to protest the California proposition banning same-sex marriage, those passed in Florida and Arizona, and the anti-LGBT adoption ban that passed in Arkansas as well.
California’s vote to take away the civil rights of lesbian, gay, bisexual and transgender (LGBT) people was personally devastating because we had just celebrated our wedding just a month and a half ago in Jaime’s hometown on the San Diego Bay. But it was particularly heartbreaking because California has historically led civil rights movements in the not-so-distant past. The California Supreme Court was the first court in the country to strike down laws prohibiting people of different races from marrying, in the landmark ruling Perez v. Sharp.
To provide a brief snapshot of the legal landscape in California for same-sex marriage: In 2000, voters 61.4 percent to 38.6 percent adopted Proposition 22, creating a statute stating, “Only marriage between a man and a woman is valid or recognized in California.” In an unprecedented move in February 2004, the mayor of San Francisco directed the city clerk to issue marriage licenses to same-sex couples. In August 2004, the California Supreme Court annulled more than 4,000 same-sex marriages that took place in the wake of the mayor’s action, San Francisco’s public officials acted outside the scope of their authority in the absence of a court ruling that limiting marriage to opposite-sex couples in unconstitutional. Following this decision, the City of San Francisco and numerous gay and lesbian couples sued the state of California challenging the state’s discriminatory law and seeking the right to marry.
The case wove its way through the state court system until May 15, 2008, when the California Supreme Court struck down the statute resulting from Proposition 22 as violating the state constitutional right to equal protection under the law. The eloquent opinion spoke in terms of dignity and respect for same-sex couples, their families, and their children, observing that, “in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation—like a person’s race or gender—does not constitute a legitimate basis upon which to deny or withhold legal rights.” The court also interpreted the California Constitution to guarantee the fundamental civil right of marriage to all Californians, whether they are gay or straight, and whether they are in opposite-sex or same-sex relationships.
The dignity and respect accorded to the LGBT community reverberated across the country. But conservative groups and the Mormon Church quickly began a campaign to circumvent the decision by placing Proposition 8 on the ballot. Proposition 8 took one gigantic step farther than Proposition 22 because it not only limited marriage to a man and a woman, but it sought to amend the California Constitution, for the first time, to void equal protection guarantees for one segment of the population, LGBT people.
While we anticipated committing our lives to each other, regardless of the status of the law in California, we could not help but feel anxious that official recognition of our relationship may be fleeting and that fear of difference and prejudice against the LGBT community could win out, even in California. We made our wedding plans swiftly. Jaime’s mother found an LGBT-friendly boat charter. We wrote our vows, weaving Hawaiian, Jewish, Celtic and Cherokee traditions into the ceremony, to reflect our love for diversity and world culture.
On that sunny day on the San Diego Bay, we basked in the love of our parents and siblings. We had each found our partner in life, the one we would turn to in times of joy and sorrow. Yet we knew all too well that the civil foundation for our love, relationship, and family we hoped to create was subject to the whim of others. Our lives were not our own, but rather subject to public scrutiny.
We experienced simultaneous anger, sadness and confusion when the proposition passed by a narrow margin. How could the pendulum of justice swing so dramatically and so quickly, taking away our fundamental civil rights? Why does 52 percent of California voters think that our marriage, our relationship, the lives we are building together in Brooklyn, have any impact on their lives or marriages?
Now we are moved to act. We have collaborated with our colleagues at the National LGBT Law Association regarding pro bono legal assistance to contribute to the cause. The California Supreme Court has been asked to grant emergency relief to halt the proposition from taking effect. In the meantime, we believe, and California Attorney General Jerry Brown has repeatedly confirmed, that a constitutional amendment under Proposition 8 is not retroactive in effect. Our marriage and the thousands of other same-sex marriages performed over the past few months remain valid. This is no solace for the thousands of LGBT couples who may have missed this brief window of hope in California.
When we took to the streets Saturday, the air was electrifying. The clouds parted and the sun was shining on a colorful crowd. Hearing speaker after speaker, we finally realized that, indeed, this is the civil rights movement of our lifetimes.
For years, there have been dedicated advocates working nation-wide to combat discrimination and achieve LGBT equality. Now we will fight with renewed vigor. We also realized that the world is not stacked against us, but rather people of all walks of life believe in equality and understand the reality that oppressing one segment of our national community opens the door wide to oppressing us all. So armed with these small epiphanies, we recommit to living our lives openly and honestly, and in the face of prejudice, to take action and to call for change. No longer will we be told to “sit back and wait.” Now is our time.