What Comes After Prop 8?

While demystifying the legal aftermath of California’s Proposition 8 vote, Tamara Packard offers a perspective on our progress.

While demystifying the legal aftermath of California’s Proposition 8 vote, Tamara Packard offers a perspective on our progress.*

Editor’s Note: This article was written in 2009. Since then, marriage for LGBT people has become legal here in Wisconsin and several other states. As far as Prop 8, on June 26, 2013, the Supreme Court of the United States issued its decision on the appeal in the case Hollingsworth v. Perry, ruling that proponents of initiatives such as Proposition 8 did not possess legal standing in their own right to defend the resulting law in federal court, either to the Supreme Court or (previously) to the Ninth Circuit Court of Appeals. Therefore the Supreme Court both dismissed the appeal and directed the Ninth Circuit to vacate (withdraw) its decision, which had upheld the district court ruling. The decision left the district court’s 2010 ruling intact. On June 28, 2013, the Ninth Circuit lifted its stay of the district court’s ruling, enabling Governor Jerry Brown to order same-sex marriage officiations to resume.

Our marriages are present in our hearts. They are supported by family and friends and more and more by our birth families, too. They are real and blessed in eyes of our religious communities. Today many private institutions—employers, fitness clubs, airlines, insurance companies—also recognize our families. It is only a matter of time before we secure civil marriage equality nationwide. Setbacks are temporary. A quick look back shows just how far we have come already.

Our movement first showed interest in civil marriage equality fewer than 40 years ago, when the San Francisco Chronicle editorialized in favor of it, though it was far from a focal point for our civil rights efforts. Several discrimination lawsuits were filed in the 1970’s after gay and lesbian couples were denied marriage licenses and divorce rights. Courts turned away those claims quickly and often unsympathetically. In 1993, however, Hawaii’s Supreme Court breathed new life into the fight for marriage rights when it found that denying a marriage license to a same-sex couple could constitute sex discrimination in violation of Hawaii’s Constitution. For the first time in more than 20 years of legal challenges, a state’s highest court was on our side.

After the Hawaii decision, other states’ high courts found that the civil protections that come with marriage, and even the institu-tion of marriage itself, must be available to same-sex couples. In the past 10 years, the high courts of Vermont, Massachusetts, Connecticut, New Jersey, and California have all ruled in favor of equal legal rights, based on various protections found in those states’ Constitutions. Gay and lesbian couples in those states have available virtually all of the state-granted legal rights and responsibilities that straight couples have.

The 1993 legal victory in Hawaii also signaled the start of the legislative and voter-based backlash: before a single same-sex Hawaiian couple could marry, Hawaii’s voters amended Hawaii’s Constitution to leave it up to the legislature to define who could marry, and the Hawaiian legislature defined us right out of the institution. That backlash, as we saw most recently in November 2008, has continued. Today, most states with a legislature willing to propose a constitutional amendment banning gay marriage have adopted one, including Wisconsin.

With the painful passage of such an amendment in California in November 2008, Proposition 8, the battle has shifted once again back to the courts. The leading gay legal rights organizations, including Lambda Legal, the National Center for Lesbian Rights, and the ACLU’s Gay and Lesbian Rights Project have sued, arguing that the amendment itself is unconstitutional and therefore invalid.

Here’s the argument, in an over-simplified nutshell: under California’s Constitution, unlike most states, the Constitution can be “amended” by majority vote of the people by referendum only. However, a “revision” to the Constitution must be adopted by a more rigorous process, similar to the amendment process in most other states: the legislature must first approve the proposal by a 2/3 vote, and then put it to the voters. Proposition 8 was a referendum-only vote; the legislature never considered the question. The lack of legislative participation in the process is important under California law: by the time the voters decided Proposition 8 on November 4, 2008, it was too late to merely “amend” the Constitution: by that time, gay and lesbian couples had been enjoying the Constitutional right to marry for months, thanks to a May 2008 California Supreme Court ruling. In that decision, the court found that the equal protection clause of the California Constitution gave all couples, same-sex as well as opposite-sex, the right to marry. That is, the Constitutional right to marriage was in existence (and had been exercised by 18,000 couples) well before the referendum vote. To reverse that right, a “revision,” not an “amendment” was required. Additionally, Proposition 8 purports to deprive the courts of their Constitutional role to protect the rights of minorities against the tyranny of the majority. This too is an important consideration in the “amendment” versus “revision” distinction.

If the Court agrees with the gay rights groups, California will return to allowing same-sex couples to marry. Observers are heartened by the fact that the California Supreme Court agreed to take the case directly, rather than having the litigants battle it out in trial court and appeal their way up to the Supreme Court. The Court has set deadlines for the parties to file briefs, then it will hold a hearing to listen to arguments from the parties’ attorneys and ask them questions. A decision is expected in the first half of 2009.

A victory in California will be just that: a victory that literally applies only to Califor-nia. But a victory in California will still be important to our movement nationally, including here. The existence of civil marriage equality in the largest state of the union will no doubt help change the hearts and minds of people throughout the nation, and will eventu-ally help reverse all of the “marriage bans” currently in place. In the end, however, no minority can achieve equal rights without the support of the majority. We cannot rely on the courts to reverse the bans in place; we must rely on our neighbors to get there. They will come around with our help. After all, look how far we have come in only 40 years!