Subscribe to Breaking NewsKendell: Out for justice
With its groundbreaking marriage decision a year ago, the California Supreme Court set us on a path that — despite some setbacks — has led to one marriage victory a week in the past month: A first-ever unanimous state supreme court ruling in Iowa; a huge victory in Vermont, where there was strong enough support for marriage equality to override their Governor’s veto; and tremendous movement in the legislatures of New Hampshire and Maine, with similar progress likely in the months ahead in New York and New Jersey.
The result has been a profound sea change in public opinion, including my own view of what the next month will bring here in California.
Just this week, a new Washington Post-ABC News poll showed “a sharp shift in public opinion on same-sex marriage. Forty-nine percent said it should be legal for gay people to marry” — an 11 point shift from a similar poll conducted by the Post just three years ago.
I have always believed the California Supreme Court should strike down Prop
8 because the law is so overwhelmingly on our side. But I feared that other factors might result in an adverse decision. That fear has now been replaced by hope as courts and legislatures — as well as public opinion — have moved sharply in our direction. The Court can cement its legacy by overturning Prop 8 and upholding our Constitution’s promise of equal protection.
Or it can cause untold pain and hardship to our community and forever undermine the independence of the judiciary and the historic role of the courts in protecting minority rights.
I believe the Court will do the right thing.
Kate Kendell is executive director of the National Center for Lesbian Rights.
I hope Ms. Kendell is correct. Otherwise, we will have to spend a lot of money and effort on passing a proposition that repeals proposition 8. That money and effort can better be spent on the battle elsewhere.
The same justices on the same bench already found that denial of marriage to gay Californians was incompatible with California law. If they reverse themselves, it will be for fear of personal repercussion (being targeted by a Mormon-funded recall attempt) rather than any aspect of the law. They have the cover of courts in two smaller states (Connecticut and Iowa) arriving at the same conclusion. California has little or no legal history of allowing ballot initiatives to strip away rights; the closest equivalent would be the surge in racist laws in the South after Reconstruction, which were affirmed by Plessy v Ferguson. If California’s Justices follow that path, marriage equality will be a relatively minor battleground, because they will have essentially declared war on civil rights law.
California is already in a deep recession. If the Court finds against marriage equality, then it will tarnish California’s brand–the iconic American state, where people from all over the world are welcome to come pursue their dreams. That would do economic damage far worse than the political fallout of undoing a ballot initiative–one which should never have made it to the ballot.
If individual court members are not blinded by fear of losing their seats on the bench due to a backlash by bigots. And if they do the right thing and not uphold blatant violations of human rights in opposition to their own state constitution’s guarantee of equal rights, then the following must be recognized:
(1)Proposition 8 is invalid because it constitutes a revision of, rather than an amendment to, the California Constitution.
(2)Proposition 8 violates the separation of powers doctrine under the California Constitution.
If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8? If Prop 8 is ruled to be “valid”, and if the marriages entered into before its passage stand, how can the status of two sets of same-gendered legal partnerships exists simultaneously in the state — especially if one of them exists in opposition to a state amendment that is so obviously based on religous bias and on invidious hatred of a minority?
I hope that California makes this decision soon.
Kendall says, “. . . and forever undermine the independence of the judiciary and . . .” I can’t agree with that.
If I’ve learned anything in this life, I’ve learned that nothing is forever. As someone said, “Whether times are good or times or bad, one thing is for sure – they will change.”
Neil