On The Legal And The Personal In The Prop. 8 Case

The Sacramento Bee will host a live webcast discussion with legal experts about the implications of the California Supreme Court's ruling on Prop. 8, on minority rights, the First Amendment, equal protection and even religious freedom. It promises to be a good discussion, and it starts at noon.

But considering that the Court has, for now, given up on its ability to protect the civil rights of the minority in the face of mob rule, the logical arguments must also incorporate the emotional ones, and what must be now taken into account are the personal stories, highlighted here by state lawmakers.

Assemblywoman Nancy Skinner, D-Berkeley, confided in a Capitol press conference that her daughter is lesbian.

"This is a decision that affects all Californians in a very personal way," Skinner said of the ruling on Proposition 8.
"It impacts my family in saying that somehow my daughter's love for the woman who is her partner is not as valid as the love others have for the opposite sex."

Skinner appeared at a news conference with the Legislature's four openly gay members, all Democrats - Sen. Mark Leno, San Francisco; Sen. Christine Kehoe, San Diego; Assemblyman John Perez, Los Angeles; and Assemblyman Tom Ammiano, San Francisco.

San Diego Mayor Jerry Sanders, a Republican, spoke briefly at the event, noting that he has one daughter who is lesbian and the other "straight."

"They don't have the same rights today," Sanders said.

I want to add my voice to that personalization by highlighting this section of an LA Times piece on some of the 18,000 married couples, now granted separate rights than their fellow gays and lesbians.

Julie Nice, a University of San Francisco law professor specializing in constitutional and sexuality law, sees the emergence of the legally married gay class as yet another inconsistency in the nation's laws governing same-sex marriage.

"This kind of chaotic patchwork is not sustainable," Nice said of laws recognizing the right of gays to marry in five states, granting recognition to legal marriages conducted elsewhere in a few others and now California's validation of the pre-Proposition 8 marriages while denying the status to other gays [...]

Several gay couples were in attendance as West Hollywood officials sought to chart a path forward in the fight for same-sex marriage rights after the high court's decision. Although Mark Katz, 58, and Robert Goodman, 48, continue to be recognized in the state as legally married, they deemed the ruling "tragic."

"This is as if we were freed slaves living in a slave state," said Goodman, a career counselor. "We were able to keep our marriage, but none of our brothers will be able to marry."

Mark Katz is my cousin. The rhetorical bomb-throwing must run in the family. But they are wonderful people, with an adopted son, and while yesterday's ruling secured some of their civil rights, they are not satisfied with being put on a kind of island, where their friends and fellow citizens must live under a separate system.

In this sense, I understand fully the federal district court action being represented by former Bush v. Gore foes David Boies and Ted Olson to challenge their denial of marriage licenses in California. The federal judiciary has a role to play in upholding the 14th Amendment and ensure equal treatment under the law. From a practical perspective, a conservative Supreme Court may issue a 21st-century Plessy v. Ferguson and set back the cause of gay rights in the states for decades, a frightening thought. But the legal logic at work here is unassailable.

The ultimate outcome of the lawsuit depends, as usual, on Anthony Kennedy. He has been consistently good on gay rights issues, but I suspect he would only sign onto a more limited ruling saying that states must have convert civil unions and domestic partnerships into marriages, or else not recognize same-sex relationships altogether, if even that. The best case scenario - a Loving v. Virginia-style invalidation of all bans on same-sex marriage, including DOMA and state constitution amendments - would probably only be possible if someone like a (preferably LGBT) visionary like Pam Karlan or Kathleen Sullivan is appointed to the Court in time to push a 5-4 majority toward a bolder opinion.

The legal ramifications of this are truly troubling, and ought to be examined thoroughly. But my first thought turns to my cousin. And those familial connections, and the new connections forged through organizing, will eventually be how these rights are achieved for everyone. While the courts should protect minorities - Loving wasn't put to a vote - the world in which we live demands civil actions for civil rights. And so did the world of the 1950s and 1960s, actually. Contra the robots on the right, public opinion does move political action in legislatures and the judiciary.

Openly gay LA City Councilman Bill Rosendahl has some further thoughts, arguing persuasively for a national action at the national level for the same benefits and rights for gay couples, the ones heterosexual individuals and couples take for granted.