Guest Blogger

Let Them Eat Cake

Filed By Guest Blogger | June 03, 2008 11:00 AM | comments

Filed in: Marriage Equality, Politics, The Movement
Tags: California State Supreme Court, Gavin Newsom, gay marriage, LGBT history, marriage equality, Robin Tyler, same-sex marriage

[Editors' Note:] Robin Tyler is one of the Original Plaintiffs in the CA Supreme Court Lawsuit, Tyler v. County of LA. In fall 2008, Robin will be filming her one woman comedy show, Always A Bridesmaid, Never a Groom.

Wedding cake that is. And "them" means every one of us. Everyone!

Everyone has the right to be treated equally. And that means the right to be legally married. Here, in the state of California, where Diane Olson and I were the initial lesbian litigants on this matter, we finally had our day in court. And what a day it was! A very courageous and just court applied the very basic tests of our American ideal of equality.

To be quite honest, we were both shocked by the scope of the decision. Diane, whose grandfather, Culbert Levy Olson, was the first elected Democratic Governor of California (1938-1942) and ran on the platform of 'Separation of Church and State,' said, "My grandfather would be very proud of us today." Both of us, together 15 years, wept when we heard the ruling.

The CA Supreme Court decision wasn't just historic because of their ruling for marriage equality. It was historic because, for the first time in American history, the ruling applies the strictest test, one of "suspect classification," on questions regarding any state law or policy that discriminates on the basis of sexual orientation. This meant that the 4-3 decision by the court, not only legalized our right to marriage, but also extended to sexual orientation the same broad protections against bias previously saved for race, gender, the disabled, and religion.

So our marriage equality lawsuit became the Trojan Horse, an exquisite wedding gift to all of us, in which all of our other legal rights rode to victory In the State of California.

This stunning decision was written by Chief Justice George, one of three Republican appointees who ruled on our behalf.(the fourth was a Democratic appointee). The George court has been seen as very cautious and very middle of the road. He is the same Chief Justice who previously nullified the City of San Francisco's marriage licenses, deeming them to have been granted illegally, and insisting that the cases work their way up through the courts. Luckily, when this Initial ruling came down, on March 11, 2004, our case had already been filed in Los Angeles. (Feb. 24)

Our lawsuit was not a reaction, as many of the press has reported, to the annulled San Francisco marriages.

It was an action, announced by our attorney, Gloria Allred at the Beverly Hills courthouse at 9 AM, Feb. 12, 3 hours before Gavin Newsome married our good friends, Del Martin and Phyllis Lyon. She stood with Diane and I, and Rev. Troy Perry and Phillip Ray DeBlieck, who were filing with us, asking the state of California to recognize their Canadian marriage.

Rev Perry, founded Metropolitan Community Churches In 1968. Troy had been marrying same-sex couples In his Church since 1969. I had begun working for same sex marriage rights In 1974, and both Troy and I took part In marriage protests (At the first gay March on Washington In 1979, we held signs up In front of the IRS building In DC saying "Tax us, Marry Us). I emceed the first marriage ceremony at the 1987 lesbian/gay March, and Troy spoke. Over five thousand couples participated. Troy officiated the marriage ceremonies at the 1993 and 2000 LGBT marches on Washington, where there many thousands more attended.

Some attorneys within the gay legal community were angry at us when we announced the lawsuit. (Indeed, angry is very much an understatement.) They said we had not 'consulted' them." Excuse me?

We were the pioneers, the odd couple, a Jewish lesbian and a Christian gay minister who had worked for marriage equality for almost 40 years!

They said the court was too conservative and that we would lose. Well, if we didn't try, wasn't that losing by default?

They said that this would create a backlash. But, as Martin Luther King wrote in his letter from a Birmingham jail, "how can there be a backlash, when we have not gone forward." Although domestic partnerships had offered us great legal protection, they were not equality under the law. Separate is not equal. They said we would trigger a California constitutional amendment against same-sex marriage. But the Initiative Prop 22, which prevented same-sex marriage was already legal in California. 61% of the people who had voted In California In 2000 had passed It. This Initiative, which already prevented us from marrying, was what the CA Supreme Court struck down.

Yes, If the signatures are validated, there will be a CA constitutional amendment on the Ballot In Nov. But consider this: prior to the decision in our case, 51-49% of the people in California were against same-sex couples being able to marry, yet a CBS poll taken on May 16, the day after our victory, said that now 57% in California are now for equal marriage rights, and only 43% are against them!

The California Supreme Court decision is rich with historic parallels. California in 1948 was the first state to strike down laws banning interracial marriage, leading a nationwide drive to junk the bigoted laws, and culminating, 19 years later, in the 1967 Loving v Virginia Supreme Court decision striking down such laws around the nation. Mildred Loving, who was of both African American and Native American descent and who just passed away on May 2nd, counted herself as a supporter of both interracial and same gender marriage before she died.

In a Los Angeles Times article on May 18, Chief Justice George indicated that he saw the fight for same-sex marriage akin to the legal battle that ended laws banning interracial marriage. He also realized that this ruling more than any other thing he does as Chief Justice, will define his legacy.

Diane and I agree. Chief Justice George, I don't know if the laws of the State will allow it, but if you are free that day, we would consider it an honor if you would marry us.

Opponents of equal marriage rights for gays and lesbians are fond of pointing to national opinion polls which show a minority of support for such rights. What they conveniently omit is the fact that huge majorities opposed inter-racial marriage rights during the era when the courts struck down the racist laws. A 1958 Gallup poll found that 96% of white Americans opposed inter-racial marriage rights. An overwhelming majority still opposed equal marriage rights for interracial couples at the time of the 1967 Loving decision. It wasn't until 1991 that the majority of Americans believed interracial couples should have the right to marry.

Yet, in a 2007 Gallup poll, 61% of Americans 34 years and younger, believe that same gender couples should be able to marry.

But it's important to remember that part of the genius of our American legal system is precisely that the majority does not have the right to abrogate minorities' rights. That is what the court system is for, and that is why we filed the lawsuit. We know that hate is an industry and raises enormous amounts of money. But the radical right does not have the right to hide their prejudices behind religious beliefs and use fear tactics to scare those who feel we might be harming the value of their marriages. Giving equal rights to one group does not diminish the value of those rights for another. Love doesn't divide, it multiplies.

This Supreme Court decision was not just a legal case. It was a validation of the hopes expressed in decades of grassroots activism.

As everyone runs for the credit, and the sound bites, Diane and I would like to thank the following heroes.

Thank you, to the tens of thousands of lesbians and gay people who never gave up hope, who nationally marched, protested, picketed the post offices on tax days, and along with us, led by Marriage Equality USA and Metropolitan Community Churches applied for marriage licenses every Valentine's Day for years with the dream that one day, we would be treated equally under the law.

Thanks to our attorney, Gloria Allred, and her law firm, Allred, Moroco and Goldberg, who took the case pro bono and had the courage to file the first lawsuit In California challenging the denial of marriage licenses as being unconstitutional.

Thank you, Rev Troy Perry and Metropolitan Community churches, for working for the past 40 years, for marriage equality, and especially, for being my friend.

Thank you deputy San Francisco attorney, Therese Stewart, for standing in front of the Supreme Court and giving what will be known as one of the most brilliant, legal arguments on behalf of our community. We had great representation from other attorneys, but what you said and how you presented It will go down in history, and we will be forever grateful.

Thank you Mayor Gavin Newsom, despite the enormous resistance you received that weekend from some San Francico leaders in our community, for having the courage and the commitment to marry Del Martin and Phyllis Lyon at noon on Feb. 12, 2004. You are our hero! You, a Democrat, put an issue the Democratic Party had run from for decades on the front pages of every newspaper In America. And, Gavin, your doing that did not lose John Kerry the Presidential election.

Thank you Del Martin and Phyllis Lyon, for writing the first pro-lesbian article which I read in Canada in 1959. Your article for Daughter of Bilitis caused me to come out of the closet at age 16 and to commit myself to fighting for lesbian and gay rights.

And last but not least, thank you Molly McKay and Davina Kotulski, PhD., from Marriage Equality USA, for being the original and lasting leaders In the California marriage equality movement.

It has been an honor to work with you in the past, and will be in the future.

Of course, we will never forget, nor stop fighting for those of you in states across the nation, including those whose courts or legislatures have passed punitive constitutional amendments and laws against recognizing your loving relationships nor extending to you the rights and benefits of marriage.

As we bask in our victory here in California, Diane and I, and Troy and Phillip understand that we, as loving committed couples, still do not have one civil right on a Federal level.

So after I marry Diane and we have a happy celebration, we all will continue to fight the injustices that have been perpetuated on our community for so very many years.

Being 66, I hope that within my lifetime, I will see this Federal recognition achieved, and that Diane and I will be able to celebrate -- finally, at long last -- on a national level, Equality for All.

(Crossposted from the Huffington Post)


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Robert Ganshorn Robert Ganshorn | June 3, 2008 1:16 PM

Bravo, I thank your mother for bearing you, your partner for loving you, and the tenacity to get a seemingly impossible thing accomplished. Whether people choose personally to marry or not, withholding it, (I have discovered with the help of TBP) does make second class citizens of us all.

You are an inspiration. Thank you.

Great to hear that you're continuing the fight!