Kate Kendell

Waiting for Reckoning Day

Filed By Kate Kendell | March 30, 2009 6:30 PM | comments

Filed in: Marriage Equality, Politics, The Movement
Tags: California State Supreme Court, gay marriage, marriage equality, NCLR, Prop 8, Prop. 8, same-sex marriage

As we brace ourselves for another reckoning day - the California Supreme Court's ruling in our Prop 8 legal challenge - I am appalled that our basic rights were put up for a popular vote, and fervently hopeful that the Court will do the right thing. In our democracy, respect for minority rights is as essential as the principle of majority rule.

The California Constitution prohibits the use of a simple amendment process to change the basic ground rules of our government. Therefore, before the people of California can change our government to one in which minorities no longer have a secure entitlement to equal rights, they must use the more deliberative process required for constitutional revision. That is the essence of the argument we have presented to the Court.

It is now up to the Court to decide whether it will become the first in the country to hold that majorities can strip minorities of fundamental rights.

There is so much at stake in this case, not just for the LGBT community, but for people across California. Throughout our history, the principle that laws must apply equally to all has been the bedrock of our democracy. While we have not always lived up to that principle in practice, we have maintained equality as the ideal against which our actions are measured. But if Prop 8 is upheld, it will--shockingly--enshrine inequality as a basic principle of the California Constitution and open the door to future amendments that target other unpopular minorities or that strip LGBT people of additional rights.

I am awestruck by the support we have received--43 friend-of-the-court briefs representing an unprecedented array of civil rights and religious groups, labor unions, businesses, municipalities, and legal scholars. More amicus briefs were submitted in this case than in any other case considered by the California Supreme Court. This is a testament to the strength of our legal argument and the breadth of our support. It also means that people have come to understand what is truly at stake in the struggle for marriage equality: the fundamental rights of a minority, the recognition of families, and the basic dignity and humanity of every lesbian, gay, bisexual, and transgender person.

We await the Court's decision with hope and determination. If the Court stands up for equality and strikes down Prop 8, it will be cause for great celebration. But if the Court does the unthinkable and permits Prop 8 to stand, we will have our work cut out for us. We have more energy, passion, and allies than ever- and we will need them if we must reverse Prop 8 at the ballot box. For now, we wait.


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Stuart & Robert Wyman-Cahall | March 31, 2009 1:47 AM

Though I whole heartedly agree with the premise of your post we must realize that same sex marriage was NOT the issue before the court. The Supreme Court of California has already agreed thet gays SHOULD have the right to marry. The question before the court was a much narrower one...the right of citizens to petition and place an initiative on the ballot without the government interfering.
You're right to say that a majority of voters should never take away the rights of any minority, and the result of upholding prop 8 would certainly do that...and it can be the slippery slope on whch the majority can again in the future press its will against other miorities.
The court is obligated, however, to insure that all citizen are treated equally. It will be interesting to see how they will accomplish that.
They can order that only civil certificates be issued to everybody and let the churches do the "marrying".
And they still may shock all of us and do the right thing by overturning prop 8 becuase upholding the proposition will certainly cause a second class of citizens.
And this idea about re-claiming our rights at the ballot box? It is my hope that he court could overturn prop 8 based on that alone. Imagine years of ballot box intitiatives giving rights one election cycle and a few years later taking them away again. Just like a game of Deal Or No Deal with no end in sight. That would be democracy at its worst.
Stuart & Robert Wyman-Cahall
Las Vegas, NV 89142


Don Sherfick Don Sherfick | March 31, 2009 8:24 AM

I suppose that if we keep repeating over and over again that the majority can't strip a minority of rights, we will all feel better, but the fact is that the statement remains true....they can.

You've even acknowledged that concerning California when you say that in order to strip away minority rights, the other ("revision") process would have to be used. And if it were it also ends with a popular vote. So far as I know, there is a popular vote requirement involved with changing the constitutions of all states.

So it can be done. Of course because of the Supremacy Clause of the U.S. Constitution a non-conforming state constitutional amendment can be overturned, but that begs the ultimate question: The U.S. Constitution itself can be changed to deny minority rights by a popular vote, although in this case an indirect one by popularly elected state legislatures.

And if that happens, no court, Supreme or othersiwe, could overturn what "the people" have done.

Over-reliance on the courts to preserve rights can be myopic in the long run.

Reliance on courts alone won't work, that is for sure. We already know how well the courts handled the post Civil War treatment of freed slaves.

The courts allowed politicians to create a separate society enabling the continuation of supremacist theory.

Decades - nearly a century - later the court decided to reconsider that decision and hold the fallacy of separate but equal accommodation up to the light of reason.

The purpose of the creation of segregated institutions is to mark one as legitimate and the other as less than desired.

Yes, courts are imperfect and historically unreliable on their own. As a part of a disappointingly long slog through democracy in what amounts to a nation of bigots and stubborn knuckle dragging idiots, there is no choice but to subject oneself to the whims of the courts in order to hear at least an occasional decision that provides a version of what we intelligently understand to be what makes this stupid country great.

After all, the justices themselves are in varying degrees subjected to the will of the peep-hole too.

CA Supreme Court Chief Justice George is up for a retention vote in 2010. If he can't interpret the decision he wrote in 2008 as the basis for the argument about the need to reject Prop 8, then what good does his previous decision do for us?

The Xtian zealots will organize a movement to reject George if he acts on our behalf. We ought to plan on doing the same if he doesn't.

That is one way to participate in a democracy that is out of balance.

Oh - another response I thought of would have mentioned the vacillation the US of Ahole did over prohibition. Sometimes we do require acts of incredible short sightedness in order to see how flawed our thinking can be.

Folks, while we all impatiently wait for the courts in California to give all the LGBT community a positive decision on repealing Prop 9 we even outside of the US State of California where many of us through various venues contributed to the defeat of this MOB MENTALITY measure (yes I said it "MOB MENTALITY" the only difference being the Oak Tree was cut down) by popular vote. Agast at the direction and scope of the campaign to defeat this civil rights equality measure. Blindsided by the ineffectivness. We really needed to direct your campaign to the US State of Oregon and looking back to 1992 when our LGBT community was placed on the chopping block. How our community leaders managed to suck the winds out of the measure with our own "NO ON 9". I am pasting in the URL and the gist of the campaign.
http://en.wikipedia.org/wiki/Oregon_Ballot_Measure_9_(1992)

From Wikipedia,(the free encyclopedia)
Ballot Measure 9 was a ballot measure in the U.S. state of Oregon in 1992, concerning gay rights and public education, that drew widespread national attention. Measure 9 would have added the following text to the Oregon Constitution:

“ All governments in Oregon may not use their monies or properties to promote, encourage or facilitate homosexuality, pedophilia, sadism or masochism. All levels of government, including public education systems, must assist in setting a standard for Oregon's youth which recognizes that these behaviors are abnormal, wrong, unnatural and perverse and they are to be discouraged and avoided.”

It was defeated in the November 3, 1992 general election with 638,527 votes in favor, 828,290 votes against.

Supporting sources can be found at this website The lies told by the Religious Right and others was extremely damning however our community rose up to their extremism by showing up at their tables and booths at public venues used the cell phone to alert our supporters and called their bluff effectively. I am not saying that the campaign to defeat Prop 9 didn't have it's positive results I just don't think that other previous campaigns were consulted for what worked and what didn't.

Folks, I forgot to mention that I did not have a direct postion with this campaign to defeat "Measure 9" in Oregon as I was serving in the United States Army during Desert Shield and Storm. During which time I did not hide the fact that I am GAY and as far as I know my fellow soldiers had no problem with cohensivness while in uniform and on duty. While I returned to the state of my birth before the election and I was aware of Candidate Clinton's campaign promise for Gay's serving in the military I had no doubt that even with the hype it would never fly. You see there are and were far to many closet case LGB's serving and have always served proudly in the Armed Forces who were agast at the idea of coming out in the military.

What bothered me from the start was that the electorate was allowed to vote on the civil rights of a group of people. That just should never have happened. Constitutions are supposed to protect minority rights, and that's what it was doing after the previous court decision. But it seems to be too easy to amend the California constitution, and there were no checks in place to ensure that a discriminatory clauses was not added.

I hope against hope that the court decides that civil rights are not fair game to be put on a ballot and that it would be disgraceful to allow the California constitution to continue to contain such a blatantly prejudiced clause.