Over 200 Attend Center Town Hall on Prop. 8

Speakers Discuss Likely Aftermath of State Supreme Court Ruling

by MARK GABRISH CONLAN

Copyright © 2009 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

PHOTOS, top to bottom: Kate Kendell, Geoff Kors, Mark Solomon, Fernando Lopez (right, with Caroline Dessert), Zakiya Khabir

“One year ago, which is like a nanosecond in civil rights time, we were all sitting in rooms like this or in our homes, waiting to see what the California Supreme Court would do on the marriage cases,” Kate Kendell, executive director of the National Center for Lesbian Rights, told an audience of about 200 at San Diego’s Lesbian, Gay, Bisexual, Transgender Community Center April 2 as the lead-off speaker in a town-hall meeting about the future of same-sex marriage in California in the wake of Proposition 8. Continuing her recollection of the original marriage cases — which culminated in a ruling on May 17, 2008 invalidating the state’s ban on same-sex marriage, which voters sought to overturn by passing Proposition 8 — she literally referred to the court’s ruling as a born-again experience, then showed her bitterness that the California electorate not only did, but could, put the Queer community’s newly won civil rights up for majority vote.

“Usually, you can use these legal victories to celebrate and move forward,” Kendell said. “That’s what happens in a constitutional democracy. What happened in California was, before the champagne in our victory glasses was even warm, we were defending that historic victory at the ballot box. Does anyone have any doubt as to how Brown v. Board of Education [the U.S. Supreme Court’s landmark 1954 ruling that racial segregation in education was unconstitutional] or Roe v. Wade [the 1973 decision upholding a woman’s right to choose abortion] would have fared if they had been put up for a vote just six months after they were decided?”

Kendell acknowledged that in having to campaign against an initiative amending the state’s constitution to restore the ban on same-sex marriage, “we were fighting against a tide of intolerance which we had lost in 33 states,” but said that before the Proposition 8 vote her organization and other groups supporting marriage equality had believed California could be an exception. “When we lost, we filed a court challenge to Proposition 8,” she explained, based on the idea that “if you are going to put a fundamental right before a popular vote, you cannot do it by simple amendment. You have to do it through a vote of the legislature and then a vote of the people, because what’s at stake is the role of the courts in the process and the rights of all minorities.”

Responding to the statements by the justices of the California Supreme Court during the March 5 oral arguments on Proposition 8, in which they appeared to be leaning towards a ruling that the initiative’s sponsors had every right under the state constitution to use a ballot measure to take marriage rights away from same-sex couples, she said, “I cannot imagine this court so tarnishing its own legacy and writing their own obituary as the body that makes judgments about who they do and don’t protect. I hope and — as agnostic as I am — I pray to the ether, the air, the goddess or whatever that this court will do what it did one year ago and vindicate the role of the courts and the rule of law in California.”

Kendell explained that under the law the court has to rule within 90 days of the oral argument — June 5 — though she’s expecting it to be considerably sooner than that, probably in early May. “If Proposition 8 is upheld, it will be a travesty and a very dark day for us who lived in a state where for a very brief moment we actually had equal rights,” she said, “If the court upholds Proposition 8, we’re going to be upset, and we have a right to be, because it’s no longer O.K. to say we don’t matter as much as others. We won’t be violent, but we will not tolerate being pushed back into that place.”

The meeting’s chair, Center executive director Delores Jacobs, allowed the audience to ask Kendell questions before she called the other speakers. They ranged from what it was like appearing opposite Kenneth Starr, the former U.S. Solicitor General under the first President Bush and the special prosecutor against President Clinton, to how the community would respond if the court throws out Proposition 8 and its supporters mount a recall campaign to throw the anti-8 justices off the court, as they have threatened to do. Kendell said that during the successful 1986 campaign that removed Rose Bird, Cruz Reynoso and Joseph Grodin from the court, “the red-meat issue was the death penalty, but the funding came from the insurance industry,” which wanted to reverse the Bird court’s sympathetic rulings in cases brought by consumers and accident victims against insurance companies. “I don’t think there’d be the money or political support” for a recall campaign against the justices of a court that’s been “pretty conservative” on economic issues, Kendell said.

Other questioners asked about the controversial performance of Christopher Kreuger, representing California Attorney General Jerry Brown, on the marriage-equality side in the case, and the court’s apparent willingness to consider civil unions for both same-sex and opposite-sex couples as an acceptable substitute for marriage equality. Kendell made it clear that she doesn’t consider that an acceptable compromise. “We’ve won marriage,” she said. “That is how this society denominates the highest level of union between two people. If straight couples want to give up marriage, that would be one thing, but why should we give up marriage for the comfort of the people who are uncomfortable with us? I don’t think we should have to come up with the mechanism for our continued subjugation.”

Kendell was also asked about one of the most controversial issues surrounding the case: whether a court ruling upholding Proposition 8 would also invalidate the estimated 18,000 same-sex marriages performed in California between June 15, when the original court ruling took effect, and November 4, when Proposition 8 passed. She didn’t seem worried that the court would throw out the existing marriages. “There’s a huge body of law that says an amendment will not be applied retroactively unless it specifically says so,” she explained. “But you couples who got married —and I’m [part of] one of them myself — will have a huge burden, because we’ll be walking in the world with a lot of privileges that we’re going to have to be responsible for, and have an obligation to do more so our neighbors and friends will eventually have that same opportunity.”

The other speakers at the event covered a wide range of perspectives within the Queer community, from officials with Equality California, the Queer-rights lobby in Sacramento, and the San Diego branch of the national Human Rights Campaign (HRC), to activists concentrating on building actions locally. Equality California’s director, Geoff Kors, came with a list of eight bills his group is pushing before the state legislature, only three of which have to do with recognizing same-sex relationships. Two of them already passed — H. R. 5 and S. R. 7, which put the California State Assembly and Senate, respectively, as opposing Proposition 8 and calling on the state’s supreme court to overturn it. The third, the “Survivors’ Home Protection Act” (AB 103), would protect the rights of Gay or Lesbian partners who own a home together but haven’t married or registered as domestic partners. It would allow one such person to inherit the home on the death of his or her partner without having it reassessed at current market value and thereby risking a ruinous increase in their property taxes.

The other five bills on Equality California’s 2009 agenda include SB 572, to declare May 22 “Harvey Milk Day” and name it a “day of special significance” (not a full-fledged holiday); SB 543, which would allow minors (ages 12-17) to seek mental health services without telling their parents (important since many young people who are struggling with issues of sexual orientation or gender identity fear that their parents will retaliate against them if they find out); the “LGBT Domestic Violence Services Act,” designed to increase funding for programs aimed at addressing domestic violence within same-sex relationships; the “LGBT Prisoner Safety Act,” designed to stem violence against Queer prisoners by allowing prison authorities to consider sexual orientation and gender identity when classifying and housing prisoners; and the “Equal ID Act,” which would extend the current ability of Transgender Californians to request a new birth certificate with their current name and gender to Transgender people born in California but currently living out of state.

Equality California was also represented by Mark Solomon, whom the group recruited from Massachusetts to be their marriage director a few weeks before the vote on Proposition 8. “I felt sadness” when the measure passed, Solomon said, “but also optimism that what happened in Massachusetts will happen here. People only move in one direction on this issue. They don’t support us and then change their minds and oppose us.” Solomon explained that the mechanism for amending the Massachusetts constitution is different from California’s; there, marriage equality opponents didn’t have the power to put it before the people directly through an initiative, but they could do so with the support of 25 percent of the state legislature in two consecutive legislative sessions. “We had to persuade 75 percent of the legislature not to put it on the ballot,” Solomon recalled, “and the most persuasive arguments are the ones with people you know. Now that we’ve had a setback in California, these are the kinds of conversations we have to have.”

Fernando Lopez, a local activist with Marriage Equality U.S.A., is mobilizing volunteers to go out and have exactly those sorts of conversations. “We started a project in January to have face-to-face conversations in areas where we lost, and also in areas where we won, so we know we are engaging people and finding supporters in non-supportive areas,” he explained. “We’re able to create dialogue, humanize the issue, and change people from screaming hate speech at us to giving us donations or signing up to volunteer. We are a total grass-roots organization. There is not a single paid person. We are in several states across the country, telling the real stories of people affected by this discrimination. We are redefining the way we do grass-roots activism. I have never seen so much activism and passion to do more. Maybe Proposition 8 was the kick in the pants we needed.”

What Lopez’s group does is recruit volunteers to meet every Saturday at 10 a.m. at Lips Restaurant, 3036 El Cajon Boulevard (near 30th Street) in North Park, for training and turf assignments. Within an hour they’re on the streets, usually in front of shopping malls and other areas of high pedestrian traffic. What’s more, Lopez announced at the April 2 meeting that they’re expanding into door-to-door canvassing as well, building support so that — assuming the California Supreme Court upholds Proposition 8 — the next time the issue is before California voters, marriage equality advocates will have established a broad base of community support well in advance of the campaign.

One veteran community activist who took up Lopez’s challenge, Wendy Sue Biegeleisen, spoke about her experience. Though she’s had an extensive résumé of involvement in the struggle for Queer rights, including many years as security coordinator for San Diego’s Lesbian, Gay, Bisexual, Transgender Pride Parade and trainer in nonviolent “peace monitor” techniques for maintaining order at public demonstrations, what Lopez was asking was new and frightening to her — until she did it. “I’m not the kind of person who likes to solicit people,” she said, “but I went last Saturday and it was great. It was really uplifting. Talking one-to-one with someone is the next step in activism.”

Michelle Krug, another veteran grass-roots activist in the Queer community and a San Diego city worker active in her labor union, said, “I live in a community that voted against us, and I really have found that the major way of making these changes is that people are welcoming when you go into their communities and do something for them.” She cited the recent César Chávez Day events in Barrio Logan, in which she volunteered alongside Center political action coordinator Caroline “Carrie” Dessert [pronounced “Desert”] and her partner. Krug said that working with a real-life same-sex couple demystified the issue for many Latinos who had felt compelled to vote for Proposition 8 because of their religious beliefs, “but you have to be there every day to make that commitment.”

On the national scene, Brian Lachlan, chair of the San Diego chapter of HRC, offered a PowerPoint presentation detailing the outlook for marriage equality across the country as it stood in 2008 and as the national HRC expects it to be in 2011 and 2013. The maps divided U.S. states into four categories: states with full marriage equality, states that offer civil unions or domestic partnerships with the same rights and responsibilities that state gives to married opposite-sex couples, states that offer some benefits to same-sex couples and states that don’t recognize same-sex relationships at all. Despite the passage of Proposition 8, HRC’s maps predicted that California will have full marriage equality (again) by 2011, and they also predicted marriage equality in Iowa — a call that dramatically came true just the day after the meeting, when the Iowa Supreme Court ruled unanimously (as opposed to the 4-3 splits in Massachusetts and California) that their state’s constitutional guarantee of equal protection required an end to marriage discrimination against same-sex couples.

Unless the California Supreme Court overturns Proposition 8, marriage equality will return to California only if the Queer community and its straight allies put an initiative on the ballot themselves to reverse Proposition 8 — and one of the knottier issues facing groups like Equality California and HRC is just when they should seek to have an election. They’ve already started the first step — submitting the initiative’s language to the state and requesting permission to circulate petitions — but they still haven’t decided whether to go for the nearest regularly scheduled statewide election, a gubernatorial primary in 2010, or wait for a presumably higher-turnout election in November 2010 or 2012.

The advantages of waiting are more time to build public support through awareness campaigns like Lopez’s, and the theory that a high-turnout election with a higher percentage of young voters is more likely to pass a repeal. The disadvantage is the perception that the longer the Queer community waits before attempting to repeal Proposition 8, the longer the state-sanctioned discrimination continues and the more people are hurt by it — which seemed to be the concern ruling the room, since a straw poll showed the audience overwhelmingly in favor of putting the repeal initiative on the ballot at the earliest opportunity.

In the meantime, the San Diego Alliance for Marriage Equality (SAME) has announced no fewer than four upcoming events. On Friday, April 10, they will host a rally at 5 p.m. outside the San Diego County Courthouse, 220 West Broadway downtown, and on Tuesday, April 15, they will participate from 4 to 7 p.m. in the “No Taxation Without Representation” demonstration outside the main U.S. Post Office, 2535 Midway Avenue in Point Loma — the only post office in the city that remains open late to accommodate people mailing their tax returns in at the last minute. There is also a “peace monitor” training for security at future events Saturday, April 11, 1 to 5 p.m., at the Joyce Beers Community Center, Vermont Street north of University Avenue in Hillcrest.

SAME is also planning events for the so-called “Day of Decision” — the day on which the California Supreme Court will be announcing its ruling in the Proposition 8 case — and the day immediately afterward. “Win or lose,” Zakiya Khabir of SAME explained, “we will gather at 5 p.m. at 6th and Laurel in Balboa Park. [The group’s Web site has the start time at 6 p.m.] If we win, we will march to Hillcrest and celebrate. Should we lose, we will all march to the Hall of Justice” — the county courthouse location at 220 West Broadway. The day after the decision is announced, the group is organizing another event, a rally and vigil from noon to 5 p.m. at the San Diego County Administrative Center, 1600 Pacific Highway downtown.

Web links:

San Diego chapter, Marriage Equality U.S.A.: http://www.marriageequality.org/index.php?page=ca-san-diego-county

“Camp Courage” skills-building workshop, April 18 & 19: http://www.couragecampaign.org/

Sweetwater Ministry: recruiting Christians who support marriage equality to organize and convince their co-religionists: http://www.sweetwaterministry.org/

Nonviolent direct action: http://www.nonviolence4equality.org/

San Diego Alliance for Marriage Equality (SAME): http://www.samealliance.com/ (general Web site), http://www.dayofdecision.com/ (specific information on the response to the California Supreme Court’s ruling when it’s issued)