One Step Forward …

by MARK GABRISH CONLAN, Editor

Copyright © 2010 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Written before the most recent development in the federal case challenging Proposition 8 — the good-news, bad-news decision of the Ninth Circuit Court of Appeals to delay same-sex marriages in California until at least December, but also to consider the all-important issue of whether the supporters of Proposition 8 even have legal standing to appeal — this editorial from the summer 2010 print edition of Zenger's Newsmagazine shows what a roller-coaster this issue has been and how the Queer community needs to be militant and ready for a long-term battle for full equality before the law, including marriage rights.

Twice San Diego’s Queer and allied communities have surprised the state and the nation with the vibrancy and intensity of their commitment to marriage equality. In November 2008, during those first dark days after a small majority of California voters passed Proposition 8 and took away our right to marry those we love and wish to share our lives with, the largest protest demonstration wasn’t in Los Angeles or San Francisco, but right here in San Diego. And on August 4, the day federal district judge Vaughn R. Walker ruled that Proposition 8 violates the equal-protection and due-process protections of the United States Constitution, up to 3,000 San Diegans turned out for a celebration in the streets of Hillcrest — an event whose organizers had expected only a fraction of that number.

Judge Walker’s decision is indeed a cause for celebration, not only because it strikes down Proposition 8 but because its core is a series of 80 “Findings of Fact.” They take up 55 pages of his 136-page decision and constitute a meticulous series of statements vividly eviscerating every ugly and hateful stereotype that has ever been flung against Queer people and every one of the pathetically bigoted, prejudiced arguments the proponents of Proposition 8 used to inflame a bare majority of California voters into reinstating the ban on legal recognition of same-sex marriages. As Kevin Keenan, executive director of the San Diego/Imperial Counties chapter of the American Civil Liberties Union (ACLU), put it at the celebratory rally in Hillcrest on August 4, California Supreme Court Chief Justice Ronald George’s May 2008 opinion striking down the state’s same-sex marriage ban was full of “soaring, beautiful language about equality.” Judge Walker’s opinion, by contrast, marched rather than flew, in what Keenan called “an orderly procession … [of] strong, well-supported facts … that obliterates the other side’s factual claims and looks to the process of appeals.”

Judge Walker heard a long succession of expert witnesses, including psychologists, historians and even a “social epidemiologist,” Ilan Meyer, and allowed them meticulously to debunk centuries of myths and lies that have been used in the social stigmatization of Queer people. He noted that the plaintiffs challenging Proposition 8 called 17 witnesses, including nine experts, while the defense called only two — and withdrew two others after their pre-trial depositions were more favorable to our side than theirs. Judge Walker even wanted the proceedings televised statewide — though, in a decision with ominous ramifications for the fate of the case if and when it reaches the U.S. Supreme Court, he was shot down by Justice Anthony Kennedy, the presumed swing vote on the court, who wrote its two most powerful and insightful decisions upholding Queer rights (Romer v. Evans, 1996; and Lawrence v. Texas, 2003) but since then has provided the deciding vote to allow the Boy Scouts of America to continue discriminating against Queers and atheists.

Judge Walker’s decision is a strong, carefully crafted ruling that not only throws out Proposition 8 but finds that Queers are an historically oppressed class deserving of “strict scrutiny.” This is an even more astonishing statement from a federal judge than a state supreme court justice in a liberal state like California because, though the California courts have long since acknowledged gender discrimination as deserving of “strict scrutiny,” the U.S. Supreme Court has never granted “strict scrutiny” to any oppressed groups except racial minorities. In other words, Judge Walker is calling on the federal courts to grant Queers a level of civil-rights protection they’ve never before been willing even to extend to women. Though the ruling is no more than the first step in a lengthy and still uncertain legal process, it’s nonetheless a major step forward in our community’s struggle for equality.

While both Walker’s conduct of the trial and his meticulously fact-based opinion seemed aimed at building a record for eventual review by the Ninth Circuit Court of Appeal and an ultimate decision by the U.S. Supreme Court, at press time it was unclear whether that will actually happen. That’s because, on August 12, Judge Walker ruled that the so-called “intervenors” — the sponsors of Proposition 8 who presented the case for it after California Governor Arnold Schwarzenegger and Attorney General Jerry Brown refused to defend the initiative in court — don’t have legal standing to present an appeal because they haven’t personally been harmed by the decision. Though it may seem unfair on its face that the side that lost in the trial court can’t appeal the decision, ironically that’s actually the result of a series of laws pushed by conservative lawmakers aimed at making it more difficult to use the federal courts to challenge racial and gender discrimination, immigration proceedings and other types of cases supported by progressives.

At the same time, many Queer people were puzzled by the fact that the ruling didn’t allow same-sex marriages to resume in California immediately. On August 4, Judge Walker accompanied his opinion with a “stay” — legal-speak for “delay” — that kept it from taking effect until the other side could appeal. Eight days later, he extended the stay for six more days so the Ninth Circuit Court of Appeal would have a chance to rule on whether or not he’s right to deny the Proposition 8 supporters the right to appeal based on standing. Over the past few days I’ve heard from a number of people who don’t understand how a judge can decide that our constitutional rights have been violated and then on the same day rule that they can continue to be violated for days, months or even years, depending on how long it takes for the judicial process to work itself out.

Meanwhile, Judge Walker’s decision has inevitably become the latest front in the culture wars. The hysterics on the talk-radio and tea-party Right have been savaging Judge Walker since the ink was still wet on his opinion (or, more accurately, since it was coming off the Internet and being printed out). They’ve argued in typically screaming terms that “one judge in San Francisco” — they don’t even deign to speak his name! — has the effrontery and sheer gall to put his own opinion above the will of the voters who passed Proposition 8. (American judges have been acknowledged as having that right ever since 1803, but these people’s sense of history is as deficient as their sense of ethics and morality.) More recently, they’ve seized on Judge Walker’s alleged sexual orientation — he’s never come out as Gay but he’s widely believed to be — and said that predisposed him to the Queer-rights side of the case and he should have disqualified himself from hearing it for that reason.

The great frustration of the marriage equality issue has been the almost Newtonian cycle of action and reaction that has taken place, in which every judicial triumph for our community has been followed by a political reaction aimed at shutting down our right to marry our partners. The first state supreme court to find that Queer people have an equal right to marriage was Hawai’i’s, in 1993 — and that decision was reversed by a 2-to-1 margin by the state’s voters three years later. Even worse, it inspired the 1996 Defense of Marriage Act — passed by a Republican Congress and signed into law by a Democratic president, Bill Clinton — that forbade the federal government from legally recognizing any marriage other than between one man and one woman and ensured that same-sex couples couldn’t claim any of the federal benefits of marriage, from Social Security survivors’ benefits to the right to sponsor foreign-born spouses for immigration.

The yin-yang cycle continued in 2003, when Massachusetts’ high court ruled that same-sex couples had the right to marry — and the Right responded by placing anti-marriage initiatives on the ballots of 20 states, mobilizing enough of their voters not only to pass every one of them but to help re-elect George W. Bush as President. The May 2008 ruling by the California Supreme Court allowing same-sex marriage in turn galvanized the Roman Catholic and Mormon churches and other opponents of marriage equality to kick in the money and volunteer resources to pass Proposition 8.

Now a federal court ruling finding the same-sex marriage ban unconstitutional has led to threats from the Right to restrict the courts’ powers of judicial review even further. It may also galvanize the current drive on the part of Right-wing politicians and tea-party activists to rewrite the Fourteenth Amendment, the post-Civil War constitutional change on which most successful civil-rights litigation in the federal courts has been based. Their stated goal is to end the guarantee of citizenship for anyone born within the United States regardless of whether their parents are citizens, legal residents or undocumented immigrants, but if Judge Walker’s decision stands — either for lack of a party with standing to appeal it or by higher courts agreeing with him — the Right may respond either by reviving the push for a federal marriage amendment to eliminate same-sex marriage in the U.S. once and for all, or proposing a thorough rewrite of the Fourteenth Amendment to limit the reach and scope of its equal-protection and due-process clauses.

The lesson we need to learn is that court victories don’t create rights; at best, they give previously oppressed and disenfranchised groups hunting licenses to pursue their rights politically. It’s no accident that the most intense period of civil-rights activism in the African-American community was the 10 years after the U.S. Supreme Court ruled racial segregation unconstitutional in Brown v. Board of Education (1954). So far we’ve done a lousy job of protecting our judicial wins on marriage equality in the political arena. Every state whose voters have had a chance to take away our right to marry has done so, some by narrow margins (like the five-percent spreads in California in 2008 and Maine in 2009), some by overwhelming votes like the crushing 9-to-1 defeat in Kentucky in 2004. Judge Walker’s decision is a major victory for our community, but it’s also a challenge to redouble our efforts and get ready for the Mother of All Battles in America’s culture wars.

There’s a story that when Benjamin Franklin left the convention that wrote the U.S. Constitution, he was accosted by a woman in the street who asked him what form of government the convention had given us. He replied, “A republic — if you can keep it.” Likewise, Judge Vaughn Walker has acknowledged our right to marry the partners of our choice — but only if we can stay mobilized politically and do the hard work it will take to keep it.