by MARK GABRISH CONLAN
Copyright © 2013 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved
The Activist San Diego/SAME Alliance marriage equality meeting, March 18, 2013. Back, L to R: Leo E. Laurence, Zakiya Khabir. Front, L to R: Todd Moore, Eric Isaacson, Fernando Lopez.
The San Diego International Socialist Organization marriage equality meeting, March 22, 2013. L to R: Rachel Scoma, Sean Bohac, Zakiya Khabir.
On March 26 and 27, the United States Supreme Court will hear the two most important Queer-rights cases in its history since the landmark Lawrence v. Texas decision struck down laws against Queer sex in 2003. March 26 is the scheduled date for the hearing in Hollingsworth v. Perry, the federal court challenge to Proposition 8, the initiative California voters passed in November 2008 to end the state’s 4 ½-month experience of marriage equality and legally define marriage as only between one man and one woman. The next day the court will take up the case of a New York Lesbian widow who got charged over $360,000 in federal estate taxes under the so-called “Defense of Marriage Act” (DoMA), which defines marriage at the federal level as between one man and one woman. It’s money she wouldn’t owe the government if it recognized her legal marriage to her late wife.
San Diego activists planned an elaborate series of events in the week leading up to the court hearings. On March 18, Activist San Diego (ASD) and SAME Alliance (formerly the San Diego Alliance for Marriage Equality) put on a community forum at the Joyce Beers Center in Hillcrest featuring attorneys Eric Isaacson and Todd Moore, San Diego Pride administrative and public affairs director Fernando Lopez, pioneering Gay activist and legal scholar Leo Laurence, J.D., and SAME Alliance steering committee member Zakiya Khabir. The meeting centered around two topics: what the Supreme Court is likely to do about Prop. 8 and DoMA, and how activists should respond to the court decision whichever way it goes. (The Court will have to announce a ruling by the end of its current term in late June — unless it decides to postpone the cases or ask the attorneys to reargue them next term.)
Three days later, on March 21, the International Socialist Organization (ISO) held a forum on the Prop. 8 and DoMA cases at the Bamboo Lounge in Hillcrest featuring Khabir, SAME Alliance president Sean Bohac and attorney Rachel Scoma. Not surprisingly, this meeting focused less on handicapping the Court and more on the activist response than the ASD/SAME Alliance session had. The events continue with a rally in San Diego this Monday, March 25, part of a nationwide mobilization for the eve of the Court cases. It takes place at 6 p.m. at the Federal Building, Broadway and Front Street downtown. Afterwards members of SAME Alliance and the Overpass Light Brigade will march to the Interstate 5 overpass and display lighted signs calling for the Court to throw out Prop. 8 and DoMA.
Attorneys Expect Narrow Decisions
When attorneys Ted Olson and David Boies filed the case against Prop. 8 — then known as Perry v. Schwarzenegger — in May 2009, they made it clear that not only did they want it to go to the U.S. Supreme Court but their ultimate objective was a broad ruling that laws barring same-sex couples from legal marriage were unconstitutional under the Equal Protection clause of the 14th Amendment. But according to Isaacson, Moore and Laurence, that’s not likely to happen. Nor, they said, is it likely that the Court will be equally sweeping in the other direction and issue a ruling that states are free to define marriage either to include or exclude same-sex couples. Instead, they said, the court is likely either to rule on “standing” — whether the people involved in the case have the right to court relief at all — or find a narrow procedural ground in both the Prop. 8 and DoMA cases.
Eric Isaacson has been involved in litigation over the right of California same-sex couples to marry ever since 2004, when the First Unitarian-Universalist Church of San Diego in Hillcrest authorized him to file an amicus curiae (“friend of the court”) brief in the initial challenge to the California state law defining marriage as between one man and one woman. At the March 18 meeting he rattled off the long list of faith-based organizations he’s currently representing in the case: California Council of Churches, California Faith for Equality, Unitarian-Universalist Legislative Ministry of California; Northern California/Nevada and Southern California/Nevada Conferences, United Church of Christ; Pacific Association of Reform Rabbis; and California Network of Metropolitan Community Churches.
Ironically, Isaacson said, the Right-wing majority on the current Supreme Court may rule on the marriage cases in ways that achieve a progressive result but further a long-time conservative aim: to limit the number of people who have access to the courts to remedy social wrongs. “One thing conservatives who advocate judicial restraint push is a very narrow view of what constitutes a ‘case or controversy’ under Article III of the Constitution that allows them to throw out cases brought by the American Civil Liberties Union (ACLU), environmental organizations and the like,” Isaacson explained. He mentioned the Court’s most recent ruling on standing, Clapper v. Amnesty International U.S.A., in which on February 26 the Right-wing Court majority issued a sweeping decision that Amnesty International, the ACLU, attorneys for Guantánamo detainees and journalists had no legal right to challenge the government’s secret “anti-terrorist” spy program because they couldn’t prove that they personally had been under surveillance. Writing for the Court majority, Justice Samuel Alito said the plaintiffs had nothing more than a “highly speculative fear” that they might be surveilled, and therefore they couldn’t prove they were being harmed by the program.
Standing became an issue in the Prop. 8 cases when California governors Arnold Schwarzenegger and Jerry Brown, and attorneys general Brown and Kamala Harris, refused to defend Prop. 8 in court. When the Perry case was tried in federal district court before Judge Vaughn Walker in January 2010, the proposition was defended by attorneys representing Protect Marriage.com, the organization that had put it on the ballot and sponsored the official campaign for it. After Judge Walker’s decision throwing out Prop. 8 was appealed to the Ninth Circuit of the federal courts of appeal, the three-judge panel hearing the case asked the California Supreme Court for guidance as to whether the proponents of an initiative had the legal right to defend it in court if the government officials who would ordinarily do so declined. The California court ruled unanimously that they did; otherwise, the court argued, government officials could effectively nullify an initiative simply by refusing to defend it. But that decision isn’t necessarily binding on the U.S. Supreme Court, Isaacson explained.
If the Supreme Court throws out the Prop. 8 case based on the idea that the initiative’s proponents aren’t personally being harmed by the legal recognition of same-sex marriage in California, and therefore they don’t have standing, the likely result is that same-sex couples will be able to marry legally in California, and perhaps in other states under the Ninth Circuit’s jurisdiction, but not anywhere else in the U.S. they don’t have that right already, Isaacson explained. “The Proposition 8 proponents will ask the court to throw out Judge Walker’s ruling and limit it only to the two couples who actually brought the suit” — Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo — “but that is unlikely,” Isaacson said.
Standing became an issue in the DoMA case for similar reasons, Isaacson explained. “The Obama administration concedes DoMA is unconstitutional,” he said. “House Speaker John Boehner created something called the Bipartisan Legal Advisory Group, or BLAG, and it claims to have standing.” (Isaacson laughed at BLAG’s designation of itself as “bipartisan,” which came from Boehner having originally invited House Democratic leader Nancy Pelosi to join — until she found out its purpose was to defend DoMA, whereupon she abruptly withdrew.) “If he doesn’t have the U.S. Senate on board, he can’t claim to speak for the legislative branch. Obama would like the Supreme Court to strike down DoMA rather than put him in the uncomfortable position of refusing to comply with the law. If there is no standing, I would imagine the lower-court ruling [that the Lesbian widow didn’t owe the estate tax because DoMA was unconstitutional] would stand.”
Leo Laurence said his experience as a post-doctoral researcher for California appeals courts in the 1960’s backed up Isaacson’s argument that the Court will look for the narrowest grounds on which they can decide the Prop. 8 and DoMA cases rather than issue a sweeping opinion on either side of the marriage debate. “If there’s a way to rule on a case procedurally without deciding on the merits, that’s generally the way the courts will go,” Laurence said. “I believe the Court is going to say there was no standing. I don’t think they’ll even get to the merits of the issue.”
Levels of Scrutiny
Isaacson said that if the Supreme Court decides that the defenders of Prop. 8 and DoMA have standing after all, their ruling is likely to depend on what level of scrutiny is applied to the case. Ordinarily judges decide whether laws that treat different groups differently are constitutional on what is called “rational-basis review.” That means all they have to do to let the law stand is find some reasonable ground for the way it treats different classes of people. But there are two more severe levels of scrutiny than that: “heightened” or “intermediate,” which is how federal judges view laws based on gender; and “strict scrutiny,” applied to laws based on race. If the Court finds that Gays and Lesbians have faced such a long history of discrimination that they constitute a “protected class” and are therefore entitled to strict scrutiny, Isaacson said, both Prop. 8 and DoMA “would be held unconstitutional.” Even “heightened scrutiny” would “probably” bring down Prop. 8 and DoMA, he added.
“Obama’s change on DoMA was based on the idea that laws targeting Gays and Lesbians should be subject to heightened scrutiny,” Isaacson said. “”In Proposition 8, the Court could say that in states where Gay and Lesbian couples had already been granted all the benefits and obligations of marriage under domestic-partnership or civil-union laws, the Court could say that’s unconstitutional under Romer v. Evans” — the landmark 1996 case in which the Court held that a Colorado initiative barring state and local governments from giving civil-rights protections to Queers or doing anything to “promote” Queer rights was unconstitutional because it put limits on the ability of Queer people to organize and change the laws through the political process.
The other speakers focused largely on the sea change in public opinion that has occurred regarding same-sex marriage equality since the first court test in Hawai’i in 1993 — where the state supreme court hinted that they would rule the ban on same-sex marriage to be a form of gender discrimination, but marriage equality opponents got a Proposition 8-style initiative passed which nullified the case. Todd Moore, who represented former SAME Alliance president Cecile Veillard in the Equality Nine case — nine local activists who were arrested for civil disobedience at a marriage equality demonstration at the San Diego county clerk’s office in August 2010 — noted that Bill and Hillary Clinton have both come out for marriage equality. That was especially ironic because Bill Clinton was the President who signed DoMA into law in the first place. Republican Senator Rob Portman of Ohio, who voted for DoMA as a Congressmember, announced he was reversing his opposition to same-sex marriage because he wants to support equal rights for his Gay son.
“Public opinion has changed,” Moore said. “How does that affect what the Supreme Court will do? I don’t know, but I think the reason they took these cases is there is significant dissension between the states.” Like Isaacson, he said the Court should throw out Prop. 8 using Romer v. Evans as the precedent, because “once the California Supreme Court gave same-sex couples the right to marry, you cannot take it away.” He agreed with Isaacson and Laurence that the Court is not likely to rule “that Gay marriage is a fundamental right,” but what they are likely to do will restore marriage equality to California and allow the federal government to treat married same-sex couples more equally.
Fernando Lopez, administrative and public affairs director for San Diego Pride and former member of the national board of Marriage Equality USA, has also been a witness to the sea change in public opinion on this issue. He admitted he started as a marriage equality activist “selfishly” in 2001 — he and his then-partner wanted their own marriage legally recognized — and he recalled that for years even fellow Queer people regarded marriage as a non-issue. “As recently as 2008, when we ran the decline-to-sign campaign [a failed attempt to keep Prop. 8 from getting on the ballot in the first place], people within our own community wondered why we were standing outside grocery stores arguing for a right we did not have,” he recalled.
According to Lopez, in 1967, when the U.S. Supreme Court ruled that bans on interracial marriages were unconstitutional, only 20 percent of Americans polled supported the right of mixed-race couples to marry. He pointed out that in 2000 California voters approved a ban on same-sex marriage with over 60 percent of the vote — and now the polls indicate nearly 60 percent of all Americans support the right of same-sex couples to marry. “There has been a slew of advocacy and activism, and more and more people coming out in support of marriage equality,” Lopez said. “That’s what’s helping shift the conversation.” Lopez is confident the Supreme Court will invalidate both Prop. 8 and DoMA — and even if they don’t, he added, he thinks that we’ll be strong enough to repeal Prop. 8 at the ballot box.
But Zakiya Khabir warned that the marriage equality movement could be jeopardized by its own overconfidence. “The inevitability feeling happened around Proposition 8,” she recalled. “A lot of people didn’t think California would pass it. I don’t want us to make the same mistake again. Bill Clinton saying DoMA, which he signed into law, is unconstitutional is the result of activism.” She called on people to participate in the March 25 rally and march, and also promoted the SAME Alliance’s call for a “Day of Decision” action whenever the Supreme Court announces its ruling. “We want to see people out in force, out in numbers, when the decision is made,” Khabir said, adding that people can keep track of the action on the SAME Alliance’s Web site, www.samealliance.com
Activism Is Key
The emphasis on the need for continued activism carried over into the ISO’s meeting three days after the ASD/SAME Alliance event. The speakers were Khabir, SAME Alliance president (and fellow Equality Nine defendant) Sean Bohac and attorney Rachel Scoma. Like the attorneys at the ASD/SAME Alliance meeting, Scoma defined the issue in terms of scrutiny. In order to decide the case, she said, the Supreme Court has “to decide whether LGBT’s [Queer people] are a suspect class and therefore laws against them should have heightened scrutiny. If they agree, DoMA is likely to go down. If they don’t find LGBT’s are a suspect class, the government can basically pass any law they want” to restrict their rights.
Scoma noted that the attorneys for the DoMA and Proposition 8 challenges are taking opposite positions on whether the laws they are challenging would pass rational-basis review. “The DoMA lawyers are not saying it would be found unconstitutional on rational basis,” she said. “The Prop. 8 attorneys are arguing the opposite: that exclusion of Gays and Lesbians from marriage doesn’t even pass the rational-basis test.” They had help from Judge Walker, who in his 138-page opinion in Perry, issued August 4, 2010, said he didn’t think there was a rational basis for excluding same-sex couples from civil marriage. His opinion showed how the proponents of Prop. 8 had scrambled to find a reason for the ban on same-sex marriage that made sense, and hadn’t been able to do so.
Like Isaacson and Moore, Scoma said that, “Because California had marriage equality until the voters took it away, the likely outcome is California’s Proposition 8 will be found unconstitutional, but it will not apply beyond California.” Her own opinion, not surprisingly, was, “There’s actually no rational basis for excluding same-sex couples from marriage in any state.”
“I’ve been involved with SAME Alliance and the Green Party of San Diego County, and I found myself in the leadership of the campaign to repeal Proposition 8 in 2010,” Bohac recalled. “SAME Alliance has defined activism as what individuals do in terms of confrontation. We are pressing the voice that gets left out. We were upset that the No on 8 campaign was weeny and weak in not representing Gays and Lesbians” — a reference to the tactical decision the No on 8 campaign leaders made to fight the measure on vague grounds of “equality” and to keep actual Queer people out of their ads and public presentations. “We wanted to bring Gays, Lesbians and Transgender people into the discussion. SAME Alliance has created space [within the Queer movement] for radical thought and allowed for the practice of leadership. We also look to inspire people beyond our group. We form coalitions and communicate the messages to a broader audience.”
Khabir, a member of the local ISO as well as the steering committee of SAME Alliance, talked about the link between the struggles for Queer rights and socialism. “I’m an ISO member, but after Prop. 8 passed I had to think, ‘Why are socialists here?’ As socialists, we want to see a world where people are free to love who they want, as well as free from starvation and oppression. That world is possible, but not if these divisions [over race, gender, sexual orientation and gender identity] still exist. You can’t have socialism without Queer rights and you can’t have Queer rights without socialism. Socialists and LGBT people have a strong history of working together and also a long history of being victims of oppression.”
Chuck Stemke, an ISO member who was running the group’s literature table on March 21 and was also one of the Equality Nine, said, “It’s so great to have SAME Alliance, ISO and Canvass for a Cause [CFAC] together. We’re the people who are pissed off. We’re the protesters who, when something outrageous happens, respond to it.” He and other ISO members in the room announced a follow-up discussion Thursday, March 28, 6 p.m. at the City Heights Recreation Center, 4380 Landis Street, for a broader discussion of Queer-rights issues.
Bohac said that one problem with the marriage equality fight is that the lengthy litigation in the Perry case “sucked the oxygen out of the movement” and discouraged people from doing the kinds of confrontational street actions that made SAME Alliance’s reputation. He remembered how the Equality 2010 campaign, an attempt to repeal Prop. 8 at the ballot box using only grass-roots volunteers, ended when mainstream Queer organizations decided to wait and see what happened in the court case instead. “It’s been going fairly well in the lower courts, but now it’s coming up before a ridiculously reactionary Supreme Court with conservatives who follow their faiths instead of the law,” Bohac said. “They might strike down Prop. 8 and a few aspects of DoMA, but we’ll still need a federal law for marriage equality.”
“Even if we win, there are still battles in other states,” said former SAME Alliance president Cecile Veillard — who was also part of the Equality Nine and who was Todd Moore’s client in the case. “Where it’s already been banned, [the likely Supreme Court ruling] doesn’t do anything. The repeal of DoMA just allows [federal] recognition of marriages in the nine states where it’s already legal.”
“I’ve been ridiculously wrong before about LGBT demonstrations,” said Khabir. “I’ve seen 3,000 people when I expected 50. I’ve seen almost nobody show up when I expected thousands. But groups like ours provide the through line between those ups and downs. Our job is to till the soil as much as possible in the lead-up to the decision, so when it comes down the LGBT movement is ready to pop. In 2008 there were 300 organizations and people didn’t know what to do. Now we’ve got a nucleus of people who know how to protest. I’m going to be making the case in as many venues as I can. What happens that day will be determined by what happens in between.”
SAME Alliance meets the 2nd and 4th Tuesday of each month at the San Diego Pride office, 3620 30th Street in North Park. (By coincidence, the next meeting — Tuesday, March 26 — will fall on the same day the U.S. Supreme Court hears the Proposition 8 appeal.) For more information on SAME Alliance, visit the group’s Web site at www.samealliance.com