One and One-Half Class Citizen

by MARK GABRISH CONLAN

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

As I made my way up the stairs inside the San Diego County Administrative Center on May 27, carrying a notebook and a little bag containing a digital camera and video recorder, so I could cover the sit-in demonstration inside the San Diego County Clerk’s marriage license bureau protesting the California Supreme Court’s approval of Proposition 8, I couldn’t help but savor the ironies of the situation. The protest was sparked by a young Queer couple, Michael Anderson and Brian Baumgardner, who chose to go to that room, ask for a marriage license and then, along with some other Queer couples doing the same thing, sit down and occupy the office, refusing to leave until they were either granted licenses or were forced out by law enforcement.

The biggest irony was that I knew exactly where in that large, sprawling building to go because my husband Charles and I had run a similar — but very different — errand there 11 months before. On June 18, 2008, four days after the California Supreme Court’s earlier decision granting same-sex couples a state constitutional right to marry went into effect, Charles and I had gone to that office to get a marriage license. We’d heard the reports that certain clerks in the department were refusing to grant marriage licenses to same-sex couples, but when we got there the woman who waited on us couldn’t have been nicer. Indeed, she had decorated the walls of her cubicle with clippings about same-sex couples getting married in the wake of the court decision, thereby sending a clear signal to us and any other men marrying men or women marrying women that as far as she was concerned, it was a wonderful idea.

Charles and I had been back to that office one more time since: on November 3, the day before the 2008 general election. Fearful not only that Proposition 8 might pass (which it did) but that the courts might rule that it nullified our marriage (which they didn’t), we went to make sure we got a certified copy of our license and had legal documentary proof that we had indeed been married. We got it, and on our way home we stopped at the Office Depot downtown where, among other things, we bought a frame for it. Today it’s displayed on a bookcase above our bed, where it symbolically looks down on us as we sleep, watch TV or make love.

The day before the court announced its decision Charles and I briefly stopped in the living room of Zenger’s associate editor Leo Laurence. A veteran of the Queer liberation movement of the late 1960’s and the first person ever to form an organization called the “Gay Liberation Front” — in San Francisco in March 1969, three months before the Stonewall Inn riots supposedly sparked the modern-day Queer rights movement — Laurence recalled the violence that happened in San Francisco after the slap-on-the-wrist sentence given Dan White for the 1978 murders of Mayor George Moscone and openly Gay Supervisor Harvey Milk (a part of the story left out of the recent biopic of Milk). I didn’t think there would be violence; I thought the community would respond to a negative court ruling more in sorrow than in anger — especially since most community pundits had braced for a ruling against us since the court’s oral arguments on March 5.

That’s what turned out to happen. The events in San Diego in the first two days after the court ruling — the “Day of Decision” march and rally on the evening of May 26 and the actions at the county building the next day — had a great sadness and heaviness about them. Many of the speakers, particularly the ones who hadn’t had long involvements with activist causes and had been brought out to demonstrations for the first times in their lives by the shock of Proposition 8’s passage, literally fought back tears as they spoke. They knew what their fellow citizens — or at least the 52.5 percent of voters who had passed Proposition 8 — had just told them: that they were less than equal, that in a real sense they were less than fully human, and that they had no rights the majority were bound to respect. The court decision had only compounded the grief by saying to the Queer community — or, as Justice Carlos Moreno put it in his expressive dissent, to any minority — that under California’s constitution the minority’s “rights” exist only at the sufferance of the majority, who can take them away at any time by a simple majority vote.

It’s out of a sense of my own sadness over this issue that one chant on the May 26 march route I didn’t join in was the one that went, “Shame on you, Supreme Court!” I don’t think the justices need to feel a particular sense of shame over the impossible position they were put in by the marriage issue in general, the passage of Proposition 8 in particular, and the ease with which the California constitution can be amended by any interest group with deep pockets, a reservoir of community support and a willingness to lie and engage in rank fear-mongering to get the voters to vote their way. Voices in our community who, like San Diego Lesbian, Gay, Bisexual, Transgender Community Center director Delores Jacobs, called on the court to find the “courage” to invalidate Proposition 8, or the writers of the leaflet announcing the May 26 action who said that moves to legitimize same-sex marriage in Iowa and other states were building “momentum” that should sway the California court’s decision, were speaking from a fundamental misunderstanding of what courts actually do and how and why they do it.

In a sense, there were three camps on the California Supreme Court. One was the lone voice of Carlos Moreno, who had joined chief justice Ronald George’s original opinion in favor of same-sex marriage in May 2008 and rightly saw the passage of Proposition 8 and his six fellow justices’ votes to uphold it as a threat to all minority groups that their rights under the state constitution can be voted away at any time by a sufficiently determined and willful majority — and that only the guarantees of the federal constitution, as interpreted by the federal courts, stand between California’s minorities and sweeping discrimination against them. Another camp on the court consisted of the three justices — Marvin Baxter, Ming Chin and Carol Corrigan — who thought the court should never have allowed same-sex couples to marry in the first place and therefore can hardly be accused of inconsistency in voting to uphold Proposition 8.

The third camp consists of the justices who seemingly did change their minds — chief justice George, who wrote the court’s opinions in both cases, and associate justices Joyce Kennard and Kathryn Mickle Werdegar. Just how hard an issue this was for them, especially for Ronald George, can be seen by comparing the two opinions. The one from May 2008 is written in soaring terms and contains language like “the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual’s opportunity to live a happy, meaningful and satisfying life as a full member of society,” rights which, George ruled in May 2008, could not be denied on the basis of sexual orientation. The one from May 2009 is written in cramped legalese and turns on the basis of the difference between a constitutional “amendment” and a constitutional “revision” — the sorts of hair-splitting distinctions attorneys get paid hundreds of dollars per billable hour to make.

What changed for Ronald George, Joyce Kennard and Kathryn Werdegar was not their sense of courage or shame — it was the law that they as judges were charged to interpret. They simply could not get past the logical absurdity of declaring a section of the California constitution to be in violation of the California constitution. The point made rather ineptly by the attorneys arguing to invalidate Proposition 8 — and with superb eloquence by Justice Moreno in his dissent — that if you take away the rights of one minority at the ballot box you can do that to any minority was lost on the three justices who switched positions. As George himself said in the March 5 oral arguments, they were no longer interpreting the same constitution as they had the previous year when they ruled in favor of a state constitutional right to same-sex marriage — and as George said in his opinion, it’s not the court’s business to decide whether or not it’s too easy to amend the California constitution to deprive a minority of rights, just to acknowledge that the proponents of Proposition 8 had followed the constitutional process to reverse the court’s original decision and there was no way the state constitution could be read to deny them the victory they had won at the polls.

The fact that the decision in the Proposition 8 case was based on the law, and not on notions of “courage” or political momentum, was also apparent by the fact that the part of the decision upholding the estimated 18,000 marriages made between same-sex couples in the four and one-half month “window of opportunity” between June 15 and November 4, 2008 was unanimous. Even the three justices who had opposed same-sex marriage rights in the first place joined in the part of George’s opinion that ruled that Proposition 8 did not specifically state it would be retroactive, and therefore it could not be read that way. Ironically, Meg Whitman, former eBay chief executive who’s running for governor as a Republican in the 2010 election, was criticized by fellow Republicans for being “soft” on same-sex marriage because, while she supported Proposition 8, she also supported the court ruling upholding the validity of the already contracted same-sex marriages — despite the unanimity of the court on that point.

The weirdly split decision of the California Supreme Courts puts me and my husband in an odd position indeed. When I saw the T-shirts and stickers at the May 26 and 27 protests that said, “Second-Class Citizen,” I wondered what that made Charles and me. We can’t really call ourselves second-class citizens since we are legally married in the state of California — we were before Proposition 8 was passed and we still are — but we can’t really call ourselves first-class citizens, either, because people just like us, same-sex couples who have been together as long as we have, are just as committed to each other and deserve the mutual rights, responsibilities and protections of legal civil marriage just as much as we do can’t have what we have now.

So the morning after the decision, as I was writing my journal about it, I coined the phrase “one and one-half class citizen” to explain how I feel now and what my husband’s and my truly anomalous position under California law is. I joked that I felt marriage in California had become like a Popeil ad — like those products that are direct-marketed on TV by breathless announcers who scream, over the slide containing the company’s address, phone number and (these days, at least) Web site address, “Order now! Before midnight tomorrow!” Order now — before the voters force us to withdraw this offer!

It’s diabolically unfair that Charles and I get to be married only because we were both politically savvy enough to realize that we were facing a potential voter-imposed deadline and we’d better make sure we got hitched well before Proposition 8 went to the polls. Other couples who thought they had all the time in the world to make that decision — including younger couples who might have wanted, like responsible young straight couples, to wait until they were really sure of the enduring strength and solidity of their relationships before taking the plunge into legally sanctioned matrimony — found themselves S.O.L. after November 4, 2008. Yet another irony in the whole situation is that opponents of the Queer community are always accusing us of demanding “special rights” — yet, by passing Proposition 8 and denying the right of same-sex couples in California to marry in the future while leaving our marriages intact, they’ve effectively given Charles and I, and the other couples who answered the Popeil ad in time, “special rights” we neither wanted nor expected.