The Ball is now in OUR Court

Guest Commentary by John Santoianni, President, Harvey Milk Stonewall Democrats – OC

pride-flags-sunsetToday’s California Supreme Court decision regarding same-sex marriage is exactly as I expected. Proposition 8 has been upheld and existing same-sex marriages are still valid. Everyone I’ve spoken with today has asked me the same question. How were they able to both validate prior same-sex marriages and invalidate future same-sex marriages all at the same time? Unfortunately, the wording of the state Constitution makes this seemingly schizophrenic decision possible. The court stated that it is not their duty to “determine whether the provision at issue is wise or sound as a matter of policy” but to make sure that “the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself” is upheld. Therefore, Proposition 8 is legal but not retroactive. To anyone with a sense of logic, this sounds like they are saying that some gays have the right to be married and some don’t. I say, the court made a cowards choice and decided to avoid a real resolution.

This decision has set a troubling precedent. If the California Constitution can accept an amendment that takes away people’s marriage rights by a simple majority (50% + 1 vote) then no one’s marriage is really safe. Using the court’s interpretation, it would be possible to put a proposition on the ballot that says “Only marriage between people of the same religion is valid and recognized by the State of California” or “Only marriage between people of the same race…” and that would be ok. To those who hold a religious view of marriage, I ask you the following question: If a 50% +1 vote passed the former, would you withhold marriage between a Mormon and a Catholic who are in love with each other?

This court doesn’t have the courage of its convictions. No one on either side is going to be happy with this ruling, so why sacrifice real justice to judicial timidity? It is especially frustrating to those of us who are against Proposition 8. It is difficult to believe that this is the same court that only last summer took decisive action, invalidated Proposition 22, and paved the way for marriage equality! Maybe the threats of impeachment and smear campaigns at reelection time by those in favor of Proposition 8 played a part? They are certainly tactics Ken Starr, the lead attorney for the “Yes on 8” campaign during the hearings, knows a lot about and has no compunction in using. So today, instead of a strong, clear vision of the law the court parsed words to justify Proposition 8 being an “amendment” to the Constitution rather than a “revision.”

They tell us not to fret because “it is only the designation of marriage – albeit significant – that has been removed by this initiative measure.” What do they mean by “only the designation of marriage”? It is that designation which makes it possible for married couples to transport medical decision making authority, to give just one glaring example, beyond our state lines and protects couples from being unfairly treated by other municipalities across the nation. The “albeit significant” expression used in this statement is also quite insulting. It’s like saying “we know this is extremely important and is the lynchpin of your argument, but never mind that.” We must now deal with this reality and prepare for tomorrow.

The barrier to marriage must be destroyed once and for all. I am pleased that the 18,000 same-sex marriages already performed will remain legal. However, I do not agree with the courts conclusion that because we still have Domestic Partnerships available to us, everything is equal. True equality means that gays enjoy the same rights and responsibilities as everyone else. This decision sets up the same kind of “separate-but-equal” treatment that was rejected by Brown v. Board of Education. Unfortunately, we do not have the support we need on the national level to bring this case any further. That is why many local groups, including my own Harvey Milk Stonewall Democrats of Orange County, are working on putting a new proposition together that will reverse Proposition 8 and restore marriage equality to California.

Today’s ruling is not a defeat. Proposition 8 has turned out to be a real eye-opener for the LGBT community and its allies. Sometimes people need a gut punch like this to wake up and see that civil rights don’t just materialize out of thin air. We have to WORK for them. Complacency, not religion or right-wing politicians, is our enemy. Yes, we understand that there will always be anti-gay bigots in the world, but they have no power over us unless we allow them to. Their politics of fear and divisiveness are on the wane in California and America as a whole. The tide is turning. We are awake now! All of us. From the 60’s era protestor who has decided to come out of retirement and hand out leaflets for the cause to the present day High School student fighting to put on a musical that includes gay subject matter. We are finally coming together as a community, with our allies; to make sure future generations of gay men and women are able to live the American dream of life, liberty, and the pursuit of happiness with their husband or wife.