We’re still married and still fighting!

May 26, 2009 by Pastor Dan.

[Full disclosure: I am a married gay man, and I remain legally married to my husband in spite of Proposition 8 and today’s California Supreme Court decision.]

Yes, the news is discouraging. And yes, the paperwork handed down by the Court is really daunting. You can read the Court’s 7- page news release (more thorough than the sound-byte journalism you will get on TV). If you’re really up to it, read the Decision, concurring and dissenting opinions, 185 pages total. I have only begun to slog through this, so my thoughts are provisional even to my mind.

It seems the key to the Court’s decision is that it finds that Proposition 8 was narrowly constructed to limit the designation of civil marriage to heterosexual couples.

It is disappointing, at one level, that the Court therefore finds that the “No on 8″ side of the argument is not correct in its legal argument that Proposition 8 was really a wholesale revision of the state constitution rather than a mere amendment. Amendments may be added by a simple majority of voters, but revisions face a more difficult uphill battle.

But in its analysis and explanation of its reasoning the Court emphasizes that only the designation of marriage— the label, the word “marriage” itself—is made off limits to same-sex couples by Proposition 8. In its reasoning, it expressly explains that virtually all the rights which are available to same-sex couples, as explained in its May 2008 decision called In re Marriage Cases, remain intact. Here are two brief quotes from pp. 6–8 of the decision.

[T]he provision added to the California Constitution by Proposition 8, . . . properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitions in the cases before us. Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in [last year’s Court decision] — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” . . .

[I]t is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples’ state constitutional rights, as those rights existed prior to adoption of the proposition, in order to be able to assess properly the constitutional challenges [in this present case] . . . . We emphasize only that among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage—albeit significant—that has been removed by this initiative measure.

So the Court finds that Proposition 8 is a mere amendment, not a wholesale revision, and therefore was permissible under the initiative process by which it was adopted. So Proposition 8 stands.But the Court’s language indicating that Proposition 8 was narrowly focused reveals the true weakness of the Proposition. Its drafters and supporters, among them the Mormon church and the Catholic church, achieved a very narrow and small victory by depriving the unmarried of the designation “marriage.”

Here are my observations:

• Proposition 8 did not obliterate Domestic Partnership, which has most if not all of the rights of civil marriage. Domestic Partnership is not changed by the decision of this Court.
• Proposition 8 did not tie the hands of the California legislature to add to Domestic Partnership legislation any and all remaining marital rights in order to make Domestic Partnerships virtually identical (separate but equal).
• Proposition 8 did not erase the estimated 18,000+ same-sex marriages which were contracted in 2008‘ unlike the court’s decision to void the 4,000+ same-sex marriages performed in San Francisco in February–March 2004. So California continues to have more legally-married same-sex couples than any other state.
• By upholding the legality of these 18,000+ marriages and by finding that all rights available to same-sex couples are still intact with the exception of the designation of “marriage,” the Court has essentially weakened the intent of the supporters that “only marriage between a man and a woman is valid or recognized in California.”

You may remember the decision of California Attorney General Jerry Brown last summer to change the wording for the November ballot. In his July 3, 2008 ballot title and summary, the wording was changed to read: “Eliminates right of same-sex couples to marry.” In light of today’s decision, it seems more accurate to say that Proposition 8 “Eliminates right of same-sex couples to use the word ‘marriage.’”

What, after all, does it mean that a marriage is “recognized”? The intent of the Proposition 8 supporters was probably that there would be no “legal recognition” of a same-sex marriage. If that was their intent, they failed on November 4, 2008 because there are 18,000+ marriages which are valid and have legal recognition, as the Court affirmed today. That recognition will have to extend to any aspect of California law in which a person’s marital status is involved. In short, Proposition 8 was toothless to chew up the rights of same-sex couples already married, even if it has the power to prevent more couples from using the word marriage.

Because of this decision, the very idea of “recognized” has been hampered for the homophobic and conservative citizen. They will continue to see married lesbian and gay couples in public places, and can do little else except not “recognize” them.. Like, turn their heads and pretend not to see the reality.

So, is this the end? Does this decision in the Supreme Court of California put the whole matter to rest once and for all? Well of course: not! As many groups have been stressing more loudly in recent weeks, Article I, Section 7.5 will be back on the ballot, as soon as 2010. For example:

• Love Honor Cherish has been working on the repeal initiative for many months, and will be at the public rally tonight in West Hollywood.
• California Faith for Equality is the faith community’s response to Proposition 8.
• Let California Ring is a coalition of about 50 organizations.
• InvalidateProp8.org will have to re-message itself as Overturn Prop 8

• WhiteKnot.org is one of several groups working on the Meet in the Middle event this coming Saturday in Fresno, California, to build bridges up and down the state.

The bottom line for me is that because Proposition 8 has allowed 18,000+ exceptions and therefore failed to prevent gay/lesbian marriage in California, and because it also failed to convince the Court that marital rights should be taken away from same-sex couples, it will be easier to persuade the voters that trying to take away fundamental rights is futile, and that Section 7.5 has to go.

And unlike last summer and fall, the campaign to overturn Section 7.5 will have to involve and feature lesbian and gay couples rather than to hide us from the public view. We have to start recognizing our own marriages before we can expect the electorate to recognize them. 

— Pastor Dan Hooper, Los Angeles

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