The Ryan Thomas Collection

The ongoing drama that is Prop 8 continued to play out this past week, like a well written Shakespearean play, or rather an episode of Desperate Housewives.

In a surprise move by California Attorney General, Jerry Brown, the chief law officer of the state has officially asked the California Supreme Court to overturn Prop 8 – the constitutional amendment to ban same sex marriage in the state. Originally, Brown had gone on record in November telling Californians he would defend Prop 8 in court, saying it was his duty as Attorney General, despite his personal disapproval of the amendment.

Brown’s announcement on Friday is a complete 180 for the State Justice Department, as the AG has now filed with the courts that, “Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.” Additionally, Brown argued Prop 8 conflicts with the Declarations of Rights (Article I, Section I), the fundamental rights of Californians. This section was also used by the Court to define marriage as a fundamental right for all Californians. He stated that Prop 8 must be invalidated because it is ”inconsistent with the guarantees of individual liberty.” Typically, the Attorney General’s position carries significant weight with the courts.

Lawyers for Yes on Prop 8 (including Kenneth Starr), who also had to file their arguments with the courts Friday, commented on their disappointment with Brown. Yes on 8 lawyer, Andrew Pugno, stated, “It’s unfortunate that the attorney general would not do his duty to defend the will of the voters.” However, Brown and his legal team researched court precedent, as well as the marriage ruling in May 2008, and found that their office could not legally defend Prop 8, particularly because the May ruling defined marriage as a fundamental right.

Kenneth Starr stated that Prop 8, “does not broadly seek to diminish or eliminate the constitutional or civil rights of gays and lesbians.” He believes the proposition is “about restoring and maintaining the traditional definition of marriage.” He continued about judges, stating that ”judges – as servants of the people – to bow to the will of those whom they serve.” Judges must serve the people, but the people have elected these judges to do the work of interpreting the Constitution. This is their job and this is how they serve the people. If judges always bowed to the will of the people, the state would simply be ruled by the power of the majority.

COMEDY BREAK! Here is a great video for comedic relief. It isn’t Prop 8 related, but I imagine Kenneth Starr to be involved in something such as this:

Starr stated that the job of the judges is to interpret the law, and no rule exists to require judges “to protect minority rights or ensure equality apart from the law.” If the judges use the equal protection clause of the Constitution and define marriage as a fundamental right granted by the Constitution, this appears to be interpretation. As a result of this interpretation, the rights of a minority group are protected and treated equally. It seems as though the highest law of the state favors equality and protection of minority groups as a fundamental building block of the document itself. If judges properly interpret this, by default, there job becomes protecting minority rights and equality. Kenneth Starr destroyed Washington, and he is now in California in an attempt to do the same.

In the latest Prop 8 twist, Yes on Prop 8’s filed arguments ask the courts to invalidate the 18,000 marriages between same sex couples administered over the summer. Originally, the proponents of the proposition said they would leave those marriages alone, but in their latest move, argued to the Court that Prop 8 invalidates all same sex marriages despite the time or place in which they occurred.

Both Brown and Starr agree that Prop 8 does not qualify as a revision to the Constitution, an argument opponents of Prop 8 are making to the courts. Brown’s argument does support the filing by opponents of Prop 8, in that he states that marriage is a fundamental right protected by the Constitution. By his arguing that marriage is a fundamental right that Prop 8 cannot strip away, those arguing that Prop 8 is a revision because it works to change the fundamental rights of Californians may be strengthened.

The California Supreme Court is expected to hear the case in March and will rule within ninety days.

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Justice and equality have finally been served by the courts of California’s Supreme Court. In a long overdue decision, the California Supreme Court decided on May 15th, 2008 that banning homosexuals from marriage was unconstitutional (in regards to the California state constitution). Prop 22 has effectively been overturned. Chief Justice George wrote:

In contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights.

As a gay individual and a Californian, this ruling was particularly impactful in ways that I find hard to describe. I have always known that this direction of equality was the right direction and yet constantly I listened that laws were being passed against it. Growing up with American ideals of justice and equality become dim when one knows that their own equality has been trampled upon by the federal government, state government and fellows citizens. Learning about the struggle of African Americans and women to earn equal standing, it only made sense that something like gay marriage fits into the same ideals of equality.

Year after year the opposite continually happened. State after state passing anti gay marriage laws. The federal government passing anti gay marriage legislation. All of these pieces never made sense when I was continually taught about the rights innately guaranteed to American citizens by the Constitution. I consider the U.S. Constitution one of the most innovative and powerful documents ever written. Its amendments continually instilled ideals of equality for all citizens, protecting these equal rights. Day in and day out, the struggle for gay equality in marriage has fought for this.

Yes, this is a state victory, which shows that nationally a bigger objective still needs to be conquered, but the power of a California court decision goes far. Knowing that my state’s Supreme Court has finally acknowledged the equality of a minority, that I am a part of, becomes very powerful on a personal level. It feels like there is finally a group of people of stature who understand something that I have understood for longer than I can remember; American citizens are born equal and have innate rights to life, liberty and the pursuit of happiness.

Stepping into the Castro district of San Francisco tonight, I found streets shut down and a celebratory party conducted on the city streets to celebrate a victory for California, a victory for gays, and ultimately a victory for the country. We are a country that has always put ideals of freedom and liberty on the forefront of American life and this is a step needed to display that there are Americans who continue to believe in these vital elements of the United States.

Watching a large gathering of citizens celebrate this victory in the streets of Castro was simply amazing. Those in long lasting relationships can finally receive the same recognition and benefits as their heterosexual counterparts. Single or not, everyone on the street was able to feel that they really are an equal part of society and not only deserve, but will be treated by the government on an equal level.

Feeling equal is a very difficult feeling to describe. Feeling the relief that the Court recognizes my individual rights to equality is hard to describe. However, celebrating this victory is easy to describe; simply amazing!

The battle continues through to November as select Californians, rather select Americans, work to embed discrimination in the California state constitution. There is no place for discrimination in this state or in this country, particularly in the written Constitution. This nation has thrived on being at the forefront of liberty and justice and to continue this ideal, every citizen must be treated equally under the law.

(Photos provided by The Ryan Thomas Collection. All rights reserved.)

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I have had a little back and forth with another blogger on another blog about utilizing the 14th amendment of the U.S. Constitution to fight anti-gay marriage laws. I want to open the discussion on my blog to broaden its scope because it is obviously not a clear cut issue. We both support equality of marriage among hetero and homosexuals, so the discussion is not whether or not gay marriage should or should not be legal. It is more about using the tools available to fight it in the courts, where the battle belongs, in my opinion.

The discussion is below (courtesy www.thedailydalia.wordpress.com) and lets open it further:

Me:

After reading this posting, I wanted to read a bit more about the Loving v. Virginia case because to me it sounds like the key to overturning discriminatory gay marriage laws using precedent set by this case. It seems that in good time, this case may be the one to give equal rights to all. Virginia commented on the anniversary of the court case:

“Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry.

I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.”

Justin: The reason why loving v Virginia cannot be used for gay marriage is because it was fought using the arguments of due process and equal protections under the 14th Amendment and the 14th does not cover sexual orientation.

Me:

The 14th amendment does not actually specify what it can and cant be used for or against. The Equal Protection Clause of this amendment is left open and has been used in various civil rights fights.

It states:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The language is flexible enough that one can argue that the 14th amendment does in fact nullify anti-gay marriage laws because these laws could be construed as depriving a group of people in committed relationships of equal protection under the law.

The marital communications privelege is one protection marriage law provides (though many states include this protection in civil union). This privelege allows communications between a married couple to be kept confidential by both members. Therefore, my communication with my partner does not necessarily receive the same protection as my heterosexual and married counterparts.

The idea that civil unions or domestic partnership laws may include this right does not nullify the idea that the 14th amendment applies. It only brings further argument that separate, but equal is never equal. Brown v Board successfully removed separate, but equal as a solution to segregation. A main argument of this case was the 14th amendment.

Therefore, I still believe the 14th amendment to be applicable in fighting marriage discrimation laws.

(Photo provided by The Ryan Thomas Collection. All rights reserved.)

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