Prop 8: It Ain’t Over

The absentee votes for California’s Proposition 8, as we mentioned earlier, still have to be counted, so as far as I am concerned, the battle is still raging. 

Pop + Politics blog offers an interesting take in its commentary on yesterday’s balloting, calling President-Elect Obama’s landmark win “bittersweet”:

Californians (as well as Floridians and Arizon…ians?) elated with the symbolic progress their country made last night by electing the first African-American president had a short honeymoon when they awoke to discover Proposition 8, which writes a ban on gay marriage into the state constitution, passed by a narrow margin. The nation appears to have moved beyond the racism that suppressed Black America just 50 short years ago, but has replaced it with a church-sanctioned form of bigotry. Between the vast financial support of the Mormon Church (you know, the people exiled to their own state because of intolerance) and the supposed “Obama Effect” of socially conservative minority voters showing up in droves for Barack and voting for Prop 8, I think we can all agree that gay is the new black in this country.

Gay is the new black? I thought Tina Fey said bitch was the new black. Whatever… the evil that is discrimination and bigotry touches many of us, and all of it is a disgrace.

Back to Prop 8: There still may be hope! A coalition of justice groups are taking this outrage — the unprecedented stripping away of legal rights — to court.  

The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a writ petition before the California Supreme Court today urging the court to invalidate Proposition 8 if it passes. The petition charges that Proposition 8 is invalid because the initiative process was improperly used in an attempt to undo the constitution’s core commitment to equality for everyone by eliminating a fundamental right from just one group – lesbian and gay Californians. Proposition 8 also improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities. According to the California Constitution, such radical changes to the organizing principles of state government cannot be made by simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first.

The California Constitution itself sets out two ways to alter the document that sets the most basic rules about how state government works.  Through the initiative process, voters can make relatively small changes to the constitution.  But any measure that would change the underlying principles of the constitution must first be approved by the legislature before being submitted to the voters.  That didn’t happen with Proposition 8, and that’s why it’s invalid.

“If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw – it removes a protected constitutional right – here, the right to marry – not from all Californians, but just from one group of us,” said Jenny Pizer, Senior Counsel with Lambda Legal. “That’s too big a change in the principles of our constitution to be made just by a bare majority of voters.” 

“A major purpose of the constitution is to protect minorities from majorities. Because changing that principle is a fundamental change to the organizing principles of the constitution itself, only the legislature can initiate such revisions to the constitution,” added Elizabeth Gill, a staff attorney with the ACLU of Northern California.

The lawsuit was filed today in the California Supreme Court on behalf of Equality California and 6 same-sex couples who did not marry before Tuesday’s election but would like to be able to marry now.

California bigots should hear this: The game isn’t over yet, not by a long shot. Hopefully the state’s Supreme Court, once again, will do what is right and protect equality for all. It is bad — hideous and wrong — to deny equality in the first place, but once rights are acknowledged, you can’t just go around taking them away from people. That would be un-American.

By the way, those who were married legally in California prior to the election probably will not be penalized. From Lambda Legal:

The California Attorney General, Equality California, and the nation’s leading LGBT legal groups agree that the marriages of the estimated 18,000 same-sex couples who married between June 16, 2008 and the possible passage of Proposition 8 are still valid in the state of California and must continue to be honored by the state.

…Although it is extremely unlikely that California courts would apply the initiative retroactively, the proponents of Proposition 8 may file a legal challenge trying to invalidate the marriages of those who married before Proposition 8 possibly passed. The LGBT legal groups remain committed to ensuring that all the couples who married in California continue to receive the legal protections and to have their marriages respected as required under California law and will vigorously fight any attempts to take rights away from couples and families.

I choose to remain hopeful, but my boycott of California stays on until this nastiness is settled and bigotry loses.

3 responses to “Prop 8: It Ain’t Over

  1. Same-sex marriage is not just about equal rights or lifestyle or shared love or a positive example. It is about sneaking into your brother’s room at night and taking back the baseball mitt he he stole from you the day before. It’s taking back what’s mine. My word. My marriage. Keep your laws off my language.

    This country has voted for “Change We Can Believe In“, but is not yet ready to change what we believe. We are a careful and comfortable people, in words and deed. We like to think we are livingfree, but we are not yet thinkingfree.

  2. You believe in the Supreme Court, ostensibly. Decades ago, it ruled that separate but equal is not equal. This country ostensibly believes in equality for all. If you believe in discriminating, you are wrong, and we will fight until this mendacious country is what it pretends to be. That means equality for all… including in civil marriage. People can discriminate within their churches all they want.

  3. GratefulDread, thank you for this post, and helping the keep the issue alive. The fight sure isn’t over yet. This is an equality vs. bigotry issue, and I wish more folks would realize that.

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