Dear Friend and Reader,
After spending most of the day taking furious notes and listening to attorneys hash out the biggest civil rights issue of my generation — the rights of GLBT citizens of this country — I want to reflect, but am just too wrecked to process it all right now. So instead, I’ll provide a rundown of what transpired today, to the best of my ability, and will save the analysis for another day.
There were five people who presented their positions in court today: Shannon Minter, the head attorney in favor of marriage equality; Ray Marshall, a friend of the court, former state bar president and representation for many civil rights groups (NAACP, Asian Pacific American Legal Center, et al.); Mike Morocco, representing a private couple; Terry Stewart, representing the city and county of San Francisco; Chris Kreuger, representing Attorney General Jerry Brown; and Ken Starr, representing supporters of Proposition 8.
While I presumed that today’s primary argument would be regarding amendment and revision: whether Proposition 8 was serious enough that it should have gone through the courts, there was much more discussion around what the spirit of California’s constitution is really about, what direction previous state supreme court justices leaned towards in their decisions about constitutional changes, and whether that direction should be followed.
As Jenny Pizer of Lambda Legal Defense and Education Fund described during today’s teleconference:
The SupremeВ Court’s decision will tell us something about the initiative process that we did not know before…We’re plowing some fresh fields…[questioning] the basic constitutional principles: what is the constitution for, what does balanced government mean? [Today’s arguments were] creative and persuasive because it’s a new area.
It was not about probing details today…more trying to probe what was intended when theВ initiativeВ power was given to voters in 1911 and how we should understand what it means today…what should we do today [and should we change it.]
Though both Ms. Pizer and Jon Davidson, the second host of Lambda’s teleconference, agreed that it is near impossible to determine the outcome of a case based on the hearing and particularly on the questions the justices asked, it does seem that the justices had come to a consensus on retroactivity. This means that same-sex couples who were married before Nov. 4 will be able to stay married.
Ken Starr was given an extremely hard time when he argued that the 18,000 couples that married before Proposition 8 passed should have their marriages revoked.В His argument hinged on proving that the wording of Prop 8 clearly and obviously indicated that it wouldВ take awayВ marriages that were already legally recognized in the state of California. He was unable to prove this satisfactorily, and JusticeВ Carol A. Corrigan suggested that the ambiguous wording was meant to trick citizens into voting for the proposition without realizing its full legal breadth. This is when things got nasty.
Mr. Starr argued that “There was a swirl of uncertainty” following the May 15, 2008 decision to legalize gay marriage in California, so married same-sex couples shouldn’t have been surprised that their rights were taken away, nor should they have believed that their marriages were valid at the time.
To which Justice Corrigan retorted, “If Californians can’t rely on what the court says the Constitution is, then who can they listen to?”
Neither Minter nor Marshall were asked about retroactivity, suggesting further that married same-sex couples will be able to keep their licenses.
As far as theВ futureВ of marriage equality in California goes, it is difficult to say at this point. The Court has until June 3 to make its decision, but Jenny Pizer stated that is couldВ be sooner because the “entire case has been in quite an expedited schedule.” Ross von Metzke forВ The AdvocateВ reportedВ “the supreme court has already gone to work on a draft of its decision. Oral arguments will likely result in changes to the draft, but chances are slim that they will actually affect the outcome.”
If the court does end up voting to maintain Proposition 8, it will be a “massive disappointment and bad for all Californians, and the country,” explains Jenny Pizer. “Regardless, we have to fight for justice for all Californians. We clearly have more work ahead and that work needs to start now. [We need to be] reaching out with dialog to open minds and open hearts.
The next step [will be] to return to the ballot box, to try to persuade the population to restore equality under the Constitution. People need to be telling their stories, humanizing our families, and really trying to change minds.
Even if we win there’s an ongoing struggle for federal rights…and the battle goes on in states where same-sex couples are still unable to marry.”
That’s all for now — back to work on the Friday edition of Planet Waves Astrology News, where Eric dives into the topic of Prop 8 from an astrological andВ philosophicalВ perspective, Judith Gayle weighs in on how we’re dealing with change and, of course, we have the weekly horoscope.
Adieu, for now,
Rachel Asher
You go girl. Keep up the good work. As goes California. . . .