Pride and Precedent

The Fight For Marriage Equality in 2008-2009

This year, the country has witnessed revolutionary changes to the status of same-sex marriage. Iowa, Vermont and Maine all legalized same-sex marriage, with the latter two being the first to make marriage equality a reality by legislative measures instead of court decisions.

On June 3, New Hampshire Governor John Lynch signed an equal marriage bill after it passed in both the state House and Senate, leaving Rhode Island as the only state left in New England that has not extended marriage equality to same-sex couples.

On the forefront of the struggle is California’s year-long tug of war from illegal to legal and back. On May 26 the state Supreme Court voted 6-1 to uphold Proposition 8 and once again ban gay marriage. However, the court also ruled unanimously that marriages performed between mid-June and November 2008 would remain valid.

Justice Carlos Moreno, the one dissenting voter, wrote of his decision, “Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights,” adding that the ruling sets a precedent for all minorities who try to make their case for equal protection under the law.

Gloria Allred, the lawyer who won the court case legalizing gay marriage in California in 2008, thinks this precedent is very dangerous. “The equal protection clause was added to the California constitution to protect minorities against the tyranny of the majority.  The majority will always protect its rights. The question is, will the minority be protected from the majority overreaching and undermining their rights? Now we know there is no protection for minorities,” Allred told the Advocate.

Soon after the latest ruling, high-profile conservative lawyers Theodore B. Olson and David Boies, filed a federal lawsuit challenging Prop 8 as a violation of the U.S Constitution on behalf of two same-sex couples in California. They hope to move the case to the federal Supreme Court, according to the Associated Press.

A coalition of gay and civil rights groups including the American Civil Liberties Union and Lambda Legal issued a statement opposing the lawsuit, saying they don’t believe the issue is ready to move to the Supreme Court.

Currently, same-sex marriage is legal in five states and out-of-state marriages are recognized in New York, Rhode Island, New Mexico and Washington, D.C. Legislation to legalize same-sex marriage is now on the floor of state legislature in Rhode Island. In New York, legislation passed the state assembly in May, with Governor David Paterson endorsing the cause.

Meanwhile celebrities, politicians and notables gay and straight alike are voicing their stance in favor of marriage equality. Singer Rob Thomas, actor Alec Baldwin and media mogul Russell Simmons all weighed in on the issue in blogs on after the Prop 8 ruling. “I don’t know what to say to people to convince them that the issue of individual rights alone is enough to grant gay couples the right to marry,” wrote Baldwin.

A May 28 New York Times article reported that famed poet and author Maya Angelou, who owns a home in Harlem, called three New York state senators to urge them to
support legalizing gay marriage in the state. “I would ask every man and every woman who’s had the blessing of having children, ‘Would you deny your son or your daughter the ecstasy of finding some-one to love?’” Angelou told the Times.

In a powerful statement from religious leaders in California, two pastors have voiced their opposition to Prop 8 by refusing to perform marriages of any kind. Reverend Art Cribbs of San Marino Congregation Church and Reverend Anne Cohen of the First Congregational Church in Glendale have stopped marrying couples in their churches until the ban on same-sex marriage is lifted. Senator Barbara Boxer (D-Ca) called the Prop 8 court ruling a “nightmare” in an interview with Rachel Maddow, saying, “I believe we’re going to have to go back to the ballot and say to the people of California, listen, you can’t have separate rules…separate but equal is not right.”

The court rulings in favor of same-sex marriage were based on clauses in state constitutions that guarantee citizens equal protection under the law. The U.S. Constitution also has such a clause included in the Fourteenth Amendment. The Obama administration has been noncommittal on the issue, despite the President’s campaign promise to champion LGBT issues while still maintaining that he himself supports civil unions for same-sex couples as opposed to marriage.

In a May 26 interview, ABC’s Jake Tapper asked White House press secretary Robert Gibbs whether Obama’s position is a violation of the equal protection clause in the U.S. Constitution, Gibbs gave an evasive answer, saying that he would have to look further into the matter of the specific court case brought by Olsen and Boies. The President made no comment on the Prop 8 ruling at a DNC fundraiser the day after the court’s decision.

On state and federal levels, proponents of marriage equality are far from giving up, and look forward to days of triumph for same-sex couples looking to tie the knot. “There’s a certain dignity, a certain respect, a certain stature that’s afforded to the [marriage] relationship that’s not afforded to domestic partnerships,” said Allred. “I know I will never, ever stop fighting and doing whatever I can to make sure everyone has that right to marry. And I’m very proud of the community that they’re rallying together and that they’re never going to stop either. Because they are right and they are going to win.”

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