The road to today’s decision in the Perry vs. Schwarzenegger lawsuit — federally challenging Proposition 8 — has been long. And no doubt, the path after the decision is released will be longer. But let us pause this morning and reflect how it all came to be…
In May 2008, the California Supreme Court ruled that no law could discriminate against sexual orientation — including marriage. The case was brought to the court after San Francisco Mayor Gavin Newsom allowed his city clerk to authorize same-sex marriage license. The broad decision by the quasi-conservative court opened the door for same-sex marriage. But as the Los Angels Times reported there was already a campaign underway for an amendment to the constitution of California to define marriage between one man and one woman.
The majority opinion, by Chief Justice Ronald M. George, declared that any law that discriminates on the basis of sexual orientation will from this point on be constitutionally suspect in California in the same way as laws that discriminate by race or gender, making the state’s high court the first in the nation to adopt such a stringent standard.
…But the scope of the court’s decision could be thrown into question by an initiative already heading toward the November ballot. The initiative would amend the state Constitution to prohibit same-sex unions.
The court, which had earlier put an end to Newsom’s “marriage-spree,” said in its decision that the domestic partnerships the state’s legislature had provided its citizens (after a 2000 amendment also defined marriage between a man and a woman) created a second-class citizenship stigma to gay and lesbians.
After months of campaigning for and against Proposition 8 — a new amendment that would once-again define marriage between one man and one woman — Californians voted for it. The Wall Street Journal reported the “stunning” decision was 52 percent to 47 percent.
Even amid a heated presidential election, the contest over Prop 8 emerged as one of the dominant political issues in the state this year, and was a big driver of voter turnout. Observers believe the losing side will suffer a serious blow in the national debate over gay-marriage rights. The winning side will have the momentum and also be able to claim a popular mandate as judges and voters across the country are poised to weigh the issue in other states.
Within 48 hours of the election, voting data was released that showed the same black and Latino Democrats — typically known as the liberal-friendly party to the GLBT cause — who voted for Barack Obama also voted for Prop 8. The Washington Post had this:
Seven in 10 African Americans who went to the polls voted yes on Proposition 8, the ballot measure overruling a state Supreme Court judgment that legalized same-sex marriage and brought 18,000 gay and lesbian couples to Golden State courthouses in the past six months.
The GLBT community was outraged. And dozen of protests happened around the country: including Denver. On Nov. 15, 2008 about 1,000 protesters flooded the 16th Street Mall to protest the amendment.
Carlos Martinez director of The Center said the rally would create a voice that would be heard throughout Colorado and the nation.
“This will be a day remembered in our history that advanced the community,” he said. “This is an awakening to America: we are not invisible.”
“Let us not dwell in the defeat,” he said.
Protests escalated and became more targeted toward the Mormon Church after it was reported the organization spent $15 million to get Prop 8 passed. More than 3,000 protested outside the temple in Salt Lake City on Nov. 7, 2008.
A lawsuit was filed soon after Prop 8 was passed challenging the amendment. But the California Supreme Court said on May 25, 2009, its hands were tied and ruled the amendment constitutional 6-1. But the court also said the marriages that took place between their original decision and the vote were valid. The San Francisco Examiner also pointed out in the same story the tied seemed to be turning:
Much has changed since then. California and Massachusetts were the only states to permit same-sex marriage before November. Since then, Connecticut, Iowa, Vermont and Maine have legalized it, and politicians in New York, New Jersey and New Hampshire are considering laws of their own.
Theodore B. Olson and David Boies
Then came news that two heterosexual legal eagles from Washington were to file a lawsuit against Prop 8 in a federal court. Gay rights groups were furious, reported The San Fransisco Chronicle.
While they knew of the objections, attorneys Theodore B. Olson and David Boies – who opposed each other during the 2000 Bush v. Gore presidential election case – filed the suit Friday in San Francisco on behalf of two same-sex couples who wanted to be married but were denied because of Prop. 8.
The suit claims the voter-approved measure, which the California Supreme Court affirmed Tuesday, denies same-sex couples the basic liberties and equal protection under the law guaranteed by the 14th Amendment. It asks for a preliminary injunction against Prop. 8 until the case is decided.
(For those of you who don’t know what the 14th Amendment does/says.)
While the injunction was not granted, the team of Olson and Boies got a speedy trial date: Jan. 11, 2010. CBS5 said Kristen Perry, the lead plantif gave testimony first:
“I’ve been in love with a woman for 10 years, and I don’t have access to a word for it. You chose them over everybody else, and you want to feel that it is going to stick and that you are going to have the protection and support and inclusion that comes from letting people know you feel that way.”
…Perry and her partner, Sandra Stier, 47, and a gay couple from Los Angeles, Paul Katami, 37, and Jeffrey Zarrillo, 36, were the first witnesses in a case that could become a landmark that determines if gay Americans have the right to marry. Their testimony, designed to demonstrate that the law passed as Proposition 8 promotes inequality, was expected to provide the human element during proceedings that will rely heavily on evidence from academic experts.
By all accounts, the team of Olson and Boies had a slam dunk. Not only did they prove limiting marriage to one and and one woman was discriminatory with their own witnesses, but during cross examination, they left the defense team’s witnesses tongue-tied. Both defense “star witnesses,” Keith Miller and David Blankenhorn led the world to believe same-sex marriage is a good thing. Queerty in all their snarky commentary had this to say about the two men:
Taking the stand yesterday as Protect Marriage’s first witness, Miller was there as an expert in the political power of California’s gay community. Miller showed he wasn’t exactly qualified to testify on this subject, not only because of how he defined political power — the ability to get the attention of local lawmakers, which, uh, white supremacist groups can do — but because he admitted his own shortcomings, like not knowing about gay leaders, the status of discrimination on a state-by-state level, nor whether black Americans enjoy more political power than gay Americans. (Amusingly, defense counsel Andrew Pugno said Miller “provided ‘striking’ examples of the many ways in which they have won support for their political agenda in California.”)…He also dropped a bomb on one of Protect Marriage’s core arguments: That only heterosexual marriage is healthy enough to raise children. On the stand, Blankenhorn admitted he didn’t know of any scientific studies that said children raised by gay parents were worse off than the children of hetero parents. Moreover, Blankenhorn also dismissed the idea that two adoptive parents (even of the heterosexual variety) were just as good as biological parents. “No sir, that’s not correct,” he told Boies on cross.
Washington lawyer Charles J. Cooper, arguing on behalf of Proposition 8 backers, told Walker that it is “crucial to the public interest” to limit marriage to opposite-sex couples. It is “fundamental to the very existence and survival of the human race” that society promote marriage to ensure that procreative relations are in “enduring, stable unions,” with a goal that children be raised by both parents.
…
Cooper’s counterpart, former U.S. solicitor general Theodore B. Olson, told Walker that the times called for boldness.
Representing two same-sex couples who want to marry, Olson invoked groundbreaking Supreme Court civil rights decisions, such as Brown v. Board of Education, which forbade racial segregation in public schools, and Loving v. Virginia, which threw out that state’s law against interracial marriage.
“Proposition 8 discriminates on the basis of sex the same as Virginia law discriminated on the basis of race,” Olson said.
The decision on Proposition 8 and whether or not it violates the United States Constitution will be released sometime between 2 p.m. and 4 p.m. MST. And then — one way or another — it’s off to the Supreme Court.
I would be very, VERY careful about repeating the theme, as you do above, that African-Americans and Latinos played a critical role in the passage of Prop. 8. It was a divisive, misleading story then and it misrepresents the reality of the election. To begin with, I don’t even recall Latino-Americans even mentioned in much of the finger-pointing that arose shortly after the election. Why has this subgroup entered the recapitulation of the narrative now?
Additionally, As Byron Williams, for example, wrote in The Huffington Post at the time, citing David Binder Research, “if the African American vote split 50-50, Prop 8 would have still passed.” (http://www.huffingtonpost.com/byron-williams/blaming-the-african-ameri_b_143892.html)
Furthermore, additional, follow-up analysis of polling data suggests something very different from the early exit polls following the election. According to the San Francisco Gate, “an analysis of precinct-level voting data on Prop. 8 from Alameda, Los Angeles, Sacramento, San Diego and San Francisco counties, which are home to nearly two-thirds of California’s black voters, suggested that African American support for Prop. 8 was more likely about 58 percent… That support among blacks is still well above the 52 percent Prop. 8 received from all voters in the Nov. 4 election. Much of that can be attributed to the strong religious tradition in the black community, where 57 percent of African American voters attend church at least once a week, compared with 42 percent of Californians overall.” (http://articles.sfgate.com/2009-01-07/bay-area/17199504_1_same-sex-marriage-ban-black-voters-lesbian-task-force)
Finally, I read a very compelling piece on the Mother Jones blog just yesterday detailing the degree to which the support and opposition of MOTHERS shifted dramatically in the weeks leading up to the election. (http://motherjones.com/kevin-drum/2010/08/why-prop-8-passed) According to this article, “Fleischer suggests that the big turning point came when the Yes on 8 campaign started airing the “Princes” ad (“Mommy, mommy, I learned how a prince married a prince and I can marry a princess!”). Shortly after that, as the chart on the right shows, mothers with young children dramatically changed their views, going from 52%-38% opposition to 50%-38% support.” So instead of blaming African-Americans and Latino-Americans, perhaps we ought to blame MOTHERS for the outcome.
Let’s be serious … the simple facts are that the proponents of Prop. 8 ran a crafty, well-organized (albeit revolting and cynical) campaign while our side focused on media buys in urban centers (who would have been likely to vote against Prop. 8 to begin with) while eschewing the kind of grassroots canvassing in swing and “for” districts that might have been more effective in generating a different outcome.
Continuing to perpetuate the myth that other minority groups were somehow to “blame” for the outcome (even doing so inadvertently) only serves to fuel continuing bad feelings and lateral violence within and amongst our communities. Instead, we need to figure out how to work together so that we can support each other and win the future electoral campaigns that are sure to come.