For All My Friends that Are as Sad as I am About Prop 8 ...
A lawyer friend of mine posted this on tribe. (Major props go to Bryan on this article).
Long, but well written and well informed. Take the time to read it, if there is anything being a community organizer has taught me, it's that our work is never done. For the first time in a while, that means something other than a long day to me :-)
In Solidarity,
Shnickie
So it looks like proposition 8 will pass. That’s bad news, of course, because it will eliminate the right to same-sex marriage in California. Our gay friends and co-workers deserve to have this same right that others take for granted. But believe it or not, there are actually lots of reasons why all of us should take heart in the results and the current situation. And there are even more reasons why, in time, equality and fairness will win.
* * *
The Brighter Side
First, and most importantly, CA same-sex domestic partnerships are still valid and recognized by the state. Maybe it’s obvious, but Proposition 8 didn’t touch them. A California domestic partner still has virtually every single right that a married person has. The only substantial difference at this point is in the name: “domestic partnership” versus “marriage.” At this point, if we’re only arguing over semantics, then we have come a long, long way. More on this later.
Moreover, national trends indicate that acceptance of same-sex domestic partnerships (called “civil unions” in some states) is growing. In 2006, Arizona became the first state to ever reject an anti-domestic partnership ballot measure; it failed, and gay-rights opponents were forced to retreat. Now, a 2008 ballot initiative has banned gay marriage in that state. The two initiatives had a crucial difference: the 2006 initiative tried to ban “marriage or the equivalent,” whereas the 2008 initiative only banned “marriage” between same-sex couples, without the “or the equivalent” language. This may seem like a tiny difference, but in the careful analysis of lawyers and courts, it has a significant impact. The change actually means that anti-gay forces in Arizona have retreated, and the state has implicitly authorized same-sex domestic partnerships.
Similar arguments have been made in other states: in California, the “Yes on 8” campaign even emphasized that same-sex couples’ domestic partnerships would still have the same rights as married couples if prop 8 were to pass (which is mostly true). Although a few states, such as Florida, are still bringing ballot measures that would ban “marriage or the equivalent” for same-sex couples, that’s really only happening in reddish states that didn’t already do it in 2004 or 2006. Nationwide, the trend is still toward recognition of domestic partnerships in more progressive states, and there’s no sign that that will be reversed. (See is.gd/6pPS for a pre-election list of states.)
It’s also really significant that the vote was this close. In California, an initiative to ban all same-sex unions passed in 2000 with 61% of the vote; this time, they only got 52% against *marriages* specifically (not domestic partnerships). I am sure that California will do even better once we really mobilize people, run a strong campaign, and keep hammering on our simple message. I know in my heart that a clear majority of Californians support equal rights, and I know that we can get there on election day.
Many people have asked whether prop 8 can be overturned by a court appeal. Yes, it could, but procedural attacks within the state look unlikely, and an Equal Protection Clause attack would probably require more votes on the U.S. Supreme Court than we’ve currently got. For many reasons, I'm afraid that a legal challenge looks like a longshot. I read today that anti-prop 8 forces will appeal, and I wish them luck, but I’m doubtful. We will probably have to ultimately overturn prop 8 with a new initiative.
We can also take pride in knowing that acceptance of gays and lesbians continues to grow. The community is continually working to stomp out hate crimes and discrimination, and to have more visibility. Will & Grace, Queer Eye, Doogie Howser, blah blah blah. :) I know, I know, acceptance doesn’t make up for the indignities that gay men and lesbians still must suffer under the law from time to time; but acceptance is part of the road toward equality. Even the "Yes on 8" campaign was careful to emphasize that they're not anti-gay. (Yeah. Of course.)
Finally, we have demographics. Younger people are far more willing than older people to support equal rights for gays and lesbians, so time is on our side. It’s not a question of whether GLBT people will have the same rights as everyone else; it’s a question of when.
* * *
What’s in a Name? Or: Separate But Equal
For our gay friends and co-workers who choose to be in committed, loving relationships, the ability to have domestic partnerships is crucially important. Domestic partnerships get benefits that include default inheritance, hospital visitation, medical decisions, and numerous rights relating to medical decisions, employment law, and other areas. (There are a few very minor areas in which it’s still not equivalent to marriage, even in CA.)
However, an arrangement called a “domestic partnership” still doesn’t have the same name as a “marriage.” But does the name matter? What’s in a name? If gay couples get everything that straight couples get, then is it significant what they’re called? For a long time, I had turned that question over in my mind.
The New Jersey Supreme Court actually took up this very issue recently. That court ruled that the New Jersey state constitution required that the state merely recognize some sort of union between same-sex partners that had all of the same rights as heterosexual couples' marriages. However, it added a crucial detail: it said that the *name* of that union wasn’t particularly important. Call it marriage, call it a civil union, call it domestic partnership, call it whatever; the name doesn’t impact a person’s fundamental rights, the court said, so it’s a matter for the people and/or the New Jersey legislature to decide for themselves.
At first glance, that reasoning seems to make sense. It’s difficult to argue that a gay couple in a “civil union,” which gets all (or as in CA, virtually all) of the same benefits as a “married” hetero couple, is somehow having their fundamental rights infringed upon just because their union has a different name.
However, permanently creating a group of people who are referred to as ‘something else’ doesn’t seem to make a lot of sense either, unless there’s some overwhelmingly compelling reason for it. All the old arguments in defense of hetero-only marriage (“the purpose of marriage is making babies” or “gay relationships aren’t stable” or “it’s not what nature intended” or “gay sex, ewww!”) fall short when we recognize that gay people are decent members of our society who just want to be happy like everyone else. If the love and the happiness and the commitment that a gay couple has is the same as the love and the happiness and the commitment of a straight couple, then it’s suspicious to label their marriage as something else.
I’ve heard analogies to the civil rights movement regarding this. Domestic partnerships may be the equivalent of marriage, or almost the equivalent, the argument goes, but it’s still not the same. It’s still second-class treatment. If Rosa Parks had sat in the back of that bus in Montgomery, she still would have arrived at the same destination as those sitting in the front. By analogy, the name of “domestic partners” is separate and different from “marriage,” the privileged label for the straight majority, even though they may be functionally the same. We can look at it through the same fundamental lens of fairness that the U.S. Supreme Court used a half-century ago when it struck down school segregation in Brown vs. Board of Education: when an enforced separation has the sanction of law, it is usually interpreted as denoting the inferiority of the minority group. This implication permeates every element of a society that has separate marriage-like institutions, and is inherently unequal. “Separate but equal” cannot stand when it comes to the fundamental right to be married and have the marriage recognized by society and the state. Gay people should be able to have their marriage called a "marriage."
* * *
We Will Win
The passage of Proposition 8 stings for a lot of us. It should. All summer, it seemed to be way behind, and now this is a surprise. Let that sink in for a moment: could you have done more to help? Could you have donated to the campaign, or passed out flyers, or worked the phones? Could you have talked to just one or two of your co-workers and neighbors and friends about this issue? I sure could have done more, and I regret that I didn’t. I was out flyering and waving signs for frigging *ten hours* yesterday, but I still wish I’d done more. I could have emailed my friends and acquaintances to relate my gay and lesbian friends' personal stories. I wish I’d called people. I wish I'd donated more time and money to the campaign. I’m sure we all do.
So let’s start the campaign over again on a personal level. Let’s work hard on bringing civil unions to enlightened states in the rest of the country. Let’s emphasize that we aren’t trying to teach kids to be gay (a claim that I’m surprised we haven’t more forcefully refuted) and that people don’t choose to be gay. Let’s keep demonstrating, by our actions as well as our words, that gay people and gay couples are a part of a decent, stable, happy society. We’ll run better campaigns, we’ll reach out to our friends and neighbors and co-workers, and we’ll give conservatives nothing to fear.
In most states, we will have to fight hard just to merely get domestic partnership rights and similar protections. We won’t be able to demand full marriage rights at first. But once we’ve convinced enough people that gay marriage isn’t any kind of threat at all to traditional institutions, we can take the one final step of changing the name.
But in California, however, we should work for nothing less than full marriage equality right now. Here, in this state, we should all be a little embarrassed that they won. That’s why a lot of people are rightfully surprised and pissed off. I’m now hearing today, one day after the election, about a legal challenge to prop 8. There are anti-prop 8 demonstrations scheduled for this weekend, and I wish them well. I’m even hearing whispers about an even better campaign in 2010 or 2012. The battle is far from over, and let me tell you, demographics are on our side. We will win this, as we must.
So let’s start the campaign now, and let’s not quit until our gay friends, family members, neighbors, and co-workers in California can have the same fundamental right to get married as everyone else.
Long, but well written and well informed. Take the time to read it, if there is anything being a community organizer has taught me, it's that our work is never done. For the first time in a while, that means something other than a long day to me :-)
In Solidarity,
Shnickie
So it looks like proposition 8 will pass. That’s bad news, of course, because it will eliminate the right to same-sex marriage in California. Our gay friends and co-workers deserve to have this same right that others take for granted. But believe it or not, there are actually lots of reasons why all of us should take heart in the results and the current situation. And there are even more reasons why, in time, equality and fairness will win.
* * *
The Brighter Side
First, and most importantly, CA same-sex domestic partnerships are still valid and recognized by the state. Maybe it’s obvious, but Proposition 8 didn’t touch them. A California domestic partner still has virtually every single right that a married person has. The only substantial difference at this point is in the name: “domestic partnership” versus “marriage.” At this point, if we’re only arguing over semantics, then we have come a long, long way. More on this later.
Moreover, national trends indicate that acceptance of same-sex domestic partnerships (called “civil unions” in some states) is growing. In 2006, Arizona became the first state to ever reject an anti-domestic partnership ballot measure; it failed, and gay-rights opponents were forced to retreat. Now, a 2008 ballot initiative has banned gay marriage in that state. The two initiatives had a crucial difference: the 2006 initiative tried to ban “marriage or the equivalent,” whereas the 2008 initiative only banned “marriage” between same-sex couples, without the “or the equivalent” language. This may seem like a tiny difference, but in the careful analysis of lawyers and courts, it has a significant impact. The change actually means that anti-gay forces in Arizona have retreated, and the state has implicitly authorized same-sex domestic partnerships.
Similar arguments have been made in other states: in California, the “Yes on 8” campaign even emphasized that same-sex couples’ domestic partnerships would still have the same rights as married couples if prop 8 were to pass (which is mostly true). Although a few states, such as Florida, are still bringing ballot measures that would ban “marriage or the equivalent” for same-sex couples, that’s really only happening in reddish states that didn’t already do it in 2004 or 2006. Nationwide, the trend is still toward recognition of domestic partnerships in more progressive states, and there’s no sign that that will be reversed. (See is.gd/6pPS for a pre-election list of states.)
It’s also really significant that the vote was this close. In California, an initiative to ban all same-sex unions passed in 2000 with 61% of the vote; this time, they only got 52% against *marriages* specifically (not domestic partnerships). I am sure that California will do even better once we really mobilize people, run a strong campaign, and keep hammering on our simple message. I know in my heart that a clear majority of Californians support equal rights, and I know that we can get there on election day.
Many people have asked whether prop 8 can be overturned by a court appeal. Yes, it could, but procedural attacks within the state look unlikely, and an Equal Protection Clause attack would probably require more votes on the U.S. Supreme Court than we’ve currently got. For many reasons, I'm afraid that a legal challenge looks like a longshot. I read today that anti-prop 8 forces will appeal, and I wish them luck, but I’m doubtful. We will probably have to ultimately overturn prop 8 with a new initiative.
We can also take pride in knowing that acceptance of gays and lesbians continues to grow. The community is continually working to stomp out hate crimes and discrimination, and to have more visibility. Will & Grace, Queer Eye, Doogie Howser, blah blah blah. :) I know, I know, acceptance doesn’t make up for the indignities that gay men and lesbians still must suffer under the law from time to time; but acceptance is part of the road toward equality. Even the "Yes on 8" campaign was careful to emphasize that they're not anti-gay. (Yeah. Of course.)
Finally, we have demographics. Younger people are far more willing than older people to support equal rights for gays and lesbians, so time is on our side. It’s not a question of whether GLBT people will have the same rights as everyone else; it’s a question of when.
* * *
What’s in a Name? Or: Separate But Equal
For our gay friends and co-workers who choose to be in committed, loving relationships, the ability to have domestic partnerships is crucially important. Domestic partnerships get benefits that include default inheritance, hospital visitation, medical decisions, and numerous rights relating to medical decisions, employment law, and other areas. (There are a few very minor areas in which it’s still not equivalent to marriage, even in CA.)
However, an arrangement called a “domestic partnership” still doesn’t have the same name as a “marriage.” But does the name matter? What’s in a name? If gay couples get everything that straight couples get, then is it significant what they’re called? For a long time, I had turned that question over in my mind.
The New Jersey Supreme Court actually took up this very issue recently. That court ruled that the New Jersey state constitution required that the state merely recognize some sort of union between same-sex partners that had all of the same rights as heterosexual couples' marriages. However, it added a crucial detail: it said that the *name* of that union wasn’t particularly important. Call it marriage, call it a civil union, call it domestic partnership, call it whatever; the name doesn’t impact a person’s fundamental rights, the court said, so it’s a matter for the people and/or the New Jersey legislature to decide for themselves.
At first glance, that reasoning seems to make sense. It’s difficult to argue that a gay couple in a “civil union,” which gets all (or as in CA, virtually all) of the same benefits as a “married” hetero couple, is somehow having their fundamental rights infringed upon just because their union has a different name.
However, permanently creating a group of people who are referred to as ‘something else’ doesn’t seem to make a lot of sense either, unless there’s some overwhelmingly compelling reason for it. All the old arguments in defense of hetero-only marriage (“the purpose of marriage is making babies” or “gay relationships aren’t stable” or “it’s not what nature intended” or “gay sex, ewww!”) fall short when we recognize that gay people are decent members of our society who just want to be happy like everyone else. If the love and the happiness and the commitment that a gay couple has is the same as the love and the happiness and the commitment of a straight couple, then it’s suspicious to label their marriage as something else.
I’ve heard analogies to the civil rights movement regarding this. Domestic partnerships may be the equivalent of marriage, or almost the equivalent, the argument goes, but it’s still not the same. It’s still second-class treatment. If Rosa Parks had sat in the back of that bus in Montgomery, she still would have arrived at the same destination as those sitting in the front. By analogy, the name of “domestic partners” is separate and different from “marriage,” the privileged label for the straight majority, even though they may be functionally the same. We can look at it through the same fundamental lens of fairness that the U.S. Supreme Court used a half-century ago when it struck down school segregation in Brown vs. Board of Education: when an enforced separation has the sanction of law, it is usually interpreted as denoting the inferiority of the minority group. This implication permeates every element of a society that has separate marriage-like institutions, and is inherently unequal. “Separate but equal” cannot stand when it comes to the fundamental right to be married and have the marriage recognized by society and the state. Gay people should be able to have their marriage called a "marriage."
* * *
We Will Win
The passage of Proposition 8 stings for a lot of us. It should. All summer, it seemed to be way behind, and now this is a surprise. Let that sink in for a moment: could you have done more to help? Could you have donated to the campaign, or passed out flyers, or worked the phones? Could you have talked to just one or two of your co-workers and neighbors and friends about this issue? I sure could have done more, and I regret that I didn’t. I was out flyering and waving signs for frigging *ten hours* yesterday, but I still wish I’d done more. I could have emailed my friends and acquaintances to relate my gay and lesbian friends' personal stories. I wish I’d called people. I wish I'd donated more time and money to the campaign. I’m sure we all do.
So let’s start the campaign over again on a personal level. Let’s work hard on bringing civil unions to enlightened states in the rest of the country. Let’s emphasize that we aren’t trying to teach kids to be gay (a claim that I’m surprised we haven’t more forcefully refuted) and that people don’t choose to be gay. Let’s keep demonstrating, by our actions as well as our words, that gay people and gay couples are a part of a decent, stable, happy society. We’ll run better campaigns, we’ll reach out to our friends and neighbors and co-workers, and we’ll give conservatives nothing to fear.
In most states, we will have to fight hard just to merely get domestic partnership rights and similar protections. We won’t be able to demand full marriage rights at first. But once we’ve convinced enough people that gay marriage isn’t any kind of threat at all to traditional institutions, we can take the one final step of changing the name.
But in California, however, we should work for nothing less than full marriage equality right now. Here, in this state, we should all be a little embarrassed that they won. That’s why a lot of people are rightfully surprised and pissed off. I’m now hearing today, one day after the election, about a legal challenge to prop 8. There are anti-prop 8 demonstrations scheduled for this weekend, and I wish them well. I’m even hearing whispers about an even better campaign in 2010 or 2012. The battle is far from over, and let me tell you, demographics are on our side. We will win this, as we must.
So let’s start the campaign now, and let’s not quit until our gay friends, family members, neighbors, and co-workers in California can have the same fundamental right to get married as everyone else.