The Overturning of Proposition 8 - One More Step Towards Gay Civil Rights

This morning a three judge panel of the U.S. 9th Circuit Court of Appeals issued a ruling stating that Proposition 8 is unconstitutional. It's a time for celebration for those who support marriage equality in California and across the U.S.

But the ruling doesn't mean that same-sex couples in California will have the right to marry any time soon. The final decision on the constitutionality of Proposition 8 may well fall to the Supreme Court as its supporters continue their appeals, but only if the High Court takes the case.

This decision represents one small step forward in an ongoing struggle for civil rights that gay men and women have been fighting for many years. The ruling makes this clear: “[A]ll parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State...an important right-- the right to obtain and use the designation of 'marriage' to describe their relationships. Nothing more, nothing less.”

As the Court indicated, the state cannot take away the civil rights of a class of people without substantive reasons, and there were no compelling reasons that Proposition 8 supporters could put forward. Proposition 8 didn't take away people's religious freedoms or the right to speak out against gay marriage. Nor did it further the procreation of children, one of the central reasons many put forward in favor of limiting marriage to heterosexual couples.

Instead, as the Court observed: “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”

Like its federal counterpart, The Defense of Marriage Act (DOMA) Proposition 8 does nothing to support the institution of marriage, and it does a great deal to injure same-sex couples and their families. And it is families who are affected by this law. Not just same-sex couples themselves, but their children, grandchildren, parents, sisters and brothers, and all of the other people who support their struggle for civil rights.

The supporters of Proposition 8 and other opponents of same-sex marriage have engaged in any number of scare tactics to make the general public feel that allowing gay men and women to marry would somehow damage marriage as an institution. The infamous National Organization for Marriage (NOM) “Gathering Storm” ad took this approach with results that its backers might not have anticipated: an endless stream of parodies, jokes on late night TV, and laughter that barely cloaked the scorn beneath it. The truth is that there is nothing to be afraid of in extending marriage rights to same-sex couples. Gay marriage has now been legal for seven years in Massachusetts, and there has been no discernible effect at all on married, heterosexual couples and their families. Nor has any credible study demonstrated that same-sex unions harm married, heterosexual couples or society at large.

Some argue that gay couples should be satisfied with the designation of “civil unions,” which can be legally equivalent to marriage. The court also addressed that argument, noting that “domestic partnerships lack the social meaning associated with marriage” and that there is a “significant symbolic disparity” between the two. The right to marry doesn't simply offer gay couples the same legal rights that heterosexual couples enjoy; it also gives them the right to designate their unions with a title that has enormous historical, social, and cultural resonance.

The ruling explains this in eloquent terms:

We emphasize the extraordinary significance of the official designation of 'marriage.' The designation is important because 'marriage' is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committeed lifelong relationship, a marriage by the name of 'registered domestic partnership' does not.

Like Judge Walker, who made the original ruling overturning Prop 8, I may be accused of having a bias on this issue. I witnessed my son's own wedding to his partner this past August in New Mexico, and the two are now legally married in the state of New York, although not in Texas, where they are both students.

But apart from my feelings as parent who is thrilled to see her son in a loving, committed relationship, I also feel that gay marriage is the civil rights issue of our time. Eventually, I believe we will see the legalization of same-sex marriage on a national level, and as in the case of Massachusetts, I can safely predict that a few years later, people will wonder what all the fuss was about. We look back at laws prohibiting interracial marriage, and they seem absurd. A few decades it was headline news to say that a wife could accuse her husband of rape, and that also has given way to a new understanding of women's rights and sexual agency.

But right now, that vision of marriage equality remains just a vision, a hope, and a dream for many same-sex couples whose committed relationships do not even have the status of civil unions. This ruling on Proposition 8 is something to celebrate, but we have a long way to go in pursuit of gay civil rights and an acceptance of gay men and women as equal citizens in our society.

California Courts Overrule the Ban on Gay Marriage

California Courts Overrule the Ban on Gay Marriage – But are Americans Ready to Accept It?

Until yesterday gay marriage seemed to have fallen off the radar screen of hot button political topics, as the public and politicians increasingly looked to “civil unions” as a solution to the problem of offering homosexual men and women a way to legalize their unions without touching the sacred cow of heterosexual marriage.

But now the California Supreme Court has blown that strategy wide open by ruling that the state's ban on gay marriage is unconstitutional and effectively treats “gay individuals and same-sex couples [as] in some respects second-class citizens” (http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF).

In other words, the Court sees “civil unions” as akin to the “separate but equal” schools that segregationist states once offered black citizens; in both cases, the Court deemed these alleged “alternatives” equal only name only.

Suddenly, the idea that a state with 12% of the nation's population and an even larger proportion of its gay citizens could offer those citizens a legal recognition of their same-sex unions is not just a theoretical prospect; it could become a reality in as little as 30 days.

But while gay rights supporters rejoice, they also must face the sobering prospect that this ruling is not a definitive one, and the memories of the short-lived celebrations of gay marriages in San Francisco under Mayor Gavin Newsom in February 2004, could make many people reluctant to celebrate too soon. For conservatives are already gathering signatures for a ballot initiative that would amend the state constitution specifically to exclude same-sex couples from marriage rights.

At the same time, moderates who support civil unions as a first step towards gay marriage, may feel uneasy at this precipitate move by the California Supreme Court, fearing a backlash from social conservatives who not only oppose gay marriage, but also gay civil rights.

In the presidential race, the Democratic front runners, Barack Obama and Hillary Clinton, will have to walk a tight-rope between gay rights advocates, and those who either think civil unions are good enough or those on the socially conservative spectrum of the Democratic party who might bolt to the McCain camp if the candidates get too far ahead of mainstream public opinion on controversial social issues like gay marriage and abortion.

Certainly, gay marriage opponents have been quick to condemn the California Court's ruling in statements rife with words like “shock” and “outrage.” Maggie Gallagher, president of the National Organization for Marriage, told Alex Chadwick of NPR's Day to Day that this ruling made people like her “who think that marriage is the union of husband and wife exactly like bigots who opposed interracial marriage” and argued that they “will be treated like racists in the public square,” (May 16, 2008).

But if social conservatives are expressing anger, they may well find themselves swimming against a tide of public opinion that has turned away from their attitudes towards same-sex marriage in the intervening years since California voters passed a gay marriage ban in 2000.

The Pew Research Center finds that opposition to gay marriage has fallen 12% since February 2004, although it remained just over 50% in March of 2006. At the same time, 54% of Americans approve of a legal alternative to marriage for gay couples, and that support is rising, particularly among the young.

For many young people who go to school with growing numbers of their classmates who “come out” in high school or even middle school, the presence of gays in their everyday lives is increasingly perceived as “normal.” On college campuses, where gay couples are even more more common, fewer students are expressing the idea that their gay colleagues have any negative effect on their lives. One 2004 survey found that among those aged 15 to 25 “support for equal protections for gays, seems to cross partisan, ideological, and religious lines,” (http://www.civicyouth.org/PopUps/FactSheets/Attitudes%202.25.pdf).

Even among the majority of Americans over the age of 25, attitudes towards gays and towards same-sex marriage are also softening as the passage of legislation allowing gay marriage in Massachusetts and civil unions in a number of other states has definitely exploded the conservative canard that gay marriage poses a threat to heterosexual marriage, to young people, or to civil society in general.

Gays are marrying or forming legalized unions in record numbers, and the sky has not fallen. Rather, the public participation of gay couples in our society has made it clear that most of them are not very different at all from their heterosexual counterparts.

In fact, while conservatives like Maggie Gallagher argue that her organization simply wants to defend “marriage” and “religious liberty,” she, and others like her, who oppose gay marriage, never answer the question of how gay marriage injures heterosexual married couples or in any way infringes on their religious freedoms.

Certainly, many Americans do not like the idea of gay marriage, but that is not nearly the same thing as arguing that they are personally injured by its legalization. They are no less “married” in the eyes of the state or according their religious institutions than they were before, and they continue to exercise the same rights and benefits from their marriages as they did before the California Supreme Court ruling.

It may well be that the aftermath of this California court ruling provokes a much smaller and less intense backlash against gay rights than occurred in 2000 when hundreds of gay couples said their vows in San Francisco's city hall.

We may find that with the genie out of the bottle, so to speak, Americans are less fearful of same-sex unions as they live, work, and even worship with men and women who want the same rights as everybody else, the right to live with the person you love and to make that union legal in the eyes of the state and society.

If the California court ruling stands, and the November ballot initiative to write a state constitution ban on same-sex marriage fails, it is likely, as many conservatives fear, that some states will follow suit and that it will be increasingly difficult to maintain consistent legal arguments in favor of a ban on gay marriage. But perhaps, in any case, as more Americans actually see the results of legal gay unions in their communities, the battle over gay marriage may also turn out to be much ado over nothing.

Civil Unions - For All of Us

Civil Unions – For all of Us

The political landscape on giving gay couples the same rights as heterosexual married couples is starting to shift. More Americans and more politicians are lining up behind the idea of “civil unions” as an alternative to “marriage.” This month New Hampshire became the fourth state to legalize civil unions, and other states, like New Mexico, will soon debate the issue in their legislative sessions.

For some gay activists, the idea of a “civil union” seems like a cop-out, offering them second-class citizenship instead of the full rights of married heterosexual couples. Others feel that only this incremental approach will be enough to overcome the nearly fifty percent of the public that remains opposed to any form of union between homosexuals.

I well remember the first time I was married; it was very early on a cold March day on Long Island when my fiance and I showed up at the house of a local justice of the peace. We were greeted by his wife, still wearing her bathrobe and slippers. The only thing missing were the hairnet and curlers. The justice himself chain-smoked through the whole process, and I can't say it was a particularly moving event in my life. It was a civil ceremony, short and to the point, and we did it precisely for all the reasons that gay couples want civil unions: taxes, health benefits, inheritance, the right to advocate for an incapacitated partner.

A few months later I married the same man in a religious ceremony presided over by a Lutheran minister and a Catholic priest. It was a beautiful ritual, held in front of family and friends, to affirm our love and our promise to spend the rest of our lives with one another. It had no legal effect whatsoever, but it did give us an event to remember and celebrate for many years to come.

So why shouldn't all of us consider the possibility of separating “marriage” with all of its trappings of religion and ritual from the legal institution of a “civil union”? If the state were to offer everyone “civil unions,” based on nothing less than the legal privileges now accorded to married persons, we could create a completely level playing field between gay and heterosexual couples. We could call ourselves “cued” (“civil unioned”) on IRS and census forms and “married” at social events like Back-to-School-Night and office parties.

If everyone were “cued,” the whole alleged attack on “marriage” by gay couples would become a moot point, at least in political terms. People could still order flowers, buy gowns and tuxedos, and affirm their unions in the church, temple, mosque, or synagogue of their choice. These events just wouldn't have any legal status. They would be private celebrations of love between two people in front of friends and family.

I've been happily married for over twenty years, but I'd just as happily commemorate my next anniversary as a “civil union” if that change in legal status meant that other couples, particularly gay couples, could have the same privileges and responsibilities that I've enjoyed for so many years with the man I love. Wouldn't that be something to celebrate?