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Gay Marriage Advocates Likely to Seek Another Ballot Vote After California Supreme Court Upholds Prop 8

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Thousands have taken to the streets in California and states across the country after Tuesday’s decision by the California Supreme Court upholding Proposition 8, a ballot measure that bans gay marriage. The court’s decision does preserve the 18,000 same-sex marriages that took place last year during the few months that gay marriage was legal in California. We get reaction from Bryan Wildenthal, the first openly gay law professor at the Thomas Jefferson School of Law. He married his partner last year. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.


Thousands have taken to the streets in California and states across the country after Tuesday’s decision by the California Supreme Court upholding Proposition 8, a ballot measure that bans gay marriage. The measure, which defines marriage as solely between a man and a woman, was approved by 52 percent of California voters in November as an amendment to the State Constitution. On Tuesday, the court voted 6-to-1 to uphold the measure and rejected lawsuits that argued Proposition 8 was not simply a constitutional amendment, but a constitutional revision, which requires the legislature’s approval.

Chief Justice Ronald George noted in his majority opinion that Proposition 8 still guarantees same-sex couples the right to civil unions and, quote, “carves out a narrow and limited exception” by “reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples.”

But Justice Carlos Moreno’s sole dissenting opinion reads, quote, “even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the California Constitution since 1849. Promising equal treatment to some is fundamentally different from promising equal treatment to all.”

Reaction to the decision has been swift. Hundreds of protesters tried to block traffic near City Hall in San Francisco after the ruling, and over 150 were arrested. In Los Angeles, Jenny Pizer, the marriage project director of gay rights organization Lambda Legal, said the fight was not over and hinted at efforts to push for a ballot measure to repeal Proposition 8.

    JENNIFER PIZER: Proposition 8 stole our right to marry, and it advanced a pernicious idea of equality that puts every California minority at risk. In our view, it was a sad knee-jerk reaction to people seeing couples celebrating love and happiness with their families. Prop 8 tore our Constitution. Today’s deeply disappointing decision puts it to us as a people to repair that damage at the ballot box.


The court’s decision does preserve the 18,000 same-sex marriages that took place last year during the few months that gay marriage was legal in California. Gay marriage was permitted by a 4-to-3 decision from the California Supreme Court last May and then barred after the passage of Prop 8 in November. This is an unidentified gay man protesting Tuesday’s decision in front of the San Francisco courthouse. Last year, he married his partner of twenty-two years.

    UNIDENTIFIED: Well, right now what we have is a kind of a crazy situation. It’s like there was a special on marriage last year for three-and-a-half months, and that special is over. That cannot stand. We can’t have 18,000 happy couples happily married, but yet, if another couple wanted to get married today, they can’t.


Well, I’m joined right now in San Diego by Bryan Wildenthal. He’s the first openly gay law professor at Thomas Jefferson School of Law. Last July, he got married to his partner.

Welcome to Democracy Now! You’ll be able to remain married, Bryan?


Yes. It is a bizarre situation, like the gentleman said. Some of us are essentially grandfathered in for the time being, and we take no joy in that, because we see our friends and family members who weren’t ready last year and who may be ready this year, but they still have to fight for it.


Talk about the decision.


It’s a strange decision. It’s the latest episode in a long-running dispute here in California, started when San Francisco Mayor Gavin Newsom threw open City Hall and authorized same-sex marriages. The California Supreme Court said that was jumping the gun, couldn’t do that. Then the California Supreme Court heard a challenge, through the regular court process, to the laws which prohibited marriage between gay couples, and in a historic decision, a courageous decision, last year, the California Supreme Court said that the statutory laws in California violated the California State Constitution by not granting equal marriage rights to gay couples. They struck down those laws under the California Constitution, as it then stood.

Then Proposition 8 got put on the ballot, approved by a narrow majority, a simple majority, just 52 percent of the voters. And so, then the California Supreme Court got the case back before them for another round, and that’s what they just decided yesterday. And the California Supreme Court decided that that was a valid amendment to the California Constitution.

Now, under our California Constitution, you have two different things: you have revisions and amendments. And it has always been thought that only through a revision of the Constitution could a really fundamental, far-reaching change be made. So the issue was, is that a fundamental far-reaching change to our Constitution, to strip away a fundamental right from a single group of citizens?

And in what can only be described as a disappointing failure of nerve, the California Supreme Court ruled 6-to-1 that, yes, by a simple majority vote through the amendment process, you could strip away those rights, it did not require revision. They could have thrown it out, by saying that you have to do a revision. A revision requires a two-thirds vote of the state legislature, and only then would it go to the voters. By saying they can do it through an amendment, they are saying that a proposition based on petitions, signed by a mere eight percent of the voters and then a mere fifty-percent-plus-one approval, can strip away a fundamental state constitutional right. So, it’s a mixed bag with the California Supreme Court.

Justice Carlos Moreno, the sole dissenter from this decision, says this decision doesn’t just affect gay couples; it threatens equal protection and equal rights for any minority group, which in California, under our law, they are now at risk, any minority group — Mormons, Latinos, African Americans. Anyone whom the majority might disagree with can now have their rights stripped away, and that’s valid, simply as an amendment. You don’t have to do a revision.


Well, Bryan Wildenthal, where does the gay rights movement go now in the movement for marriage, given especially the fact that in other parts of the country more and more states are moving to legalize gay marriage?


Yeah, I think we have to go back to the voters, go back to the political process. The court, as I said, it’s a mixed bag. I think we’ve exhausted what can be achieved in the California courts. Very few people — and as a legal expert, as a constitutional law professor who studies the US Supreme Court, that’s not going to be an avenue that’s going to work under current membership of the court and under current doctrine.

So, I think we in the gay community and with our friends and supporters throughout the society have to go back to the voters and have a conversation and say, “Is it right? Should someone be denied a civil legal right, simply because some people may disagree with it or disapprove of it?” That’s not right. You know, we all — as a civilized society, to live together, we have to respect the rights of our fellow citizens to have basic rights, regardless of whether we might agree with or disapprove of their marriages or their families.


There’s an interesting piece in the LA Times that says two prominent attorneys who argued on opposite sides of Bush v. Gore, the legal battle over the 2000 presidential election, have announced they’ll challenge Prop 8 in federal court and seek to restore gay marriage until the case is closed. Former US Solicitor General Theodore Olson and David Boies, who represented then-Vice President Al Gore in the contested election, have joined forces to tackle the same-sex marriage issue in a project of the American Foundation for Equal Rights. Olson and Boies have united to represent two same-sex couples filing suit after being denied marriage licenses because of Prop 8.


Yeah, it’s a bizarre — it’s unfortunate, I think. No one among the responsible gay rights organizations, I think, is supporting that lawsuit. Ted Olson is a right-wing activist. Neither of those gentlemen, whatever else they have done, neither of them are well-known or have worked with people in the gay and lesbian community. And as a legal expert, that’s a non-starter. A lawsuit in federal court is simply going to produce a bad precedent. So I’m puzzled by that. I heard about that, and it’s pretty bizarre, I think.

Most people in California in the gay community are now focused on going back to the voters. And it’s unfortunate that we have to persuade now a majority of our fellow citizens to simply respect our basic rights. But we’re confident we can do that. There’s overwhelming support among so many groups in California for equal rights. We didn’t quite make it with Prop 8. We fell short there. But I think people have woken up now, and the tides are shifting.


Bryan Wildenthal, we’re going to have to leave it there. Thanks so much for being with us, first openly gay law professor at Thomas Jefferson School of Law in San Diego.

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