By law, the Supreme Court of California has 90 days to release its decision on the Proposition 8 case which it heard in March. That date is fast approaching, in early June. However, they can release the decision at any time before then. They announce upcoming decisions the day before, at the Court website. Opinions are released on M and Th at 10am, so keep looking for an announcement on the night before.
There are two questions before the court.
First, does the vote of a majority overrule the rights of a minority on a "fundamental right"? That is, was Prop8 legal on the ballot, and even eligible for popular vote? Is taking away a fundamental right that the court has identified, a revision of the Constitution, or a mere amendment? Ken Starr admitted during arguments that the Pro-H8 view was that any minority right was at the whim of the voters. He actually said no rights are inalienable. This isn't just about marriage equality. This means that the rights of religious groups to practise their faith, or of ethnic groups to vote and fully participate, are, according to Ken Starr, completely reversible--an astonishing idea!
It's useful to remember that if inter-racial marriage, allowed by the CA courts in 1948, and by the US Supreme Court in 1967, had been put to the voters, it would not have become legal until around 1994. It wasn't until then that a majority of Americans felt it was "okay" for blacks and whites to marry--and it is arguable that if it hadn't been legal already, "approval" would have taken even longer. Importantly, the Constitution exists in part to protect the minority from the majority. We don't put the rights of the minority to mob vote. Or do we?
The second question is, are the same-sex marriages that were legally performed between May and November of 2008 still legal? Pro -Prop8 advocate Starr says those marriages (which include mine) ceased to exist legally on 5 Nov 2008, making this a retroactive decision. The court seemed less comfortable with the argument that the proposition could "reach back" in this way. Of course, leaving these marriages legal would create an awkward legal situation where there are two classes of gay people in the state: those who married, and those who can't.
The general consensus of pundits following the arguments in March was the the court was against us on the first issue, and possibly for us on the second issue.
And look what's happened since then. Iowa. Vermont. New Hampshire. Maine. Washington DC. Joining Massachusetts and Connecticut, with New Jersey coming along. And unexpected voices in favor of gay rights. And a recent poll suggesting Americans actually favor same-sex marriage rights by a narrow margin .
Will the California court temper its decision with this groundswell? Some think so, though this seems too hopeful; most reviewers doubt it. Still, we cannot deny that there has been a major, and rapid change in the climate. It's also useful to remember that the California legislature passed a marriage equality bill TWICE before the initial decision, which was vetoed by the governor, on the grounds that the court should rule first. The court subsequently ruled, in May 2008, that all citizens have a fundamental right to marry the person of their choice. Very similar to the words used in the landmark Perez v. Sharp decision of 1947, that overturned California's anti-miscegenation laws. It would really be unprecedented for fundamental rights that have been approved by both court AND legislature, to be eliminated by a mob vote, but of course that doesn't mean it won't happen.
So, we have work to do. We must assume that there will be a new ballot initiaitve in 2010 regardless. You can support that, and learn more here, at Equality-CA and here, at the Courage Campaign . There are more advocacy sites in the sidebar.
But HUGELY important is, We have to respond to the decision, whether pro or con. If you are in California, you can participate here. Many CA cities will have an event, whether to celebrate or to protest. This is critical. If our community doesn't care, who will? Remember the power of the November march when we all came together.
Additionaly, activists plan to meet in the middle the weekend after the decision, in Fresno. The idea being that it is the "heartland" of California that passed Prop8, and therefore we have to take the argument to those voters. If you can possibly get to Fresno that Saturday, please do. Check the Day of Decision or Join the Impact websites for information, including Twitter and Facebook links. I know that Amtrak serves Fresno on the San Joaquin line.
Amidst all this, I hate the fact that I still have this insistent little bird of hope. It's tiny, just a little thing. The realist in me expects the worst, and the problem with having a little bird of hope is that it is so agonizing when it is killed, yet again. It is so much worse to feel its death than not to have heard it to begin with.
But at least the agony of waiting is almost over. Work and life have suffered enormously from living in this limbo, which has been corrosive in so many ways. Let's get it over with, one way or another, let's know the worst, and then move on to the next step.
Original version posted at Friends of Jake