Open Letters to Our Activists (7.14.09)
As committed partners in the fight for LGBT equality, we’ve joined with like-minded groups and ACLU colleagues in publicly calling for going back to the ballot in the fight for marriage equality in California when we’ve established what it will take to win, and not a moment later or sooner.
Read the open letter we signed along with the National ACLU and the other California affiliates here.
Read the Prepare to Prevail letter that we signed along with more than two dozen other organizations here.
Motion Filed to Intervene in Federal Challenge to Prop. 8 (7.9.09)
Lambda Legal, the National Center for Lesbian Rights (NCLR) and the American Civil Liberties Union (ACLU) today asked the U.S. District Court in San Francisco to allow Our Family Coalition, Lavender Seniors of the East Bay, and Parents, Families, and Friends of Lesbians and Gays to intervene in Perry v. Schwarzenegger, a federal lawsuit challenging California’s Proposition 8. In an order issued June 30 and confirmed at a hearing on July 1, Judge Vaughn R. Walker granted a motion to intervene by supporters of Proposition 8, and declined to rule on a request by plaintiffs for an immediate injunction staying the marriage ban. He called instead for a trial to resolve a number of critically important factual questions about LGBT people and constitutional rights, including questions about same-sex couples as parents, whether Proposition 8 was passed with discriminatory intent, and whether allowing same-sex couples to marry undermines the stability of heterosexual marriages.
“Denial of marriage inflicts harms that vary by age, socio-economic class, the presence of minor children and the many other ways the gay community is diverse, often stigmatized and uniquely vulnerable,” said Jennifer C. Pizer, National Marriage Project Director for Lambda Legal. “These groups wish to illustrate for the court the diverse needs of their members and the lesbian, gay, bisexual, and transgender (LGBT) community generally to provide the full factual record Judge Walker said will help the appellate courts as they decide whether LGBT people in California have the same basic rights as the Golden State’s heterosexual population.”
“The questions posed by the court are exactly the questions our organizations have been addressing for years in state and federal courts all across the country,” said James Esseks, co-director of the ACLU’s Lesbian Gay Bisexual Transgender Project. “Again and again we’ve seen that the more courts know about LGBT people, the better they understand why everyone must be free to exercise the same constitutional rights regardless of sexual orientation.”
The law firms Gibson Dunn & Crutcher and Boies, Schiller & Flexner filed Perry v. Schwarzenegger in U.S. District Court for the Northern District of California on May 27, 2009 on behalf of two same-sex couples who were denied a marriage license earlier that month.
“We believe the involvement of these community groups will significantly help the Court decide the case,” said Shannon Minter, Legal Director of the National Center for Lesbian Rights. “Judge Walker said he believes the appellate courts will benefit if he creates an evidentiary record about the people affected by Proposition 8, the supposed reasons for the initiative, and its actual effects. His view is consistent with our experience that more information helps when courts are facing novel questions about LGBT people and our families.”
Lambda Legal, NCLR and the ACLU also filed a friend-of-the-court brief in the same case on June 26. Regarding the friend-of-the-court filing, Chad Griffin, Board President of The American Foundation for Equal Rights, the group backing the lawsuit, said in a statement, "We are pleased to have the amicus brief from the ACLU, Lambda Legal and NCLR, which have brought inspiring leadership and legal expertise to the cause of ensuring all Americans are treated equally under the law. This case is about the denial of fundamental Constitutional rights, and its significance is underscored by the united front presented to the court."
Make Change, Not Lawsuits (5.27.09)
Now that we’ve won marriage in five states, should we be bringing lawsuits in other states or suing the federal government? If not, what can we do to help secure the freedom to marry nationwide?
Bottom Line: If you’re ready and it’s right for you, get married. If you do, claim the name and act like what you are―married. But don’t go suing right away. Most lawsuits will likely set us all back. There are other ways to fight that are more likely to win.
Summary: The fastest way to win the freedom to marry throughout America is by getting marriage through state courts (to show that fairness requires it) and state legislatures (to show that people support it). We need to start with states where we have the best odds of winning, and then ask Congress and the Executive Branch to end the federal government’s discrimination against same-sex couples. When we’ve won in a critical mass of states and have basic support in federal law and policy, we can turn to the federal courts and ask that the U.S. government end any remaining discrimination against LGBT people. And we’ll ask that all states give equal treatment to all marriages and civil unions that are celebrated in other states. Couples who want to should get married where they can, call themselves married, and ask that family, friends, neighbors, businesses, employers and the community treat their marriages with respect. Making the marriages of same-sex couples a conspicuous part of American society will help us get something we’ll need to win ultimately: public acceptance of equal treatment for LGBT families. [A word to the wise: getting married could have unintended and damaging consequences for some people. If you are in the military, on a visa, thinking about adopting or getting government benefits, you should talk to a lawyer who knows that area, or get in touch with one of the LGBT legal organizations.]
These are among the many things people can and should do—urgently—to get marriage nationwide. Working together we can defend the transformative wins in Massachusetts, Connecticut, Iowa, Vermont, and Maine and build on them until we win equality, liberty and justice for all.
But one thing couples shouldn’t do is just sue the federal government or, if they are from other states, go sue their home state or their employer to recognize their marriage or open up the health plan for same-sex spouses. Pushing the federal government with multiple lawsuits before we have a critical mass of states recognizing same-sex relationships or suing in states where the courts aren’t ready is likely to lead to bad rulings. Bad rulings will make it much more difficult for us to win marriage, and will certainly make it take much longer.
1. Should we use the good court decisions on marriage (in MA, CA, CT, and IA) to get marriage in other states?
Absolutely, but not necessarily by filing a lawsuit. We all need to be smart about how we go about making progress on this issue. We’ve now won marriage in four state courts (MA, CA, CT, and IA) and didn’t win marriage, but at least got civil unions in two others (NJ and VT). But marriage cases have lost altogether, for now, in five other state courts (AZ, IN, MD, NY, and WA) in the past ten years. So far, we’ve gotten civil unions and domestic partnerships from legislatures (without court orders) in seven states (CA, CT, HI, ME, NH, OR, WA) and this spring three state legislatures passed marriage laws (VT, ME, NH). And while we won an inspiring marriage victory in court in California, we also lost that right (at least for now) at the ballot box just months later, after an exhausting and expensive fight.
So, going forward, we’ll use the brilliant reasoning and stirring language from the good court decisions and recent legislative debates to try to persuade more legislatures to end marriage discrimination in several states that are nearly ready to pass marriage laws. We also will defend the good new laws in Maine and Washington that may be subject to voter referenda. We’ll work as well to identify other state legislatures and courts that may be ready to do the right thing. And we'll need everyone to help create the climate that helps judges and legislators to do the right thing.
Right now, we need to choose the courts and legislatures where we have the best chance of winning for two reasons. First, these efforts take time and money, and we don’t have unlimited resources. We have to pick. Second, as answer number 3 (below) explains in a bit more detail, losses hurt. Courts and legislatures pay attention to what is going on in other states. When we lose in one state, the loss makes it tougher to win in others.
2. Should folks travel from their home state to other states to get married, and then sue to get their home states and employers to recognize the marriages?
Probably not. Courts have already said that New York will respect marriages that same-sex couples legally enter in other states and countries. But the legal arguments that worked in New York probably won’t work in most states because they have passed laws or constitutional amendments saying that they will refuse to respect the marriages of same-sex couples. It will be tougher to win in those states. We need to lay the groundwork by changing the climate—convincing community leaders, moving public opinion—before we rush into court.
Since states generally do honor marriages from other states, people tend to think the federal constitution, through “full faith and credit,” requires that. Actually, for the most part, states honor out-of-state marriages voluntarily, for common-sense reasons. Occasionally states refuse, for example with marriage of couples too young to marry in their home state. So far, the U.S. Supreme Court hasn’t said the Constitution requires “full faith and credit” for things like marriage licenses. Using state laws that support honoring other states’ marriages (the legal doctrine of "comity"), rather than the federal constitutional doctrine of “full faith and credit,” is the better place to start.
And in a state with a law against honoring the marriages of same-sex couples, suing a private employer or other institution that isn’t part of the government over its refusal to honor your marriage is almost always a really bad idea. Private employers don’t make the law, so they are likely to seem like an innocent bystander to many juries and judges. That makes the odds of winning even more remote and it could unnecessarily anger a public whose support we ultimately want to have. At the same time, there is every reason to try to convince employers to honor marriages from out-of-state. See question 7.
3. What’s the problem with losing a few cases? Since we can’t marry in many states now, we’re no worse off, right?
Wrong. Losses hurt, for three reasons.
1. It will take longer to win the right to marry in states where we first lose cases, than it would if we waited and took other steps first. As society gets more used to same-sex couples being married, it will be easier to win cases in states that look iffy now. In a few years, the cases just won't seem like such a big jump. If we plunge ahead and lose cases in those states now, the courts will have to overrule themselves later to go our way. That usually takes a few years at least, and often much longer. That means it is likely to take longer to get a good decision than it would have taken if we hadn't brought a case early on and lost it.
2. It will slow us down in stronger states. It will be easier for us to convince courts and legislatures that the marriage ban should be ended if we win a series of cases, especially if we win more marriage cases than we lose. Currently we’ve got 4 wins and 5 losses among the marriage cases brought in state courts over the last ten years. And the handful of cases brought years ago and more recently in federal courts all have lost. Courts pay attention to what other courts do. If we win most cases, that will confirm that we have the stronger constitutional arguments. And while legislatures don’t have to agree, court rulings that say the exclusion is unfair and unequal are a major help to our political arguments. Courts still have considerable moral authority in America, especially on the constitutional requirements of fairness and equal treatment. By contrast, early and unnecessary court losses in Arizona and Indiana hurt our other cases, including the ones in New York, Washington, and Maryland, where we lost by close margins and the courts adopted contorted reasoning from those earlier decisions. And because, so far, more marriage cases have been lost than won, taking on a principled but long-shot case and racking up more losses now would just make it harder to convince other courts and legislatures.
3. It will hurt LGBT people on other issues. The constitutional arguments that we make in the marriage cases also appear in our cases about other issues, such as employment, adoption, or child custody. If we bring a marriage case in which a court says that the constitution does not protect us, we’ll be harmed in these other contexts as well.
4. Shouldn’t we try to bring a federal case and get it to the U.S. Supreme Court as soon as possible to settle the issue once and for all?
No. The history is pretty clear: the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states. For example, few states still had laws requiring racial segregation or outlawing interracial marriage by the time the Court struck those laws down. Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas's law.
Right now, we need to make gains in both public opinion and state law. The current Supreme Court has been taking a pretty narrow view of civil rights and civil liberties. Even the strongest LGBT rights decision the Court has issued—the Lawrence v. Texas case striking down laws against intimacy for same-sex couples—explicitly commented that it was not saying anything about formal recognition of same-sex relationships. The arguments in the briefs are not the only thing that influences the Court’s decisions. The climate of receptivity and momentum in the country on these issues matter as well. There is much we can and should do together to strengthen our hand before we put a federal marriage case before the justices.
There are also serious risks if we go to the Supreme Court and lose, especially if we’ve asked it to set aside state limits on marriage. We could still ask state courts to strike down marriage bans under state constitutions, and we could still ask state legislatures to pass marriage laws. But most state courts and legislatures pay attention to what the U.S. Supreme Court says about constitutional principles of fairness and equality. It will be harder for us to get state courts to strike down laws excluding same-sex couples from marriage (and many from civil unions, too) if the U.S. Supreme Court has said such laws are okay under the federal constitution.
A loss now may make it harder to go to court later, and we may need to. It will take us a lot longer to get a good Supreme Court decision if the Court has to overrule itself. Let's not forget: it took 17 years to undo Bowers v. Hardwick, the 1986 Supreme Court decision that upheld Georgia’s sodomy law. That was fast for the Supreme Court. And during that time, many LGBT Americans lost jobs, lost custody of their children, and suffered other harms because the Bowers decision was taken as a license to discriminate against us.
5. Should we get married and then sue the federal government to get it to honor our marriages, say for example, for immigration, tax, or social security?
No. In 1996, Congress passed a law saying that the federal government would discriminate against the marriages of same-sex couples (the so-called “Defense of Marriage Act” or DOMA) by denying them all the protections that the federal government gives to all other validly married couples. As a result, the federal government for five years has been discriminating against the married same-sex couples of Massachusetts. It will, as things now stand, continue to deny equal treatment to same-sex couples that marry in Connecticut, Iowa, Vermont, and Maine, and to those who married in California in 2008.
There are two ways to get rid of "DOMA": going to court to have the law declared unconstitutional or getting Congress to repeal it (something President Obama has said he supports). These approaches can work together, and we are doing both. We’re working with members of Congress on repeal legislation now. In addition, Gay & Lesbian Advocates & Defenders (GLAD) has filed a thoughtfully constructed lawsuit in federal court on behalf of a diverse group of plaintiffs married for years in Massachusetts. These plaintiffs are eligible for a range of federal benefits, applied for those benefits, and were denied following extensive administrative procedures. If that lawsuit succeeds, it should establish a principle that will be fatal to DOMA, and we can bring other lawsuits addressing other federal protections to build on it.
GLAD’s lawsuit challenging DOMA is more modest than a case claiming there is a federal constitutional right to marry. Until DOMA was passed, the federal government deferred to the states' determinations of marital status. DOMA creates a "gay exception" and says the federal government will not honor a state's marriage of same-sex couples. GLAD’s legal challenge to DOMA simply asks that the courts tell the federal government to go back to doing what it did before—recognize all marriages that a state has approved. In contrast, a federal case arguing that it is unconstitutional not to let same-sex couples marry would ask the courts in effect to order that couples be allowed to marry in every state, overthrowing most state marriage laws. That case asks for much bolder action from the courts, and it requires a much bigger development in constitutional law. We think the courts aren’t ready to do that yet.
And last, but not least, before bringing any federal case, people should beware of unintended consequences. For example, a case focused on immigration could lead to the deportation of the non-American member of a bi-national couple.
6. If we’re not going to win by suing more states or the federal government now, how are we going to win?
There are two things we need to do to win the freedom to marry nationwide. First, we need to change the law. Like other civil rights movements, we are doing that state by state, starting with the states where we have the best shot. In some states, we’ll get marriage through the state legislature, to emphasize that it has popular support. In other states, we’ll go to the courts, to highlight that excluding same-sex couples is inconsistent with basic principles of fair play.
When we’ve been successful in the states most likely to go our way, it will be easier to win in other states. As we build significant support among the states, we’ll be able to ask Congress and the Obama Administration to give our marriages the same treatment the federal government gives all other marriages, by including them in federal laws and programs. Congress could do that in a single bill. The Administration also could increase LGBT equality through countless federal regulations and Executive Branch policies.
Even as America embraces, state by state and in the federal government, the view that it is unfair to exclude same-sex couples from marriage, a few states may hold out against the emerging consensus. Ultimately, the key to national equality may be the federal government, as it has been in all the other civil rights movements – but national resolution comes after groundwork, not in one quick roll of the dice.
The second thing we need to do, as explained more in the answer to question 7, is convince America to accept the change, to accept the idea that our constitution does not allow discrimination. Equal treatment under the law is all we are asking for – not more, not less.
7. So if we shouldn't generally be suing, what should we be doing?
Neither court decisions nor legislatures can make effective, enduring change in a democratic republic as diverse as this one unless people either come to agree with the change or to accept that it is required by an important higher principle. That was true with racial segregation, it was true with sex discrimination, and it will be true with discrimination against same-sex couples in marriage.
Changing the law through court decisions based on fundamental principles of fairness and equality helps persuade people that change is the right thing. But the most powerful agent of change in America is people.
Nothing moves Americans on LGBT rights generally and marriage in particular more effectively than conversations that all LGBT people can have with our friends and family members about how it feels to be treated differently and why that is so unfair. Believe it or not, many of our friends and family members don’t realize the burdens and barriers we face, but most would agree that our constitution guarantees the same equal protections to everyone, and that no one should be treated differently. The most important thing you can do to make progress in our fight for marriage is to talk to your family, friends, co-workers and community about your marriage if you have married, or about why you want to have the choice to marry, if you have not. Talk in very practical terms about why it is so important. Talk about what it means to be able to marry and have all the fundamental freedoms that others have. Go here to see a campaign endorsed by all of our groups, and many others, that explains how to get these conversations started.
Simply getting married (if you can and it’s right for you) and telling people will help get those conversations going. But you shouldn’t stop there. Changing people’s minds happens over time and after long-term, incremental campaigns. California’s history on recognizing same-sex relationships is a case in point. Cities in California started adopting Domestic Partnership policies in the mid 80s. The state adopted its first law in 1999, and expanded it over the next six years. Courts in California have been deciding important cases about anti-LGBT discrimination since the 70s. With the marriage victories in five states so far, we should be able to win marriage more quickly in other states and to open serious conversations among members of Congress and Executive Branch officials. But we still need to lay the groundwork at the local level. Ask your employer to include your spouse in the health and benefit plans; ask them to do a domestic partnership policy if they decline. Ask your town to establish a local domestic partnership registry if you don’t have one yet. These are some of the concrete tasks and tactics that people can do that will create the climate for the advances we all want, rather than rolling the dice on litigation. You can connect with your local LGBT advocacy group here.
Doing those things will have practical benefits. But maybe more important, they’ll spark the conversations we need to make the changes in law enduring and real at a day-to-day level.
8. We all have a stake in defending marriage in Maine and winning it back in California at the ballot box.
While we engage in personal conversations to change hearts and minds in all 50 states, and work to win the freedom to marry in more states in the months and years ahead, there are two fights looming now that will be crucial to our continuing to make progress on marriage for same-sex couples: Maine and California.
In Maine, the state legislature overwhelmingly passed a marriage equality bill and the Governor signed it. Now those who oppose equality are forcing a referendum vote on the new marriage law this November. It is critical that we all help defend this legislative breakthrough and it is entirely doable. With support from those of us across the country who are benefiting from Maine’s strong example, the state should be able to hold onto marriage in November.
In California, we won marriage in the courts but then lost it at the ballot. Now that the California Supreme Court has refused to overturn that vote, we need to return to the state ballot box to win marriage back.
These fights are important nationally because holding marriage in Maine and regaining it in California will be huge steps forward in the fight for the freedom to marry. As the first popular vote on marriage after Prop 8 and after all of the legislative and court wins this spring, the Maine election is important both for Maine and for the rest of the country. Success in California will have vast influence because California is the largest state, because it is so important to the national economy, and because California is our national trendsetter.
But winning these next battles won’t be easy. Antigay groups already are gathering their resources to attempt to swamp Maine with divisive, defamatory propaganda. And in California, there are literally hundreds of thousands of fair-minded people who aren’t with us yet and need to be convinced. Convincing the reachable middle in both states needs to happen on a retail level – by engaging them in conversations that will make them more comfortable with LGBT people, more understanding of the challenges we face, and more willing to agree that allowing us to marry gives us crucial protections and does not harm them.
So please, now’s the time to contribute – in time, in energy, in conversations, and in money – to the efforts currently being organized to hold onto marriage in Maine and to win it back at the ballot box in California.
Why the ballot box and not the courts should be the next step on marriage in California. (5.27.09)
Now that the California Supreme Court has refused to strike down Proposition 8, we need to go back to the voters. Since we lost Proposition 8 just six months ago, and since a ballot initiative to repeal is likely to require a huge investment in time and money, it is tempting to at least try a federal lawsuit first. But it’s a temptation we should resist. It is by no means clear that a federal challenge to Prop. 8 can win now. And an unsuccessful challenge may delay marriage even longer, not only in California but in other states, and seriously damage the rights of LGBT people on many other important issues.
Rather than filing premature lawsuits, we need to talk to our friends, family and neighbors, and help them understand why denial of the freedom to marry is wrong. We need to build a vigorous, aggressive campaign to overturn Prop 8 and restore the freedom to marry in California. This is the moment to convince California and America that we should have the freedom to marry.
History says the odds at the Supreme Court now are not so good.
The history is pretty clear: the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states. For example, few states still had laws requiring racial segregation or outlawing interracial marriage by the time the Court struck those laws down. Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas's law.
Right now, we need to make gains in both public opinion and state law. The current Supreme Court has been taking a pretty narrow view of civil rights and civil liberties. Even the strongest gay rights decision the Court has issued—the Lawrence v. Texas case striking down laws against intimacy for gay couples—explicitly commented that it was not saying anything about formal recognition of same-sex relationships. The arguments in the briefs are not the only thing that influences the Court’s decisions. The climate of receptivity and momentum in the country on these issues matter as well. There is much we can and should do together to strengthen our hand before we put a federal marriage case before the justices.
There is a lot to lose.
There are also serious risks if we go to the Supreme Court and lose, especially if we’ve asked it to set aside state limits on marriage. We could still ask state courts to strike down marriage bans under state constitutions, and we could still ask state legislatures to pass marriage laws. But most state courts and legislatures pay attention to what the U.S. Supreme Court says about constitutional principles of fairness and equality. It will be harder for us to get state courts to strike down laws excluding same-sex couples from marriage (and many from civil unions, too) if the U.S. Supreme Court has said they are okay under the federal constitution (take a look at how much the Connecticut and Iowa Supreme Courts relied on analysis from the U.S. Supreme Court in their marriage decisions).
There is a very significant chance that if we go to the Supreme Court and lose, the Court will say that discrimination against LGBT people is fairly easy to justify, and that same-sex couples can be denied the right to marry based on mistaken, antigay assertions that LGBT people make bad parents. Indeed, we have recently lost marriage cases on that very basis in the state high courts of New York, Maryland, and Washington, and in intermediate appellate courts in Arizona and Indiana. Such a ruling from the U.S. Supreme Court could hurt us badly in cases about parenting, schools, and government jobs.
A loss now may make it harder to go to court later, and we may need to. It will take us a lot longer to get a good Supreme Court decision if the Court has to overrule itself. Let's not forget: it took 17 years to undo Bowers v. Hardwick, the 1986 Supreme Court decision that upheld Georgia’s sodomy law. That was fast for the Supreme Court. And during that time, many LGBT Americans lost jobs, lost custody of their children, and suffered other harms because the Bowers decision was taken as a license to discriminate against us.
The limited DOMA challenge filed by Massachusetts couples is less risky.
In 1996, Congress passed a law saying that the federal government would discriminate against the marriages of same-sex couples (the so-called “Defense of Marriage Act” or DOMA) by denying them all the protections that the federal government gives to all other validly married couples. As a result, the federal government for five years has been discriminating against the married same-sex couples of Massachusetts. It will, as things now stand, continue to deny equal treatment to same-sex couples that marry in Connecticut, Iowa, Vermont, and Maine, and to those who married in California in 2008.
There are two ways to get rid of "DOMA": going to court to have the law declared unconstitutional or getting Congress to repeal it (something President Obama has said he supports). These approaches can work together, and we are doing both. We’re working with members of Congress on repeal legislation now. In addition, Gay & Lesbian Advocates & Defenders (GLAD) has filed a thoughtfully constructed lawsuit in federal court on behalf of a diverse group of plaintiffs married for years in Massachusetts. These plaintiffs are eligible for a range of federal benefits, applied for those benefits, and were denied following extensive administrative procedures. If that lawsuit succeeds, it should establish a principle that will be fatal to DOMA, and we can bring other lawsuits addressing other federal protections to build on it.
GLAD’s lawsuit challenging DOMA is more modest than a case claiming there is a federal constitutional right to marry. Until DOMA was passed, the federal government deferred to the states' determinations of marital status. DOMA creates a "gay exception" and says the federal government will not honor a state's marriage of same-sex couples. GLAD’s legal challenge to DOMA simply asks that the courts tell the federal government to go back to doing what it did before—recognizing all marriages that a state has approved. In contrast, a federal case arguing that it is unconstitutional not to let same-sex couples marry would ask the courts in effect to order that couples be allowed to marry in every state, overthrowing most state marriage laws. That case asks for much bolder action from the courts, and it requires a much bigger development in constitutional law. We think the courts aren’t ready to do that yet.
The bottom line.
A marriage case based on the federal constitution may well not win the right to marry back in California. A loss would likely set back the fight for marriage nationwide, and hurt LGBT parents, employees, and students all over America.
We lost the right to marry in California at the ballot box. That’s where we need to win it back. Reversing Prop 8 at the ballot in California will set a powerful political precedent and help change the national climate. We can persuade the hundreds of thousands of fair-minded but still-conflicted voters we need, if we do the work. So let’s get started now.
Statement by ACLU/SC Executive Director Ramona Ripston on California Supreme Court Decision (5.26.09)
Shame on California. Shame on California! We are deeply disappointed by the California Supreme Court’s cowardly decision today, which for the first time in our state’s history permits a majority of voters in a single election to strip a fundamental constitutional right from a minority group that has historically been discriminated against.
We cannot have one set of laws for some Californians, and another set of laws for others. The implication of this decision -- that our state constitutional democracy, with its elegantly designed system of checks and balances, is in fact a direct democracy in which the “tyranny of the majority” has the final say on all matters -- is profoundly disturbing. The court’s decision creates a situation for gay and lesbian people in California that is simply unfair, and it will not stand.
We are pleased that the court has protected same-sex couples who married before November 5, and affirmed its prior position that any type of government discrimination based on a person’s sexual orientation is subject to the strictest level of constitutional review under the California Constitution. However, these aspects of the court’s ruling do not mitigate its acceptance of ongoing discrimination against same-sex couples who wish to marry.
Public opinion is moving in the direction of fairness and equality for all. We are proud to have been joined in our fight against Proposition 8 by dozens of community and civil-rights groups as well as more than 800 religious organizations; major corporations; and many officials from the state legislature and municipalities around the state. It is only a matter of time before the freedom to marry is secure for all Californians.
A renewed effort to overturn Proposition 8 begins today. We will consult with our many partners in this battle, and we will work with them to develop an appropriate strategy that will strike down this deplorable, discriminatory initiative. An important part of that strategy will surely be to directly engage voters in communities large and small, diverse and not so diverse, liberal and conservative. It will take time, determination and a united effort to overturn Proposition 8, but we have all those things, and we will use them to full advantage.
Prop 8 Challenge Legal Team to Hold Press Conference Tuesday, May 26 Following Supreme Court Ruling
The California Supreme Court has announced that it will rule Tuesday, May 26, 2009, on whether Proposition 8, passed by a slim majority of voters on November 4 and eliminating the right of same-sex couples to marry, was a valid amendment to the California Constitution. At 10:30 a.m. – approximately 30 minutes after the expected posting of the ruling – attorneys for plaintiff couples will join community leaders at a news conference to discuss the ruling and what it means for California’s same-sex couples and their families, communities of color, and the future of LGBT rights in California. Clergy members will deliver an invocation at 9:45 a.m., shortly before the ruling is announced.
Location:
Lucy Florence Cultural Center, 3351 W. 43rd St. in the Leimert Park district of Los Angeles. Schedule: 9:45 a.m., clergy invocation 10:30 a.m., news conference
Participants:
- Ramona Ripston, executive director, ACLU of Southern California
- Ron Buckmire, Jordan Rustin Coalition
- Jenny Pizer, director, Lambda Legal Marriage Project; co-counsel, Strausss v. Horton
- Rocky Delgadillo, Los Angeles City Attorney
- Nancy Ramirez, Western Regional Attorney, MALDEF
- The Rev. Eric Lee, President/CEO, Southern Christian Leadership Conference of Southern California
- Mark Solomon, Equality California (organizational plaintiff in Strauss v. Horton)
- Jorge Amaro, Latino Equality Alliance
- Doreena Wong, API Equality
- Lorri L. Jean, CEO, LA Gay and Lesbian Center
Gay rights groups filed Strauss v. Horton, challenging Proposition 8, on November 5. The National Center for Lesbian Rights, Lambda Legal and the ACLU, representing six couples and Equality California, argued that the radical change attempted by Proposition 8 amounts to a ―revision‖ of the California Constitution that cannot be accomplished by a simple majority vote of the electorate unless first approved by a two-thirds vote of both houses of the Legislature. Civil rights groups representing people of color and other minority groups joined the challenge because of a shared concern about protecting the constitutional guarantee of equality. Local couples and community leaders will be available in English, Spanish, Chinese and Korean for one-on-one interviews.
State Supreme Court Urged To Strike Down Prop 8 (3.5.09)
Attorneys for same-sex couples, civil rights organizations and the state Attorney General’s Office appeared before the California Supreme Court today to urge the court to strike down Proposition 8, which took away the right of same-sex couples the right to marry.
"This case is about far more than the right to same sex marriages," said Mark Rosenbaum, legal director for the ACLU of Southern California. "It’s about the core tenet of our constitutional democracy -- that the fundamental rights of historically disadvantaged minorities do not depend upon the will or whim of the majority. If Prop. 8 stands, then the constitutional check on the majority will have been replaced by a blank check. Presidents Madison and Lincoln would turn over in their graves at the notion that the majority can always have its way with minorities."
California Supreme Court Date Set (2.3.09)
The California Supreme Court will hear oral arguments challenging Prop. 8 on Thursday, March 5, 2009. We join a coalition of civil rights groups, religious organizations, labor unions, and legal scholars in arguing that Proposition 8 is invalid because the people of California have established strict safeguards that prohibit the underlying principles of the California Constitution from being changed by a simple majority vote. By taking away a right only from one group, Proposition 8 violates the most basic principle of our government: that all people are entitled to equal treatment under the law.
California Attorney General Jerry Brown is also asking the Court to invalidate Proposition 8 on the ground that certain fundamental rights, including the right to marry, are inalienable and can not be put up for a popular vote.
New Outreach Campaign Launched (2.2.09)
The ACLU of Southern California has partnered with Join the Impact and other national LGBT groups on Tell3, a Web-based public education campaign encouraging LGBT people and their supporters to have three conversations with friends and family to help build support for LGBT equality. Take a look, and spread the word!
Overview of the Prop 8 Challenge (1.9.09)
On November 5, 2008, the day after Proposition 8 was approved by voters, the California ACLU affiliates joined with the National Center for Lesbian Rights, Lambda Legal Defense and Education Fund, Inc., and the law offices of David C. Codell, Munger, Tolles & Olson, and Orrick Herrington & Sutcliffe to file suit in the California Supreme Court to invalidate Proposition 8.
We argue that Proposition 8 is a revision to the California Constitution, rather than an amendment, and therefore cannot be adopted by a simple majority vote on an initiative. Revisions, unlike amendments, must be approved by a two-thirds vote of the legislature before being submitted to the voters or a constitutional convention. Our position is that Proposition 8 is a revision because it subverts the constitutional guarantee of equal protection, allowing a simple majority of voters to deprive a particularly vulnerable minority, such as LGBT people, of fundamental rights, and prevents courts from exercising their unique responsibility to uphold the equal protection rights of minorities.
Our case, Strauss et al. v. Horton et al., was consolidated with cases filed by other plaintiffs, including various individuals and a coalition of cities and counties. The California Supreme Court agreed to decide the case in the first instance, without waiting for lower courts to address the issue. The court placed similar cases, filed by other plaintiffs including various civil rights and religious organizations, on hold pending the outcome in Strauss and its companion cases.
The court allowed proponents of Proposition 8 to intervene in the case to attempt to defend its validity.
In its November 19 order, the court directed the parties to brief the following issues:
- Is Proposition 8 invalid because it is a revision rather than an amendment to the California Constitution?
- Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
- If Proposition 8 is not unconstitutional , what is its effect, if any, on the marriages of same-sex couples performed before its adoption?
On Friday, December 19, 2008, the intervenors filed their brief and the state filed its brief.
Unsurprisingly, the proponents of Proposition 8 claim it is a valid amendment. They also argue that it retroactively invalidates marriages of same-sex couples performed before its adoption.
The state Attorney General argues Proposition 8 is invalid because the initiative process may not deprive persons of certain fundamental rights without a compelling justification, which is not present in this case. The state also argues that even if it is valid, Proposition 8 is not retroactive.
