Out of the courthouse, back to the streets. That seems to be the view of thousands of members of the California gay and lesbian community seeking to secure the right to marriage. They are mistaken. Actually, civil rights history may simply be repeating itself.
As in several other states, in barely passing Proposition 8, California's voters have undone the California Supreme Court decision invalidating the California statute allowing civil unions but denying marriage because that distinction violated gay citizens' rights to equality and privacy under the California Constitution. But by doing, the electorate may well now have violated parallel guarantees contained in the United States Constitution. We have been here before.
In 1964, in the midst of a racial divide now perhaps hard to fathom after the election of Barack Obama, California's voters overwhelming passed proposition 14. Like Prop 8, that measure amended the California Constitution to invalidate the state's recent laws prohibiting race discrimination in housing. In the famed case of Reitman vs. Mulkey, first the California and then the US Supreme Court struck down the initiative as unconstitutional. They invoked well settled constitutional doctrine perhaps best stated decades earlier by Justice Robert Jackson: "the very purpose of the Bill of Rights is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities... Fundamental rights may not be submitted to a vote, they depend on no elections."
Governor Arnold Schwarzenegger and other public officials have now stated that after passage of Proposition 8, they must now follow "the will of the people." However, it is in the best tradition of the Founding Fathers to protect against laws intended only to suppress inalienable rights held by all Americans -- gay or straight . They come, after all, not from the state or the electorate; as Jefferson said, "we are endowed" with them "by the Creator."
In its In Re Marriage decision, the California Supreme Court's cited prior decisions striking down laws against interracial marriage on the grounds that under the US Constitution "marriage, so integral to an individual's liberty... may not be abrogated by the legislature or the electorate." (Without such decisions, we would have no Barack Obama). However, the state supreme court did not reach the US Constitutional question since our own Constitution guaranteed equality and privacy rights. By amending the California Constitution with Proposition 8, however, the federal question is now squarely presented -- both in the state and then eventually in the US Supreme Court. Like its California counterpart, the US Constitution protects the individual against discrimination in exercising fundamental rights including privacy -- what Justice Brandeis once called "the right to be left alone" -- from intrusion by government. Being gay does not make one a lesser citizen. Proposition 8 should now be struck down.
Several years ago, the people of Colorado passed a mean-spirited ballot measure amending their state constitution to prohibit government officials from adopting laws against gay discrimination. The Colorado and then US Supreme Court's tossed it out in Romer vs. Evans because "the disadvantage is born of animus against the category of persons affected." So too was Proposition 8 which should suffer a similar fate. Because at its core, our Constitution protects the right to be different, the right to be free. That's called liberty.
Al Meyerhoff is a civil rights lawyer in Los Angeles.