On March 5, 2009 the California Supreme Court heard arguments on whether Proposition 8, a constitutional amendment to ban same sex marriage, is valid. The Court has 90 days to decide whether to allow or forbid same sex marriage. On November 5, 2008 37% of the 17.3 million voters in California supported an initiative that would change the constitution to make marriage exclusively available between one man and one woman. In contrast, 26% voted to keep same sex marriage legal and 37% of the electorate did not vote at all.
In the almost three months the Supreme Court has been contemplating its response five more states--beyond Massachusetts--have legalized same sex marriage: Connecticut, Iowa, Maine, New Hampshire, and Vermont.
For the combatants on both sides, those in favor and those opposed to same sex marriage, Proposition 8 is a test of how human rights policy is made in California, because on May 15, 2008 the Supreme Court of California had ruled that same sex marriage was legal in California.
Specifically the Court held that given the legal rights available to gays and lesbians in California, to deny us the right to marry was a harmful and discriminatory distinction.
The oral arguments heard by the Supreme Court on March 5th produced three lines of discussion, one of which may create a distinction in human rights law not seen in the
United States since the days of slavery.
The first argument was that the Justices were concerned that people like me, married when the Supreme Court said that same sex marriage was legal, need to be able to
rely on their highest court, its jurisdiction and reasoning. Coverage of the oral arguments suggests that the Court will uphold our marriages.
If the newspapers in Los Angeles, Sacramento and San Francisco are right, the Court may create, by analogy, a legal class like free people of color in a slave state, that is, gay and lesbian people who married under the full protection of the law in the window when same sex marriage was legal and who retain their marriage rights, while other gays and lesbians now are unable to marry and may not be able to do so in the future. John Hope Franklin, the great historian of the African American experience who died at 94 last month, wrote in his first book, The Free Negro in North Carolina, 1790‐1860, "that free Negroes in a slave society must be carefully regulated lest their very presence serve to overturn the system. p.10." If any gay and lesbian adults can marry, it is hard to argue why all of us cannot marry.
The second line of discussion was a query made by Associate Justice Ming W. Chin wondering if the state might eliminate the word "marriage" and give all California citizens the right to, say, "civil union". This is an interesting option, one that is consistent with law across America. Only state authority makes a couple married. If you are married in a religious ceremony without having a government-issued marriage license, you are NOT legally married. Maybe only religions should be in the marriage business, and the state of California can be in the civil union business. Everyone is treated equally.
The third, and major, direction of questions was the concern by several justices that policy should be made by the people, even though how policy is made by the people is exactly the question at hand.
The justices need to consider hard what it means to keep the same-sex marriages they made legal while forbidding future ones.
For the gay and lesbian Californians who married between May 15 and November 5, 2008, the months since November have been full of uncertainty and anger.
For me, it is like being a free person of color in a slave state. I have rights and responsibilities no longer available to other lesbian and gay Californians. I am marginally privileged, and perpetually anxious that my legal status will be taken away.
With the future of same sex marriage at risk, I fear that our marriage license, which both of us keep close at hand in case of emergencies, will not be socially sufficient to establish our marriage in crucial situations-refinancing a mortgage, buying life insurance, having marital rights if one us were hospitalized. In that way our marriage license is like manumission papers for freed slaves living below the Mason-Dixon Line before the civil war. Some slave wrangler could take them away, and it would be very hard for any freeman or freewoman to enforce his or her legal status.
Please understand, I do not equate being gay or lesbian in America in 2009 with being a slave. To do so would be to make a hideously unfair comparison. In his last speech in California, in March of 1968, the Reverend Dr. Martin Luther King, Jr. spoke of slavery in words that have all but disappeared from our national discussion. He spoke in a pained and loving voice of the excruciating cruelty and humiliation of 400 years of chattel slavery.
However, it does honor the horrible experiences of slaves to look at the legal architecture that kept them in bondage, and see what might be learned about treating groups unequally.
Hence I make an analogy rather than assert equivalence between being a free person of color in a slave state and being a lesbian married in California who may lose her marital status. Slaves could not marry legally. Free persons of color in the South could marry legally, but again they always had to prove they were both free and married. And if the worst happened, and they were unable to prove their freedom, they could be returned to slavery with few opportunities to prove their freedom or marriage in courts that, once they were deemed chattel, would not allow them to bring a case.
What will happen to my wife and me if the California Supreme Court invalidates our marriage? What will our recourse be if the courts do not protect us? How would you feel if your marriage were summarily invalidated?
Gay and lesbian marriage is just like contemporary marriage between a man and a woman. Oh yes it is. It is squarely within the historic trends for marriage. It is egalitarian, with equal rights and responsibilities for both parties. It is between two adults, knowing that polygamy is in practice virtually never fair or equal for all parties. It is based on companionship, rather than economic transfers or required procreation. In democracies, those earlier forms of marriage have been waning, legally and culturally, for more than 150 years.
I want for every gay and lesbian adult to be able to marry. I don't want to be like a free person of color in a slave state, and I don't want to go back to being a nonperson, a status like a slave who cannot marry. And if you think you should unmarry us, think again. Think what it would mean for the hope and practice of equal treatment.
All the research shows that no Southern electorate would have voted to desegregate its schools in 1954. Yet without Brown v. Board of Education we might not have gone on the great and difficult American journey that brought us a president of African American heritage.
So I say either marriage is for all or marriage is for none. I'd rather be married than be in a civil union, but I would rather be in a universally required civil union than have marriage be discriminatorily available only to opposite sex couples.