All eyes will turn to the United States Supreme Court next week as the justices hear oral arguments in two potentially landmark cases: the challenge to Proposition 8, which took away the freedom to marry from same-sex couples in California, and the challenge to Section 3 of the misnamed "Defense of Marriage Act" (DOMA), which denies legally married same-sex couples over 1,000 rights, protections and responsibilities under federal law simply because they are gay.
Never before has the court heard two significant gay rights cases simultaneously, and its rulings in these cases (expected in late June 2013) could be a defining moment in our entire community's decades-long struggle for equality under the law. These cases could decide the fundamental issue of whether the U.S. Constitution's guarantees of liberty and equality truly extend to lesbian and gay people. As our community stands before the U.S. Supreme Court and at rallies in San Francisco and all around the country next week, the potentially historic nature of these cases is unmistakable. Decades of tireless activism have all been leading to this very moment.
Before Proposition 8, the California Supreme Court issued a historic decision of its own in May 2008, when it removed the last barrier to marriage equality in California and held that the state's then-existing statutory ban on marriage for same-sex couples violated the state constitution. Thanks to that ruling, all Californians enjoyed a fundamental state constitutional right to marry the person they loved, regardless of their race, religion, creed, national origin, gender, sexual orientation or gender identity.
A person's fundamental right to marry, and to have the highest state recognition and protection for their relationship, depended upon their humanity -- and their humanity alone -- not on any external factor as to the class of people to which they could be categorized. Before Proposition 8, every LGBTQI person -- regardless of which letter of the acronym described them -- could marry the person they loved because the state was not in the business of excluding couples from marriage based on who they were or who they loved. The state did not even ask marriage license applicants their gender.
The California Supreme Court's decision was also groundbreaking because it established under our state constitution that lesbian and gay people, just like other groups who have historically faced discrimination, are entitled to the highest degree of protection under the state constitution. State and local laws that treat lesbian and gay Californians differently from everyone else are presumptively unconstitutional and can stand only if the state demonstrates a most compelling reason for the law.
This ruling applies to every way in which state and local governments in California relate to lesbian and gay people, and the court recognized that marriage was just the particular example of discrimination before it. The court held that, under state law, excluding same-sex couples from marriage "marks" lesbian and gay people as "second-class citizens." The same would be true of any law that unjustifiably treats lesbian and gay people differently from everyone else. This aspect of the court's ruling stands today despite Proposition 8 and protects lesbian and gay people if a public school, police department or any other California state or local governmental entity discriminates against them.
This type of heightened constitutional protection under the U.S. Constitution for all lesbian and gay Americans in all aspects of our lives -- including the freedom to marry -- is what plaintiffs Edie Windsor, Jeff Zarrillo, Paul Katami, Sandy Stier and Kris Perry, as well as the president of the United States, the State of California and millions of other people, are fighting for. The Ninth Circuit Court of Appeals stated that "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The [United States] Constitution simply does not allow for 'laws of this sort.'" The lower federal courts have recognized DOMA as an unprecedented exclusion of an entire class of legally married Americans from federal rights and protections.
In the 2003 landmark decision Lawrence v. Texas, which overturned all state laws criminalizing private, physical expressions of love between two people of the same gender, Justice Anthony Kennedy wrote that "the protection of liberty under the [Constitution] has a substantive dimension of fundamental significance in defining the rights of the person." He added that "[h]ad those who drew and ratified the [Constitution] known the components of liberty in its manifold possibilities, they might have been more specific," but "they did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
As our generation now comes before the highest court of the land, we seek fulfillment of the promise that words engraved on the architrave of the Supreme Court building in Washington D.C., "Equal Justice Under Law," apply to us. As we do, we stand shoulder to shoulder with -- and on the shoulders of -- the millions of LGBTQI people who have come out and have built a movement. Although only a handful of attorneys will actually argue the cases before the court, we all will be before the court next Tuesday and Wednesday.
Please visit lighttojustice.org to find events in Washington, D.C., and all 50 states to mark the Supreme Court's historic hearings on DOMA and Proposition 8.
This piece was originally published in the San Francisco Bay Times.