This is the second in a five-part series on the “California Marriage Protection Act,” Proposition 8 on the November 2008 ballot.
California’s Proposition 8 seeks to amend the state Constitution by adding a section which would read: Only marriage between a man and a woman is valid or recognized in California.
Currently, same-sex marriages are legal in the State of California. They were made legal after the organized and individual struggles of many people found some resolution in the courts. On May 15, 2008, in a decision relating to a number of cases consolidated before the State Supreme Court, the justices decided by a 4-3 decision that the Constitution of California required people to be treated equally with regard to the “right to marriage.” The majority decision reflected the widespread rejection of the premise “that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.”
Even before this court decision, California had made same-sex unions legal via the designation “domestic partnership.” While this legal designation provided same-sex couples numerous benefits and responsibilities associated with legally-defined “marriage,” it did not do so fully. There remained a legal difference (as well as a social difference) between “marriage” and “domestic partnership.” This difference, this lack of equality, proved the deciding factor for the court. It should provide the same for us as a society.
To oppose the decision of the court, and seek to reverse it via the method of a voter initiative, is to stand against the principle of equality as embedded in the laws and culture of the United States. Furthermore, it is an opposition that can not, in the long run, succeed.
As a historian, I’ve always been kind of irked by the ubiquitous tactic of the radical right labeling all court decisions they disagree with as the product of an “activist court.” This is convenient, to be sure, but it is also so hypocritical. The political system in which we live and enjoy our rights is one reliant upon the principle of judicial review. We trust the courts to be the arbiter of what is and is not in line with the constitutions of our states and our nation. This role has been played by the courts for almost as long as there has been a United States, and certainly for as long as there has been a State of California. A consequence of it is a periodic change in the law that is expansive. To object to the court’s processes by labeling a some changes as “activist” is to really object to the role they play fundamentally. It assumes the court should do nothing because they can never make a decision with an impact on the law or society, or that they can make no decision that is not popular or driven by the consensus of the people
Of course, courts are not infallible. Segregation and other forms of systemic inequality were legally protected by the same judicial system now upholding same-sex couple’s right to marry. I am not arguing that since the California courts decided in favor of same-sex marriage we must support the issue. I am far more concerned with the ways a court makes its decisions, the principles it applies and uses to frame it decisions. In this case, the overwhelming force in the court’s decision was the principle of “equality” and non-discrimination. That principle–when protected by the courts and reflected in its decisions–should also serve as a suggestion to us that they succeeded in their Constitutionally-dictated role.
Equality is fundamental to our society. We are a culture which firmly believes in the obligation of the state to treat each of us the same way as the other. Our legal history has been, in part, one of an expansion of the notion of equality. Most notably in the realm of race, our judicial system has played a primary role in communicating an evolving sense of what equality means in our nation, of who is deserving of it, and how it can go from an idea to a lived reality.
Equality has also occupied a fundamental place in the history of struggles for social justice. In almost every way, movements of people seeking a more just world have been the pretext of any court decision expanding our notion of equality. Perhaps this nurtures the “activist court” critique, but it also speaks volumes about the court system being something of a follower more than a leader in the crusade for justice and equality. As a cornerstone of movements for justice, equality has also been expansive and interconnected. The struggle for legal equality of Blacks and Whites is directly connected to later struggles for educational equality for Asians and Latinos, to marriage equality for all races, to gender equality in voting, and so on.
This interconnection makes the struggle for gay, lesbian, and transgender equality intimately part of all struggles for equality. With respect to rights, a society can not thrive for some as it flounders for others. Much like a fire, which must be fully contained if it is to cease posing a threat, injustice must be defeated everywhere if it can exist anywhere. We are all diminished in a context of inequality, as we would be with the passage of Prop. 8, whether we are within or without the LGBT community
The thirst for freedom from discrimination and for real equality is something that can not be denied, historically speaking. As Martin Luther King said in his Nobel Peace Prize address in 1964, “Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself.” The condition of the denial of freedom and equality helps to nurture that thirst, as it demands mass struggle to quench it.
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