Window into Ken Starr's California: Conceived in bigotry and dedicated to the proposition that all straight people are created equal.
So it's been a busy couple days in the neighborhood! After spending most of Thursday viewing and then "digesting" the Supreme Court oral arguments on Prop 8 both Friday and Saturday were full-to-the-brim with the All Saints Church Vestry/Staff Conference and then Sunday was ... well, Sunday.
So here I am ... back with my notes from Thursday trying to make some sense of what I saw and heard and thought:
#1 -- This is NOT an "activist court."
In some ways it is a very conservative court -- which is why the May 2008 decision on marriage equality was so extraordinary.
#2 -- It is very clear that what the petitioners (that would be OUR side) were asking the court to do is what I'm told legal people call a "first impression" thing -- and so it is a huge uphill battle.
#3 -- That said, the petitioners made exactly the arguments they needed to make:
- This is not just about "gay marriage" but about whether a bare majority can take away fundamental rights from a vulnerable minority.
- The people absolutely have a right to amend the constitution in California but taking away a fundamental right is not an amendment but a revision -- and that (according to how California law works) is matter for the State Legislature not a ballot initiative.
Ken Starr, who argued for the interveners (that would be the OTHER side) based his argument on the sovereignty of the people. The argument of whether or not Prop 8 constitutes an amendment or a revision seems to rise and fall on the point that in order for it to be a revision "there must be a far reaching change in the structure of government."
Starr, however, argued that the people have the right to "act unwisely in the initiative process" EVEN saying "Yes" when the Chief Justice asked if that meant "the people" could -- through the initiative process -- remove rights like freedom of speech.
(Some of us think that if abandoning the foundational value of constitutional democracy that the rights of minority populations are protected by the courts from the tyranny of the majority isn't "far reaching change" then we don't want to see "far reaching change.")
Honest. Couldn't make that up. Check it out on this You Tube Clip if you don't believe me.
"Yes" to abandoning a core, foundational identity of this nation as a constitutional democracy where the rights of minorites are protected from the tyranny of the majority and First Amendment Rights are up for grabs.
WOW! That's what we're up against, folks. And if you have been working on inclusion issues within the Episcopal Church you may be experiencing some "deja vu all over again."
Both our nation and our church claim a long history of a representative polity that depends on balance and separation of powers. Or we did the last time I checked. And both are under attack by those who want to use majority power to exclude minority members.
When I listened to Ken Starr, what I heard WAS "a far reaching change in the structure of government" -- it was nothing less than changing these United States of America into "one nation, conceived in bigotry and dedicated to the proposition that all straight people are created equal."
Californians deserve better. And so does our Constitution!
What the petitioners asked in Thursday's arguments was for the California Supreme Court to be a headlight rather than a tail light on this issue of marriage equality -- not just as a matter of justice for gay and lesbian couples and their familes but as a matter of precident for ALL minority populations who count on equal protection to protect them. And whether or not this Court is willing to rise to that challenge remains to be seen.
But here -- in a story from Mel White -- is why I think it's so crucial that either they do or WE do:
I love the Bible. I read God’s Word in it and hear God’s Word through it. But the United States is not a nation governed by the Bible. Our nation is governed by the Constitution and the Bill of Rights. Our laws were created to protect an individual’s right to disagree. If the Bible (or someone’s view of the Bible) replaces the Constitution as the law of the land, we undermine the great foundation upon which this country was built.
When I was a guest on a talk show in Seattle, I saw what might happen to me and to millions like me if a genuine literalist gained political power over this country. The other guest on the show was an independent Presbyterian pastor. When I told him that I was gay, he said without hesitation, “Then you should be killed.”
A Christian brother sentenced me to death, guided only by his literal
understanding of Leviticus 20:13.
I asked him, “Who should do the killing, you church folk?” He answered, “No, that’s the civil authorities’ job. That’s why we need to elect more good men of God into government.”
I sat there in stunned silence, until he added, “I know it must be hard for you to hear it, Dr. White—but God said it first and it’s our job to obey.”
I hope we can agree that all of us must stand together against those who would replace the Constitution with biblical law. That’s why, when I lecture on a university campus, I carry a Bible in one pocket and a Constitution in the other.
Mel should be able to count on the Constitution to protect him. And so should we.
I don't actually have a crystal ball, but I had plenty of folks on Thursday asking me to look into one, anwway.
The question I got from a Reuter's reporter after the oral arguments were completed was "Are you optimistic?"
I answered, "Always. Martin Luther King, Jr. famously said that the arc of history is long but it bends toward justice. So I am ALWAYS a long term optimist ... and usually a short term realist."
Whatever happens with the California Court decision, the most important thing that happened on Thursday was the reframing of the debate going forward -- driving home the reality that what Proposition 8 means is that ANY vulnerable minorityin California is now subject to a bare majority of voters in any particular election taking away any one of their fundamental rights through an initiative process.
During the rebuttal period of the oral arguments, one of the petitioning attorneys made this argument: What if 51% of California voters should decide that only men can be appointed as a Supreme Court Justices in California? Equally qualified women could be appointed to serve on the bench with the same rights and responsibilities but would be called "Commissioners" -- in order to preserve the "traditional judiciary."
And during the press conference the day before Supreme Court hearing, the local head of the Southern Christian Leadership Conference made this argument: Make no mistake about it -- if in 1954 the voters had been able by an initiative process to vote away Brown v. Board of Education, they would have done it and our schools might still be segregated.
At the end of the day, Californians will have to decide what kind of California they want to live in. The arguments on Thursday, March 5 before the California Supreme Court may not end up convincing the California Court to be prophetic -- but they may serve to convince the California voters that the next rights that will be up for auction may be theirs ... and that living in a state with gay marriage is preferable to living in a state without equal protection.