Wednesday, June 26, 2013

Two Giant Steps Forward for Marriage Equality

June 26, 2013 will be remembered as the day this nation took two giant steps forward toward making liberty and justice for all not just a pledge but a reality for LGBT Americans.

By affirming the Federal District Court ruling that found California's Prop 8 unconstitutional and by striking down Section 3 of DOMA the Supreme Court made history with rulings that told all loving and committed couples who marry that they deserve equal legal respect and treatment.

Sadly, those two steps forward came just a day after the same Supreme Court took one step back by striking down a central part of the Voting Rights Act -- and so our delight in the movement forward on marriage equality is tempered by our distress at the dismantling of voter rights protections.

Nevertheless, as a California priest and pastor I rejoice that my church can now offer both equal blessing and equal protection to the couples who come to us for marriage. As an American citizen I am proud that my country is continuing to evolve toward that "more perfect union" where liberty and justice applies to all - not just some - Americans. And as an activist committed to the audacious goal of full equality for LGBT Americans I am celebrating today's rulings as incremental victories toward that not-yet "mission accomplished" goal. We did not get the whole enchilada - but there is enough guacamole for me.

Of course I would have loved to see the Supreme Court issue a broad ruling on marriage reflecting what the majority of Americans already know: When we all can share in the freedom to marry, it makes our families stronger, it makes our communities stronger and it makes our nation stronger. And while today's decisions by the Court fell short of that broad ruling, they inarguably moved us down the road toward the day when marriage discrimination will end up where it belongs: in the dustbin of history.

Overturning Prop 8 is a great day for California and dumping Section 3 of DOMA is a huge victory for married couples in the now 13 states (plus the District of Columbia) with marriage equality. For thousands of married lesbian and gay couples, today's ruling means that they can better protect one another and their children because they will no longer be discriminated against in federal policies intended to support families, like inheritance laws and family and medical leave.

At the same time, there are still 37 states that continue to treat gay and lesbian citizens and their children as unequal and second-class citizens.

So today we celebrate with those who now have the freedom to marry. We give thanks for all who have labored so long and hard to bring us to this day of decision that puts us further down the road toward full equality.

We give thanks for a Protect Marriage Movement dedicated to protecting all marriages and a Family Values coalition committed to valuing all families. And we recognize that there are miles to go before we rest -- before that arc of history we are told bends toward justice reaches the goal of equal justice for all LGBT Americans.

We will not rest while millions of others across the country are still treated as second-class citizens. We will not claim "mission accomplished" until liberty and justice for all really means "all." And we will not settle for anything less than the proposition that all people are created equal as we continue to work to achieve the freedom to marry -- and to vote -- for all Americans.


RonF said...

Hm. You seem to have made a factual error, Susan. You say:

By affirming the Federal District Court ruling that found California's Prop 8 unconstitutional

That seems to be in error. They didn't affirm it. If you read the text of the ruling, you'll see that the ruling of the Ninth District Court of Appeals was vacated and remanded. That doesn't mean it was left in effect. That means it was cancelled, and the Ninth District has been told to reconsider the matter.

The case of Prop. 8 was not decided on the merits. It was decided that the appellants did not have standing to bring suit. Because of that, and because the ruling of the Ninth Circuit was vacated, what I've seen is that as of this particular moment, Prop. 8 is the law in California until the Ninth Circuit rules again. According to, the California State Constitution says:

An administrative agency ... has no power:
(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;

(b) To declare a statute unconstitutional;

(c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.

As of today, there is no appellate opinion (meaning an opinion issued by a court of appeals) against Prop 8. The Supreme Court refused to issue one, and threw out the only other one (the Ninth Circuit's). There is only a trial court opinion. So every agency in California is legally bound to regard Prop 8 as binding law.

Since no one who wants to defend Prop 8 has standing to appeal rulings on it to the Ninth Circuit, there will never be such an opinion in the federal court system. So the only way to get an appellate opinion would be in the California state court system. So someone would have to file a lawsuit regarding Prop 8, and then appeal it to a California court of appeals and then maybe to the California Supreme Court. Only when one of those courts hold Prop 8 unconstitutional can the public officials in that state regard it as stricken from the books.

That litigation could take years.

RonF said...

And while this isn't on the topic of this post, people in California - and 25 other states - should think carefully about what the Supreme Court did with regards to citizen initiatives in general.

In order to provide a check on government power, there is a mechanism in these states for the citizens to directly change the State constitution. The idea is that the ultimate source of power resides in the people, and if the government frustrates their ends they can supercede the government. It's not easy, but the people are thus given a way to exercise their ultimate authority and to put limits on government action even if the government itself opposes them.

But the Supreme Court has nullified that. Let's say that the California legislature, with numerous representatives and a Governor that get campaign contributions from the food industry, refuses to pass a law that requires labelling of all foods derived from plants developed using GMO techniques or animals that are fed hormones and antibiotics. The people pass an initiative requiring this. The Governor refuses to enforce it on the basis that it's his/her opinion that this is an unconstitutional constraint on the food producers' rights. The people appeal to the courts - but the Supreme Court has just ruled that they have no standing to do so.

Citizen initiatives have just been tossed out as a check on government. The ultimate authority is no longer the people, it's the Governor of the State.

uffda51 said...

Citizen initiatives have NOT just been tossed out as a check on government. One particular initiative, driven by religious animus, funded by out-of-state money, and intended to deprive a clearly identified group of people of their civil rights, has been rejected. Those who wish to appeal the decision were ruled to have no standing to do so because they could not prove that they were injured.

The initiative process lives but cannot be used to deprive LBGT persons of the right to marry, anymore than Texas voters can repeal the right of women to vote or Michigan voters can deny its citizens to worship in the church of their choice.

Happy Fourth of July!