commentary
Beyond the Briefs
Thank you, Proposition ‘Hate’!
Published Thursday, 20-Nov-2008 in issue 1091
There’s a platinum lining in the passage of Proposition “Hate.” It’s galvanizing our community: GLBT people and allies are now protesting across the country in support of same-sex marriage.
What passed in California as a measure to prohibit same-sex couples from marrying will now propel the entire nation into recognizing equal rights for all.
And it’s at the federal level that we now need to focus our efforts. We need to convince the Democratic Congress to repeal the Defense of Marriage Act and require all states to recognize same-sex marriage or lose federal funding.
Forget about wresting our rights state by state. Let’s eliminate segregation in one fell swoop.
Forget, too, the incomprehension we feel about the black community’s support of Proposition “Hate.” Our protests should not focus on that. It’s a shame that, although the National Association for the Advancement of Colored People of California did its best to persuade every black legislator in this state to vote in favor of same-sex marriage, the black community nevertheless opted to join forces with groups such as the Mormons whose agenda includes disenfranchising them. But, while we can have compassion for the black community’s having been duped by the religious right, it’s not our issue. We must not divert our energy from where we need to put it most – lobbying at the federal level for change.
The firestorm that Proposition 8 has sparked across the country will make judges and legislators take notice. We have an unprecedented opportunity, now that the Democrats have control, to secure same-sex marriage rights, hate-crimes legislation, and equalize treatment of GLBT military.
Forget about wresting our rights state by state. Let’s eliminate segregation in one fell swoop.
View the passage of Proposition “Hate” in California as a temporary setback.
Numerous suits have been filed with the California Supreme Court to stay the measure until such time as the court sorts through the legal morass. The court must address whether the voters revised the California Constitution by taking away a fundamental right (equal protection for same-sex couples). This requires a two-thirds vote of the Legislature and a similar margin of victory on the ballot by the voters.
There should be at least four votes for that view, and it’s possible that the entire Court will rule this way, even though three justices originally disagreed with the decision in In re Marriages.
Although the right wing has already threatened to “recall” any justice who rules this way and “overturns the will of the voters,” this would be futile, which the right wing knows. These Republican justices, even if recalled, would be replaced by justices who are pro-gay and pro-choice. Six of the current seven were appointed by Republican “pro choice” governors
In short, same-sex marriage is inevitable because the shock wave created when our nation’s most progressive state took a back step is reverberating throughout the state and country. Ultimately, it will catalyze GLBT rights not just here in California but throughout the nation.
Get ready. We’re goin’ platinum.
Robert DeKoven is a professor at California Western School of Law.
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