commentary
Beyond the Briefs
Proposition 8 is just a predictable backlash
Published Thursday, 04-Dec-2008 in issue 1093
While the passage of Proposition 8 might tempt us to feel defeated, the truth is it’s a mere knee jerk in the steady strides we’ve made over the last 30 years.
The recent election of two openly gay city councilmembers is one indication of our progress, as is the release of Milk, starring Sean Penn in the role of the late San Francisco Supervisor and gay activist Harvey Milk. So before you give Proposition 8 more than it’s due, let’s view the big picture by taking a trip down memory lane.
The first stop in our retrospective is 1975, the year California decriminalized consensual sex between adults of the same sex. It was an important accomplishment, because, at the time, GLBT teachers were being fired under the rubric of engaging in non-procreative sex, which was then illegal.
But three years later, in 1978, the year after Anita Bryant began making headlines with her “Save Our Children” campaign, the anti-gay patrol tried again. It championed the Briggs Initiative, an attempt to ban GLBT teachers from working in public schools.
Needless to say, we were outraged by the affront to our basic civil rights. So, led by Milk, we galvanized ourselves to oppose the measure and we defeated it.
It was a resounding victory, both because it showed us we could organize and because we garnered overwhelming support from people beyond our own community, including from then-Gov. Ronald Reagan.
But although this would ultimately pave the way for further progress, that was not immediately apparent. First there was a backlash.
Not only was Milk murdered, there was also the mass hysteria that surrounded the onset of AIDS. Known at the time as the “gay flu,” the epidemic added fear to the loathing already emanating from the anti-gay contingent, who viewed all gay men as “carriers” of the disease.
[Proposition 8 is] merely the flailing of a group who, like chickens with their heads cut off, spasmodically flex their untenable beliefs despite the reality of cultural evolution.
Yet for each blow, we took two steps forward:
In 1985, California Western School of Law professors Scott Ehrlich and Penn Lerblance drafted an AIDS-Anti-Discrimination ordinance. Roger Hedgecock, then mayor, championed the measure.
In 1987, California Western hired professor Barbara Cox, who championed the cause of “domestic partners” living in “non-traditional” families.
In 1992, the San Diego City Council passed the “Human Dignity Ordinance,” banning discrimination on the basis of sexual orientation.
Also in 1992, when Colorado passed a law prohibiting cities from enacting laws protecting gays from bias, the U.S. Supreme Court ruled 5-4 that singling out gays for discrimination violated the Constitution.
In 2003, the U.S. Supreme Court overruled Bowers v. Hardwick, a United States Supreme Court decision upholding the constitutionality of a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults.
The California Supreme Court’s decision in May of this year to strike down California’s prohibition against same-sex marriage signaled the next inevitable step in our community’s progress towards equal rights. Proposition 8 is but a predictable backlash. Like the repercussions our community sustained after we defeated Briggs, it will be short lived, because it’s merely the flailing of a group who, like chickens with their heads cut off, spasmodically flex their untenable beliefs despite the reality of cultural evolution.
Progress is just a matter of time. A court challenge to Proposition 8 is pending.
Robert DeKoven is a professor at California Western School of Law.
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