Proposition 8 Battle Just The Beginning For Gay Marriage Rights


None of us quite realized that the passage of Proposition 8 would become such a watershed moment.

My spouse Joanne and I were domestic partners until July 4th, when we finally married under California’s recently approved same-sex marriage law. We’ve been together for 16 years, so it seems like the obvious thing to do, but I must admit that part of me was in it for the legal challenge.

Once we were wed in the Golden State, we could then take on the Defense of Marriage Act, or what I refer to as Bill Clinton’s really big mistake. That act prohibits the federal government from honoring same-sex nuptials, thus putting gay and lesbian couples in quite the awkward position. But, frankly, we’re not sure we’re even married at this point, considering that Proposition 8 overturned the California Supreme Court’s ruling that same-sex couples deserve marriage rights. Regardless, even if we are still married in CA, we have miles to go.

If we’re no longer 2nd class citizens in California, we can’t stop there. We then have to challenge DOMA, because what really matters now is that despite the fact we pay our social security taxes like other good citizens, we still face unique hurdles. For example, if one of us dies, the other, thanks to DOMA, doesn’t get those benefits. And if I buy a house with my own money, I can’t make Joanne a co-owner because I’d have to pay a federal gift tax on anything more than $14,000 a year, while “real” married people can transfer property back and forth with no consequences whatsoever. In short, it is a big deal to be married here in CA, yes, but it’s an even bigger deal to ensure the federal government recognizes that marriage.

The California Supreme Court issued their ruling on May 15th, and you can be sure I read every word, amazed and delighted that the highest court in this state had decided that discrimination against gays and lesbians is as bad as discrimination against blacks or women. Such discrimination, the court said, should be viewed as “suspect” and, to withstand judicial scrutiny, any distinctions between straights and gays would have to be justified by a compelling state interest. The court also mentioned that marriage counts as a fundamental right and that gays and lesbians can’t be deprived of such a right any more than any other group can be.

In the old days, of course, before Loving v. Virginia, blacks and whites could be denied the right to marry. This is just like that – bad. In fact, on June 12, 2007, Mildred Loving issued a rare public statement prepared for delivery on the 40th anniversary of the US Supreme Court’s decision in her case. The concluding paragraphs of her statement moved me very much:

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others – especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

In case you haven’t heard, Proposition 8’s passage has awakened a sleeping giant. Joanne, I, and our allies have gone to protests and marches ever since election day and more and more signs like “Another Hetero Family against (H)8” keep popping up, along with “No more Mr. Nice Gay”, “Where is the Gay Tax Discount?”, “When do I Get to Vote on Your Marriage?” And of course along with all sorts of other creative slogans, peppered with rainbow flags and trinkets.

On Saturday, there were protests at city halls all over the country organized not by polite groups like Equality California, NCLR, the ACLU and NO on 8, but instead via the Internet, on YouTube and countless other virtual outposts. Many of the kids that got involved in the election have taken up the cause, which has been a bit muddied by our new president-elect. Prior to Election Day, Obama said he opposed Prop.8 because the courts should decide constitutional rights. But, all of a sudden, on the morning of Nov. 4th, as I was heading out to vote, in came a robo-call, with Obama loudly proclaiming that his Christian faith dictates that marriage should be between a man and a woman. That was the message that the black churches were spreading, and that was certainly a part of the reason for Prop. 8’s defeat: 70% of African Americans reportedly voted for 8.

The real truth, as we all probably know by now, is that the religious right decided to use Proposition 8 to break down the separation of church and state. Since it’s passage, the “Yes on 8” people have invaded our protests, brandishing signs quoting religious homilies. Actually, not a single person that I have seen or heard has tried to defend Proposition 8 on anything other than religious grounds. I guess the fact they think our marriages will destroy their families makes sense to some of them.

In the midst of all the protests, a legal challenge has been filed in the California Supreme Court arguing that Proposition 8 should be overturned because it’s really a constitutional revision that requires a 2/3 vote of the legislature before it goes to the people for their vote. Clearly it’s a revision, because we had been granted full and equal rights by the court and then along came Prop. 8 that carved out specific rights (from the rights we’d just obtained), namely the right to marry, that the religious right doesn’t think we deserve.

If, for some horrible reason, we lose in state court, the next step would be to go to federal court, and argue that Prop. 8 violates the equal protection and due process clauses of the 14th amendment to the U.S. Constitution because the state (here via a constitutional amendment) not only has denied us equal protection, but has also stripped us of the fundamental right to marry. I really hope it doesn’t come to that but, if it does, I can’t wait to read what Justice Ginsburg has to say, especially since I sat next to her 35 years ago at the U.S. Supreme Court’s counsel table as she argued that discrimination against women is suspect, subject to the highest level of scrutiny and that there has to be a compelling state interest (the term used by the California Supreme Court in protecting gays and lesbians) to uphold any discrimination against these protected groups, in both of which I happen to belong.

Editor’s Note: Brenda Feigen is Principal in her firm, Feigen Law Group,  where she practices anti-discrimination and civil rights, family, environmental, and intellectual property law. A graduate of Harvard Law School, she co-founded Ms. Magazine with Gloria Steinem and directed with (now Justice) Ruth Bader Ginsburg the Women’s Rights Project of the ACLU. Her memoir, Not One of the Boys: Living Life as a Feminist, was published by Alfred A. Knopf in 2000. She moved from Manhattan to Los Angeles to produce her first feature film and currently lives there with Joanne Parrent, her longtime partner and spouse.  

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