Why ‘Milk’ Matters: The Proposition 8 Battle Continues



Editor’s Note: Brenda Feigen is Counsel to Kenoff & Machtinger, LLP, where she practices anti-discrimination and entertainment 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 maybe spouse.

Exactly 30 years ago, San Francisco’s openly gay supervisor, Harvey Milk, successfully led the fight against that year’s version of our Proposition H(8), Proposition 6, that would have prohibited gays and lesbians from teaching in California’s public schools. The issue now, of course, is our right to marry, which Prop. H(8) eliminated this past election day.

At first, I was happy to hear that the California Supreme Court last week decided to hear arguments on whether Proposition 8 should be overturned. Then, I thought about it a bit longer. The justices didn’t say whether the 18,000 of us who married during that magical period between June 16 and November 4 still qualified as married. But they did say no other same-sex couples can marry in the Golden State until they decide – sometime this Spring – whether or not to overturn H(8). And, frankly, it makes me really mad that I don’t know whether my spouse and I are, in fact, still married. If we’re not, we hang in some legal limbo. And nobody – gay or straight – wants that.

Brenda and her spouse, Joanne, just before they received their marriage license in California.

Aside from the emotional aspects of the decision, I’m also angry because, as I’ve mentioned before, I had hoped our marriage would help us to challenge the Defense of Marriage Act. You know, the act Bill Clinton signed that guarantees that the federal government need not recognize same-sex, “non-traditional” marriage. If I were married in California, I could go against the federal government for depriving us of our social security benefits, the right to transfer property to each other without being taxed and a host of other rights. In fact, there are over 2,000 rights that married straight couples have that we don’t, even if we are eventually deemed really married legally in California. Those benefits include the right to transfer property. Heterosexual couples can transfer money, houses or whatever to each other with no gift tax liability, but not same-sex couples. Nor can we guarantee that our widow or widower will inherit the inheritance that heterosexual couples may take for granted. We know, for sure right now, that we don’t get any benefits earned by our “spouse” when that spouse dies. Those hard-earned dollars go to the government – the same government that refuses to recognize our relationships. Does that sound fair to you?

So, as these emotions swirl, I’ve also been reading about “Milk,” the Sean Penn-starring bio-pic of Harvey Milk. For the uninitiated – and those not reading Variety – Milk was San Francisco’s openly gay city supervisor and was one of the ‘70s great gay activists until he was brutally shot down on the steps of City Hall. Ironically, it opens tomorrow; it’s supposed to be quite the movie, and worth a view or two, and, coincidentally, has become a central player in the Proposition H(8) battle. Harvey Milk fought vociferously for gay rights, yet the CEO of one of the film’s exhibitors, Cinemark’s Alan Stock, helped fund Proposition 8 — donating $9,999, to be exact. Gays and lesbians are not amused, and have helped organize vigils and protests against the company. And, as another twist of fate, one of the tactics is telling people to wait to go see “Milk,” which opens tomorrow, until December 5. Rather than patronizing the Cinemark chain, activists of all ilks are instructing allies to see the flick at alternative theaters. We want “Milk” to break the top three that weekend, but we surely don’t want Mr. Stock and his comrades raking in our queer dollars that should be spent encouraging supportive companies to keep fighting for and with us!

The movement may sound small, but this may just be the tip of the iceberg, starting with inactions against apparently homophobic companies and business folk. For example: Richard Raddon, L.A. Film Festival Director, has faced heavy criticism in Hollywood for donating to the Yes on H(8) campaign. Meanwhile, Scott Eckern, director of Sacramento’s California Musical Theatre, resigned when activists informed the world that he, too, had contributed to the Yes on H(8) campaign. One of the most prominent foes came in the form of prominent theater artist Marc Shaiman, the composer who has appeared in “Hairspray,” which, in case you couldn’t guess, has a large following among America’s lavender set.

I was also delighted to read that the writers of “Milk,” Lance Black and Cleve Jones, published a manifesto in the San Francisco Chronicle last week, in which they called on President-elect Obama to support comprehensive federal legislation guaranteeing gay rights, including the right to marry. Though I know they may mean well, the duo may also be barking up the wrong tree – or the right tree at the wrong time. Barack Obama – citing his faith – has defined marriage as being between one man and one woman, although he did meekly say somewhere that he opposed Prop. 8, because the matter was for the courts to decide.

As for me, I’d like to see Obama, as soon as he takes office, call for the repeal of both DOMA and “Don’t Ask; Don’t Tell,” another Clinton-era policy that prohibits openly gay Americans from serving in our military service. Despite his campaign promises, Obama has recently said he will have to wait on Don’t Ask, Don’t Tell. In my opinion, Obama has no excuse for not multitasking. Why can’t this man, who could turn out to be one of the greatest leaders we’ve seen in decades, help end the Iraq War, stabilize our economy and ensure equal rights for everyone in the United States of America? It certainly can’t take that much energy, nor will it cost the government any more money. In fact, such decisions will both boost the economy and our armed services!

Anyway, back to the real issue. The court has delayed my right to demand fairness. I no longer know if we’re married, if we have standing to sue the federal government for the really big stuff – from the federal government. Worse, I don’t even know what will ensue if the court rules for us – that is, declares that Prop. 8 should have come in the form of a constitutional revision, rather than an amendment and, therefore, has no legal significance. The H(8)ers are already threatening to put another measure on the ballot to take our rights away in 2010. They’re also sharpening their claws to use a recall and oust California’s pro-equality Supreme Court Justices. This entire debacle makes me absolutely furious! Can you imagine this happening to straight couples? I can’t.

Yes, things are bad, but there’s some good news: a whole generation of young gays and lesbians have been galvanized. One group, the “Courage Campaign,” has hired two community organizers this past week. Meanwhile, one part of the campaign is called “Shame on 8,” and yet another, “jointheimpact.com,” has joined the fight. And word has it that young gay leaders — and we sure need more of those! — have been holding meetings and building online networks on sites like Facebook, YouTube and MySpace.

As for me, I’m planning to do what I always do: fight for my — nay, our — equal rights on all fronts, even if respectable organizations like Lambda Legal, NCLR, the ACLU and others caution us to tread carefully, which sounds a lot like what my mother would have implored us to do: “Act like ladies and gentlemen and stop trying to rush things. Just be patient.”

But, honestly, I’m just plain sick and tired of the second-class status we have endured all these years. I have no intention of patiently waiting for rights to be handed to us on a platter. I identify completely with Harvey Milk, who 30 years ago wouldn’t settle for crumbs. He was one of the leaders of the successful campaign against Proposition 6, a 1978 ballot initiative that would have prohibited gays and lesbians from teaching in California public schools. As he shouted at a rally against Proposition 6: “If this thing passes, fight the hell back!” Thanks, Harvey. That’s finally what we’re doing.

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