For Better or for Worse: A legal expert discusses gay marriage
By: Gay.com
3.5.2009
As the California Supreme Court prepares to hear arguments on a slew of legal challenges to Prop 8 -- the gay marriage ban passed by voters in November of last year -- we decided to ask Lambda Legal's Marriage Project Director, Jenny Pizer, about the history of California's marriage equality struggle, the challenges of arguing before the Supreme Court in the wake of the election, and whether she can predict what the Court will rule.
Can you give us a quick history lesson on the same-sex-marriage struggle in California?
The work in California started back in the early 1990s in terms of community organizing around marriage. From '96 to '99 there were fights in the state legislature, when [then state senator] Pete Knight was trying to change our family code to deny respect to couples' marriages from other places, but he kept failing. He got stopped in the legislature three years in a row. He then brought Proposition 22 to the voters in March of 2000, and the initiative statute was passed to deny respect to [same-sex] marriages from other states.
In February of 2004, [San Francisco] Mayor Gavin Newsom ordered licenses to be issued to same-sex couples, so from February to March of 2004 [gay] couples started getting married in San Francisco, until the marriages were nullified by the California Supreme Court [which said the mayor didn't have the authority].
That sparked litigation in February of 2004 on behalf of [same-sex] couples saying, "Hey -- It's our Constitution too, and we affirmatively challenge the state to explain why our rights are being violated in this way." And that's the litigation that culminated in the great crescendo of May 2008 -- when the Court said, "Yes, couples -- the state has been violating your constitutional rights. The state has to issue licenses to you on the same terms that it issues licenses to heterosexual couples."
And so that ruling in May was the result of four years of litigation on behalf of [same-sex] couples. So same-sex couples started marrying in June of that year.
Now, during those four years of litigation, right-wing political groups that wanted to maintain discrimination in California were trying repeatedly to put constitutional amendment ballot measures to the voters. They tried in 2005 but their measure went down in flames. In 2006, two different far-right groups tried again. They got signature gatherers to go out, but they couldn't raise enough money and they failed again.
The reality was that, in California, there was not public desire to discriminate against gay people. These groups tried to tap into some sort of anti-gay reservoir that just wasn't there, so they just didn't succeed.
In the spring of 2008 these groups were out there again, but they couldn't get enough signatures to qualify. So they tried for November.
What changed was they got a lot of out-of-state money to pay signature gatherers. There was quite a good campaign from the [marriage-equality side] to encourage people not to sign these petitions, and it almost succeeded, but the proponents of what turned out to be Proposition 8 succeeded in getting just barely enough to qualify for the ballot.
So when the word was out that they had qualified, we filed suit in the [state] Supreme Court making arguments much like the arguments we're making now, where we're saying to the Court, "Look, these folks used the wrong procedure to try to bring this to voters, it's not the kind of measure that can be done through an initiative, and you should not let it go to the voters, because it's going to be divisive and expensive and it's improper, and even if they succeed it's not going to be valid. "
The Supreme Court didn't agree to hear our arguments at that time. They could have given a reason, but they generally don't. It's fairly common, -- in every election cycle, there's a bunch of ballot measures and often there are challenges to them, and often the Supreme Court declines to hear them because there's only this little window between when the measure qualifies and when the papers have to go to the state printer for the ballot, and placed before the Court are some complicated legal questions, and it would be hard for the Court to decide within that small window.
So we had to have this hideously expensive, divisive measure on the ballot, and the voters narrowly approved it, and so then we made again the legal arguments, and this time the court has agreed to hear them, and that's where we are now.
What are your specific challenges in bringing your argument before the Court?
This is a type of legal problem that doesn't arise very often, so there's not a lot of relevant legal precedent. When we were engaged in the litigation about whether we should have the right to marry, there were scores and scores -- if not hundreds -- of relevant legal cases that we would argue about. In this area, it's a different legal question, and there's just a healthy handful of cases, and that's all -- because these are issues that don't come up very often. The legal question now is about the process of changing the California Constitution.
A lot of the Constitution's provisions are written in broad strokes, and the Courts then have to construe those terms as different questions arise over time, and different things come up generation to generation, and the Courts search to understand how the terms should be understood based on contemporary problems. So our biggest challenge is that we have these important concepts of "amendment" vs. "revision." A revision is a change that goes to the structure of a government or concerns core principles of the Constitution. Those are very important concepts, and in fact it's a rare and alarming suggestion that Prop 8 makes -- that a fundamental Constitutional right -- among the most important individual rights -- the right to marry, should be eliminated for just one group that's been historically vulnerable and recognized by the Supreme Court as historically subjected to unjustified discrimination.
We're arguing that [that gay and lesbian people] are part of a "suspect class" -- which means legally we're a group that has often been the basis of invalid, inappropriate exclusion based on prejudice and bias and we don't have the size and power to defend ourselves.
We're arguing that the courts have a special responsibility to prevent that, to strike down laws that are based on prejudice and bias and that prevent equal treatment. Also, the Court is being asked a question with implications that go far beyond marriage and gay and lesbian couples -- a question about what kind of changes to the constitution can be pursued using the initiative power.
The power of the initiative in California is important, and the Courts are respectful of its power. At the same time, the power of the initiative only exists within Constitutional limits, and if it's used by a majority to bully a minority group, then it's legally incorrect and essentially lawless, and the Courts have a responsibility to prevent that from happening. There's enormous attention on this litigation because the stakes are very high for other groups who could well be targeted by initiatives that could take away their rights if Prop 8 is allowed to stand.
How optimistic are you now that the Court will rule in favor of gay marriage?
Well, I'm cautious about ever venturing to predict much about what courts will do. I'm confident we're right with our arguments, and that the arguments are being presented in a clear and compelling way, and we're being joined in this effort by a great many highly regarded groups and institutions that represent different parts of society. That's very exciting and gratifying. And as litigation proceeds even more support is coming out of the woodwork. So there are many positive signs. And this is a highly respected Bench that's known to be independent and thoughtful, but I stop short of predicting the ultimate outcome. That's up to the members of the Court.
