Avenging Proposition 8

I remember May 26, 2009 quite vividly. My friend Ben and I took the subway into San Francisco. Protest signs in hand, we made our way to the steps of the California Supreme Court building, joining the throngs of people who had been waiting there all morning — waiting, eagerly, for the announcement of the decision of Strauss v. Horton, the case that would decide the fate of the well-known and highly controversial Proposition 8.

To say the anticipation was intense would be an understatement. There was a distinct feeling of cautious optimism, a sort of jitteriness, but it was muted, reserved. Everyone was hoping for some grandiose announcement in our favor. Instead, we were handed the decision in neatly bound packets, quietly distributed by a few officials at the top of the steps of the building. It was as if the court was embarrassed of itself.

The decision was 8-1, ruling in favor of upholding the proposition. Nearly unanimous decisions on issues as controversial as gay marriage are not often reached: this was, undoubtedly, a crushing defeat. Proposition 8 still stood. The short window in which gays and lesbians could marry in California was now closed for good.

As an advocate for gay rights, it was a terrible blow, but I can’t pretend to imagine what it was like to be next to the person you loved, knowing full well that in the eyes of the law your love was considered inferior. Many cried, some screamed in frustration. A protest ensued in which we blocked off an intersection and rallied in defiance, but we all knew it was nothing more than a symbolic gesture. The police came and (to their credit) rather gently made the crowd disperse. I went home.

As it was, the passage of Prop 8 made election night in November 2008 bittersweet. Strauss v. Horton seemed like the last remaining glimmer of hope. The whole gay marriage movement had been unfairly mired in a mass campaign of misinformation peddled by the proponents of Prop 8. Surely, we thought, a body as clear-minded as the Supreme Court of the most populous state in the Union — the same court that, a year earlier, had ruled the gay marriage ban unconstitutional — would vote in our favor. When the California Supreme Court announced, then, that it was letting the proposition stand, it seemed like the final nail in the coffin.

Or so I thought.

The passage of Prop 8 may have been a huge disappointment, but I will say this: there is one hell of a silver lining. And the proponents of Prop 8 don’t like it.

First, some background: The California Constitution is notorious for its length, which is a direct product of how easy it is to change. Unlike most constitutions, which require a fairly high threshold for alteration, the California Constitution offers two avenues by which to do so, one easier than the other. First, there are amendments, which require nothing more than a small amount of signatories (eight percent of voters in the previous gubernatorial election) followed by a simple majority vote. Second, there are revisions, which require a two-thirds majority vote in both chambers, followed by a popular vote. This distinction might be useful if it weren’t entirely subjective — the only thing differentiating “revisions” from “amendments” is that revisions offer “substantial change” to the constitution.

So why is any of this important? Proposition 8 was passed as an amendment, after gathering signatures and earning a simple majority at the polls. The court battle, then, was over whether or not Prop 8 should be considered an “amendment” (in which case it would stand) or a “revision” (in which case it would have to pass a higher threshold). Had the courts nullified Prop 8, the only precedent to emerge from the trial would have dealt with that distinction, and would have done nothing to address the inherent contradiction to equal protection that lies at the heart of the gay marriage debate. Sure, it would have been great legal precedent in California, but only in California.

Enter our silver lining.

The same week as the Strauss v. Horton decision, it was announced that Ted Olsen and David Boies, who had previously fought against each other in Bush v. Gore, would team up to pose a federal challenge to Proposition 8. Just about a month ago, the trial began in the U.S. District Court for the District of Northern California. The trial, Perry v. Schwarzenegger, is expected to be appealed all the way to the Supreme Court. The potential for this to be a landmark gay rights case — a modern Brown v. Board — is an exciting prospect to say the least.

All of this may seem like old news, but there’s a reason I’m writing about a trial that happened almost a year ago. As you read this, a federal court is, for the first time, deliberating head-on the issue of gay marriage. This is a process that will last up to two years by some estimates, and although the news surrounding Prop 8 has quieted, the effects of Prop 8 have not. History is in the making.

Prop 8 may have been one of hell of a storm cloud, but the larger the cloud, the larger the lining.

David Murdter is a sophomore in the College of Arts and Sciences. He may be reached at dmurdter@cornellsun.com [6]. Murphy’s Lawyer appears alternate Tuesdays this semester.