Karen Ocamb

Prop 8 - Who's Next?

Filed By Karen Ocamb | November 14, 2008 11:00 AM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: civil rights, Connie Rice, gay marriage, Gloria Molina, marriage equality, No On 8, organized religion, Prop 8, same-sex marriage

You remember the famous quote by Nazi martyr Pastor Martin Niemoeller about the Holocaust - how they came for all these other people - but he didn't speak up - and then they came for him?

Something like that is happening now with minority communities waking up in a cold sweat that if Proposition 8 is allowed to stand, they could be next.

This is what Niemoeller said:

"First they came for the communists and I didn't speak up because I wasn't a communist.

Then they came for the Jews, and I didn't speak up because I wasn't a Jew.

Then they came for the trade unionists and I didn't speak up because I wasn't a trade unionist.

Then they came for the Catholics and I didn't speak up because I was a Protestant.

Then they came for me - and by that time there was no one left to speak up."

To be sure, the No on Prop 8 campaign was bursting with coalitions - including people of color groups such as HONOR PAC, Bienestar, and the Jordan/Rustin Coalition. Additionally, mainstream organizations such as the NAACP, the Southern Christian Leadership Conference, the United Farm Workers, the Latino-heavy SEIU, the Mexican-American Legal Defense and Education Fund, the Asian/Pacific American Legal Center of Southern California, among scores of Asian Pacific Islanders groups, which all spoke out against Prop 8.

Still to be determined is whether the campaign provided enough resources and field support to help these organizations help the campaign.

But since the passage of Prop 8, minority communities across the state are realizing that Prop 8 is not just about gay marriage - but about taking away any minority's existing rights. In fact, a number of minority legal groups, including API Equality and Equal Justice Society, intend to submit a friend-of-the-court brief by Monday supporting the legal constitutional challenge to Prop 8.

That was the tone and tenor of the testimony before the Los Angeles County Board of Supervisors, which represents the largest county in California and in the country, on Wednesday. The board was considering a motion brought by Supervisors Zev Yaroslavsky and Gloria Molina to join the lawsuit filed by the City and County of San Francisco, County of Santa Clara and City of Los Angeles v. Mark B. Horton, et al.

The motion said, in part:

"[The lawsuit] seek[s] to overturn Proposition 8 on the grounds that equal protection is such a foundational principle of the California Constitution that the right of the electorate to pass an initiative constitutional amendment does not include the right to overturn, by simple majority vote, a principle as fundamental as equal rights for all."

In her opening statement, Molina said:

"I am proud to present this motion--co-sponsored by my colleague, Supervisor Zev Yaroslavsky--to join an existing lawsuit challenging the constitutionality of Proposition 8. It is important for us to take a stand and uphold the equal rights of all California residents.

Last week, Proposition 8 passed by a narrow five percent margin. It eliminated the right of same-sex couples to marry--and it effectively overturned the May 2008 California Supreme Court decision, which found the ban on same-sex marriages to be unconstitutional on equal protection grounds.

There are three separate court challenges to Proposition 8. Their arguments are two-fold: First, that revoking an existing right guaranteed by the Equal Protection Clause of the California State Constitution is not an amendment but a revision. Second, that such a move is not a fundamental right that could be subject to popular vote; rather, it is a deliberative process requiring--at a minimum--a Constitutional Convention or a two-thirds vote of the California State Legislature in addition to a popular vote.

And I agree.

Some may ask why, as a county supervisor, I would get so directly involved in this issue. First, as a county, we are directly responsible for the issuance of marriage licenses. Second, we are elected officials sworn to uphold the constitution. But third--and, in my view, most importantly--we face the dilemma of balancing the enforcement of Proposition 8 with upholding the fundamental equal protection rights of all our citizens. Simply put, we need clarity on this issue, and I believe joining one of these legal challenges to Proposition 8 is the most prompt and effective way of achieving this goal.

Separate from the legal level--on the very human and personal level--I feel compelled to say that Proposition 8's passage saddened and angered me for several reasons.

First, Proposition 8's passage basically mandates that certain people have fewer rights than others. It says that certain brothers, sisters, daughters, aunts, uncles, mothers, and fathers are second-class citizens--that though they have all the responsibilities of citizens, they have fewer rights. That is wrong.

Second, the right to marry--with all of its attendant rights and responsibilities--is a civil right, one that has nothing to do with religion. Nothing in the California Supreme Court's ruling or the Equal Protection Clause gives anyone the right to force any religious institution to marry anyone. So Proposition 8 is not about religion. It is about discrimination. And lest we forget, it took a California Supreme Court decision to overturn miscegenation laws in this state. As late as 1967, 16 states still had miscegenation laws on the books and in their respective constitutions. Back then, like now, opponents of this change used the same religious arguments being made today. President-Elect Barack Obama's parents would not have been able to get married in those 16 states.

Lastly, as a Latina, I am well aware of discrimination. I have dedicated my entire political career to fighting it. I began my career advocating on behalf of Spanish-speaking, Latina immigrant women whose most fundamental right of reproductive choice was taken away by others. Specifically, it was taken away by a group of county physicians who gave them no choice and no voice--and who made the decision that sterilization was right for them. Such abuses of power could not stand then and they cannot stand now.

While the focus is on the gay and lesbian community, I think this is a civil rights issue for everyone. Every vulnerable minority group in this state should be extremely concerned about the ability of the majority to reach into the constitution and change it to single them out and opt them out of the constitution's protections. That is something no one in this state can or should support. And it is something I intend to fight against."

Among the 17 articulate and passionate speakers - whose testimony will be posted in full on the Board of Supervisor's website by Friday - was longtime civil rights activist Connie Rice. As some African Americans vent their anger over what they perceive is the usurpation of the civil rights movement by the LGBT community's struggle for equal rights, Rice squarely comes down on the side that yes, this is a civil rights issue and movement.

Rice said, in part:

"I am a civil rights attorney. I have fought on issues such as race, gender, age, class, religion, and today I'm here to stand against exclusion based on sexual orientation. You have heard the legal arguments for voting to join the lawsuit challenging the constitutionality of Prop 8 - and I agree with all of those arguments.

The most important is that you can't wake up and decide that it was wrong for women to have the vote and get a proposition together with 50-plus one and then revoke that right.

When the California Supreme Court found that gays, lesbians, transsexuals, bisexuals, when that community constitutes a minority that suffers specific stigma based on bias and fear, they have joined the other protected categories. You can't simply strip those rights away with a majority vote.

The Los Angeles County Board of Supervisors is the largest local entity government in the United States, by far. You carry a weight that other localities and jurisdiction do not. This is an extraordinary important principle to stand for - not just to protect the gay and lesbian community - but also to protect the religious community, because civil marriage is completely separate from sacrament church-blessed marriage.

I would be equally adamant in protecting the rights of synagogues and mosques and churches to confer their sacraments based in their faith in any way they deem necessary, according to their faith. And he state law has absolutely nothing to say to faith communities about whom they can marry and how they can marry them.

This is a double right. Religious communities cannot take civil law and merge it with sacramental law. When you were talking about civil law and you confer that right and that responsibility and that privilege to the citizens of California, you cannot withhold that right based on an invidious, targeted basis of stigma.

Separate but equal marriage doesn't work any better than separate but equal public accommodation or anything else. There is no difference because the only basis for having two-tier marriage is because the second tier is based on fear and loathing and stigma, just as separate but equal accommodations of fear and loathing of African-Americans.

This is a civil rights issue. It is comparable to the battles my parents have fought.

On a personal note, I am the great granddaughter of slaves and slave owners. My great grandparents could not marry as slaves. My marriage to a Jewish man would not have been possible without the changes in civil law. Marriage in the civil side has been evolving with standards of social assembly and law.

We need to take this step now. I urge you very strongly to join the fight to end the exclusion based on sexual orientation."

Could we finally all be in the civil rights struggle together?

The board voted to join the lawsuit.

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In order to make this point more clear to some people that refuse to see Prop 8 as an attack on citizenship - via the example of restrictions on the right of same-sex couples to have a marriage license - I propose another amendment.

Since interracial marriage was achieved in CA following the same pattern as same sex marriage, I propose we gather signatures to place an amendment on the next ballot to abolish interracial marriage. In the same way that our rights were taken, so can yours.

Maybe then it will make sense to some of the more ignorant and obstinate (and easily frightened) Californians that initiatives like Prop 8 must be resisted.

All we have to do is gather signatures. We'll need 1 million (at least) and in that time we can make our point - whether or not the amendment makes it to the ballot. We need to break the hardcore prejudice that blinds people from seeing this struggle as something that has much more to do with citizenship than it has to do with marriage.

We can make this point and we should.

We might be trying to make a point, but I assure you such satire won't be taken very well by the African American community; I suspect it will further alienate them, which doesn't help.

Reformed Ascetic | November 14, 2008 8:36 PM

People have engaged in tactics like this.

The one I'm recalling at the moment was in Washington state. The proposal went something like since marriage is intended to produce children only those couples who are capable of and intend to procreate should be allowed to marry. There may even have been a clause saying something like those couples who failed to reproduce within a couple would be dissolved.

It made the national news, but, since I never heard of it again, I 'm assuming it died out.

I applaud the L.A. Board of Supervisors' move, as well as the statements by Governor Schwarzenegger. Hopefully a mass of more government entities in California will join in.

Reformed Ascetic | November 14, 2008 8:30 PM

I'm wondering if in the end a success through the courts by way of this legal argument might not have greater impact across the nation than succeeding in the initial vote would have.

Thanks for the comments everyone.

And yes - this is catching fire. Rex Wockner has dubbed it - correctly, in my opinion - "Stonewall 2.0."