The California State Supreme Court’s decision to uphold a referendum banning gay marriage and creating a segregated category for civil unions earned a sharp rebuke this week from civil rights organizations.
In the case of Strauss et al v. Horton, the state Supreme Court upheld a narrowly passed statewide referendum (Prop. 8) that took away rights granted to lesbian, gay, bisexual and transgender people wishing to marry. The same court ruled in the summer of 2008 that marriage equality was a fundamental right, opening the way for legal same-sex marriage until the passage of Prop. 8 last November.
It may be the first time a state actually upheld the removal of existing rights, setting a dangerous precedent that leaves no fundamental Constitutional right safe from legal challenge, civil rights activists said.
California Justice Carlos Moreno agreed in his dissenting opinion. “The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry that this court recognized in the Marriage Cases, it places at risk the state constitutional rights of all disfavored minorities,’ Moreno wrote. ‘It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.”
Shannon Minter, legal director for the National Center for Lesbian Rights, who argued the case before the California Supreme Court in March, said “Today’s decision is a terrible blow to same-sex couples who share the same hopes and dreams for their families as other Californians.’
‘It is a travesty that the court has permitted a simple majority to use the initiative process to strip a fundamental right from a minority group,’ Rea Carey, executive director of the National Gay and Lesbian Task Force, said in a press statement. ‘We are profoundly disappointed the court has upheld Proposition 8. Banning the fundamental freedom to marry for same-sex couples is unfair, unjust and flies in the face of progress occurring throughout the country, from the Iowa heartland to the rocky shores of Maine.’
The California decision contrasts with the growing trend across the country that is leaving anti-gay bias behind. By September 2009, Massachusetts, Connecticut, Iowa, Vermont and Maine will have granted full marriage equality rights. Five additional states, including California, will have provided some separate, unequal status for same-sex couples.
Both New Hampshire and New York are considering laws that would grant marriage equality. Washington DC and New York are close to recognizing same-sex marriages entered into outside those jurisdictions. According to a recent poll, more Americans support marriage equality now than oppose it.
“Public opinion is moving in the direction of fairness and equality, and it is only a matter of time until the freedom to marry will again be secure for all Californians,” said Jennifer C. Pizer, marriage project director for Lambda Legal. “Achieving equality always requires struggle, but over time people come to accept that equal treatment and equal protection of the laws is the best way to protect the rights of all.”
Civil rights groups have vowed an ongoing struggle for equality. Human Rights Campaign (HRC) President Joe Solmonese said, “This ruling is painful, but it represents a temporary setback. There will be a groundswell to restore marriage equality in our nation’s largest state, and HRC will not give up until marriage equality is restored in California.”
One initiative to build support for equality at the ballot box is California Faith for Equality (CFE), a statewide group established to educate, support and mobilize faith communities on LGBT equality. Some 6,000 faith group leaders in California have endorsed the project.
‘We are confident that same-sex couples will soon enjoy the honor, dignity and protections that only marriage provides,’ explained Geoff Kors, executive director of Equality California. “Despite this injustice, we are prepared to return to the ballot box together with our allies to restore the freedom to marry.’
The national labor movement had also urged the California court to uphold marriage equality in this case. In a resolution passed at its executive council meeting last March, the AFL-CIO denounced Prop. 8, saying, ‘it ended the right to marry enjoyed by gay and lesbian couples in California and cast a cloud over the legal status of thousands of California marriages…depriving one class of citizens of rights enjoyed by all others.’