By Alan Brownstein | Special to The Davis Enterprise | May 28, 2009 08:18
Tuesday was a tragic day for California. For the first time, we have enshrined in our constitution a provision that rejects our state's historical commitment to equality and denies a specific group the right to exercise a fundamental right - the right to marry.
While other states in New England and the Midwest are advancing the cause of equality and human rights, to our shame, we have turned our backs on gay and lesbian members of our community. Under the constitutional regime mandated by Proposition 8, our neighbors down the street, our colleagues at work, congregants who worship with us, and close friends and family members whom we love are now branded as second-class citizens solely because they are gay or lesbian.
The wrong that was done on Election Day last November and upheld by the Supreme Court this week does not only stigmatize gays and lesbians. It transformed our understanding of the California Constitution.
Proposition 8 demonstrates that our constitutional emperor has no clothes. We now know that while our constitution declares that Californians have inalienable rights, in reality those rights can be denied by a bare majority of the voters. But rights that are subject to the approval of the majority aren't rights in any meaningful sense. They are privileges that can be abridged or withdrawn at the state's discretion.
Proposition 8 also fundamentally distorted the very purpose of constitutional law. Instead of serving as a shield to protect minorities against the tyranny of the majority, our constitution now serves as sword that requires the state to practice discrimination.
After Proposition 8, our constitution mocks the very idea of rights.
The Supreme Court is not to blame for its decision to uphold Proposition 8. We are all responsible for this stain on the integrity of our state.
We should have known better, but we allowed ourselves to be manipulated by fear and prejudice.
We now know if we did not know it before November, that the proponents of Proposition 8 misled the voters of California with groundless and exaggerated claims about the consequences of recognizing same-sex marriages. We were told again and again that if Proposition 8 was defeated, churches and clergy would be required to officiate over the weddings of same-sex couples - even if doing so violated their religious beliefs.
Yet today, when laws recognizing same-sex marriages are being considered in several states, opponents of marriage equality demean provisions in those laws that explicitly protect churches and clergy against any such requirement. Now they argue that such protections are unnecessary distractions, because the First Amendment prohibits any attempts to coerce or penalize clergy who refuse to perform same-sex marriages or any other religious ceremony.
Yet today's tragic affirmation of discrimination does not have to stand as law for long. Since this was a self-inflicted wound, we have the power in our own hands to remedy the harm we have caused. It is up to all of us to roll up our sleeves and work together to change our constitution back to one that affirms fundamental rights of liberty and equality.
Efforts are already under way to restore the right to marry to our gay and lesbian brothers and sisters. Those efforts can be successful if people join together to offer a helping heart and hand.
This is a sad time. But those of us who fought against Proposition 8 are more resilient and stronger than our opponents realize. The sadness we feel today can and will be channeled into the energy we need to erase Proposition 8 from our laws and our lives tomorrow.
- Alan Brownstein is a professor of law at the UC Davis School of Law and submitted this piece on behalf of the Davis-based Gay-Straight Alliance for Equality. For more information, visit http://www.gsafeweb.org
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