Prop 8 and Fundamental Rights
In addition to the procedural issues relating to amendments and revisions, the Court pressed the attorneys on the question of what constitutes a fundamental right in the first place. The Declaration of Rights in the California Constitution [which Prop 8 amended] states that the people have the right to fish and navigate the public waterways. Are those rights as fundamental as the right to marry the person of one's choice? Is the right to marry as "fundamental" and "inalienable" as the right to free speech? One Justice asked why the Court should not simply remove all references to "marriage" in the laws and Constitution of the State and recognize only civil unions? Why should the State of California be in the marriage business at all?
What makes this already complex set of questions even more perplexing is the fact as stated by the Justices, that these questions were being presented to the Court for the first time. The issues raised by the Prop 8 cases were unique and had no precedence in the Court's prior decisions or the decisions of other courts. Consequently, the Justices appeared to actively seek guidance from the attorneys on how they should craft a resolution to the cases that would be just and fair to everyone involved.
Before witnessing the oral arguments that morning I had not fully considered all of the dimensions of the drama that was unfolding before me that day. No one could. But I did have a personal perspective on what it felt like to grow up gay in a world where straight friends could date, go to prom, form relationships and be intimate without threat of violence, condemnation, ridicule or even death. I knew how it felt to watch from the sidelines as straight friends enjoyed the traditions of courtship and marriage that are generally recognized in our culture with engagement parties, bridal and bachelor parties, weddings and host of other ceremonies. I also grieved with married friends who had lost a spouse and watched how people understood the magnitude of their loss, and how even strangers showed compassion for them in their grieving.
And while I saw my straight friends and family engaging in these rites of passage, many of my gay and lesbian friends felt excluded from these courtship rituals, establishing their own culture, almost like a secret society - separate and distinct from the larger community - where they could pursue their quest for love and companionship free from the threatening elements they perceived in their communities. When gay and lesbian friends announced their partnerships, they only told people they trusted who would be supportive of their union. They did not want their efforts at building a life partnership undermined by disrespect or derision. They did not receive offers of blessings and support from their communities and churches. They could not describe their relationships as "marriages." Instead, they spoke in hushed tones using ambiguous words like "partner" or "friend." If a gay or lesbian friend lost their partner, there were not typically offers of sympathy or flowers. Despite the parallels between married couples and gay couples, married couples had access to a culturally and legally recognized status that gay couples did not.
Marriage Equality Timeline
The inequality in this distinction emerged over time as a hot political issue in California, and in 1999 the State Legislature passed civil union laws to recognize same-sex couples. The civil union laws conferred on them many, if not all, of the rights, benefits and obligations that applied to married couples under the law, without using the word "marriage" – creating a sort of marriage-lite for same-sex couples. But then, fearing the seeming inevitability of the expansion of marital rights to same-sex couples, in 2000 the voters of California passed Proposition 22 which prevented the State from recognizing same-sex marriages. So, while the State's legislators had given gay and lesbian couples the right to have their relationships legally recognized as civil unions, the voters stepped in to ensure that those civil unions would remain separate and distinct from marriage. Prop 22 succeeded in reserving the dignity and respect afforded by the term "marriage" for heterosexual couples only by law.
But then, in 2004, when Gavin Newsom, the Mayor of San Francisco, ordered the City to begin issuing marriage licenses to gay and lesbian couples (in defiance of the ban on gay marriage), the hope emerged in the gay community that same-sex couples might soon have the recognition that had eluded them for so long – if only in the city that to many was the holy land and undisputed capital of gay rights in an otherwise hostile world. In the wake of that pronouncement gay and lesbian couples from around the country flocked to San Francisco to get married only to have those marriages nullified shortly thereafter by the State's Supreme Court.
The lawsuits that emerged from that initial skirmish ultimately went to the California Supreme Court in the form of the "Marriage Cases" and on May 15, 2008, the court struck down the ban on same-sex marriage enacted through Prop 22, stating that the right to marry the person of one's choice is a fundamental right protected by the equal protection clause of the California Constitution. So, on that day, the people of California woke up to find that a fundamental right to marry had been recognized under the law that did not exist the day before. Most had probably taken that right for granted never having been denied it. But for their gay and lesbian brothers, sisters, aunts and uncles it was the first hammer blow in the dismantling of the Berlin Wall that had kept them from fully enjoying legitimate participation in their communities.