Of Rights and Responsibilities
Late nights, headaches, exhaustive preparation and planning, even occasional despair. Clearly the battle to strike down California’s Proposition 8 has been an all-consuming mission. Not just for our team but for the people across the country who supported us and tracked the case online, hoping that a federal district court would deliver justice denied to gay couples throughout the state as the result of an insidious ballot measure. And on August 4 it did, affirming that ours is a nation that can indeed live up to ideals upon which it was founded, that liberty and justice truly are for all of us. Rarely are there moments in life so emotional as that summer afternoon in San Francisco, when we shed tears of joy with our plaintiffs, Kris Perry, Sandy Stier, Paul Katami, and Jeff Zarillo.
Today, while we at the American Foundation for Equal Rights continue to celebrate along with the rest of the gay community, our joy is tempered by the reality that ultimate victory awaits. The defendants in this case quickly appealed Judge Vaughn R. Walker’s decision to the U.S. court of appeals for the ninth circuit, assuring that this fight will not be over until it’s argued before the Supreme Court.
And so once again we plan and prepare, albeit with a greater sense of confidence, because the court’s 136-page ruling uses facts, evidence, and the law to validate gays and lesbians not as “special” but simply as American. As David Boies, who led this legal fight alongside Theodore Olson, said after our victory, those who vigorously oppose marriage equality “will attack everything they can think of to attack—except the court’s opinion. Because I guarantee you that they’re not going to be prepared to deal with what the opinion has found.”
For me, this case has always been about who we are as a nation. Election Day, 2008, left me profoundly conflicted. On the one hand, a nation that had been legally segregated mere decades ago had elected a progressive African-American to the presidency. Here was an unequivocal example of the American capacity for change, tolerance, and the equality that we cherish.
At the same time, California, a state that to me has always symbolized the best of the American dream, declared countless people to be inferior, officially relegating them to a separate class with different rights.
But I had grown up, as all of us have, being taught that ours was a nation where we are all created equal. Indeed, equality was the promise upon which this nation was founded, and since then we have struggled as Americans to bring our daily reality closer to our founding principles.
Waking up the morning after those devastating Prop. 8 returns, the challenge was what to do about vindicating the rights that had been denied to me and countless others. I am no enemy of the ballot initiative process, even in California. In fact, a large component of my political career has been spent leading contentious ballot initiative campaigns against the likes of Big Oil and Big Tobacco. And I was proud to have done what I could for the No on Prop. 8 campaign and will support similar campaigns in the future.
But we should never have to defend our fundamental rights with television commercials, bumper stickers, and lawn signs. Our government was crafted so that certain inalienable rights—such as freedom of speech and the right to private property—are protected by the courts from the will and whims of the political process.
So we went to court for protection, as is the American way. And while on its face it seems our case was about marriage (and this indeed is a fundamental right, one affirmed by no fewer than 14 Supreme Court decisions since 1888), it was also about affirming who we are as a nation and where our community fits into that nation. Are we Americans, or are we outsiders?
On our side are the attorneys who have battled for stakes as high as the presidency itself: Bush v. Gore opponents Olson and Boies, working together for the first time. Supporters from across the country have joined our cause, whether by donating, by following us on Facebook or Twitter, or by reading the officials case transcripts on our website to learn for themselves what those in court saw—that there is no sound reason to deny Americans the fundamental right to marriage.
AFER’s advisory board is now headed by the leaders of the nation’s top progressive and libertarian D.C. think tanks, and members include the former chairman of the NAACP, the cofounder of the United Farm Workers, and leaders from our community who worked alongside Harvey Milk. Indeed, our organization is one that has expanded and grown to be as diverse as the nation itself.
First and foremost are our plaintiffs. One could not find better examples of love, commitment, honesty, and family than them. They have demonstrated incredible courage and sacrifice and will continue to fight for as long as it takes for this case to reach the Supreme Court.
And yet the forces of inequality are strong. The other side will use their loss as a cry for help to gather funds to wage their battle, even though we saw them raise money from every corner of the country to pass Prop. 8, and that same well-structured network of donors has responded to help them fight this case. And they have top legal talent on their side too. In fact, their lead attorney was Ted Olson’s immediate successor in President Ronald Reagan’s Justice Department. They will accuse us of trying to “redefine” America, while they distort liberty and justice for “all” into liberty and justice only for people like them.
At their core I believe our opponents are afraid of the district court ruling because it’s based not on politics or ideology but on evidence and the law. One of our motives for waging this trial was to provide a forum where the spin and misdirection of the Prop. 8 campaign would be tossed aside and where instead both sides would have a fair shot to lay the facts on the table. We knew that when facts were presented, the righteousness of our position would be evident, as would the mendacity of theirs.
Unfortunately, this case was not televised. And so our work is that much harder. We are going on to the higher courts not just to protect the district court’s ruling against Prop. 8 but to continue getting those facts out in front of the public, to bring this issue into a forum of serious debate, one where our opponents cannot possibly succeed.
The key to our success lies with those who will stand with us. How many will learn about the case and echo the arguments of our lawyers? How many will look at the evidence and help their friends and families see the truth too? Our commitment is that we will keep fighting no matter what it takes and no matter who you are. We are guided by wise words from former NAACP chairman Julian Bond: “The humanity of all Americans is diminished when any group is denied rights granted to others.”