Gloria Allred, one of the most famous lawyers in the nation, has taken on cases involving Aaron Spelling, Bill Clinton, and Nicole Brown Simpson. But her latest legal effort was representing spouses Robin Tyler and Diane Olson in their effort to first bring marriage equality to California, and later to keep it. After helping convince the state supreme court in 2008 to end its ban on same-sex marriage, Allred then argued that the voter-approved Proposition 8 was an illegal revision of the constitution. Appearing at Tuesday night's rally in West Hollywood, Allred was visibly shaken by the supreme court's decision to uphold the ban on same-sex marriage but still managed to speak to The Advocate about next steps, federal lawsuits, and California's supreme court justices.
What do you think of a federal lawsuit that would bring Proposition 8 to the U.S. Supreme Court? I don't think there's any basis whatsoever for any federal claim. This is the California supreme court interpreting a California amendment to the California constitution and they are uniquely suited to interpret the constitution and any initiative by the people. There is no federal claim asserted in any of the lawsuits [in the case that the California supreme court just decided on Tuesday]. Therefore it's clear that such a claim would not be successful if filed in federal court. The remedy now is to go back to the electorate and to seek another amendment to the constitution in our favor because it was in the 60 percentile range when Prop. 22 was passed -- which was struck down by the California supreme court -- and it had the same language as Prop. 8. And now it's only 50%-plus for the passage of Prop. 8. So the trend is in our favor and I think we have a good change of winning at the next election in 2010 if an amendment is placed on the ballot. Having said that, this is a very sad day.
Do you think the state's proposition system is broken? I agree with Justice Moreno, who was the dissenter. That it was improper to use the amendment process, which only requires a bare majority, to make such a fundamental change in the constitution. In the past it was necessary to use the revision process to make such a very serious change. And that requires two thirds of the legislature plus a majority of the electorate to pass, or a state constitutional convention. Neither of which was done in this process, probably because the Prop. 8 proponents understood they would not be successful with a revision process.
Were you surprised by the 6-1 decision? I'm not surprised by the result, but I was disappointed that there was only one dissenter. This is a real shock wave. This is such a denial of rights.
Do you hold the court accountable, or do you think they were hamstrung by California's laws? They could have interpreted it differently. They could have found that the revision process needed to be used for such a substantial change in the foundational powers of government and the constitution, as Justice Moreno said. The promise of equality is now a broken promise. It's just heartbreaking to me as a civil rights attorney.
Were the justices fearful of being recalled? Well, I have to wonder that if they had the lifetime appointments of the justices to the United State Supreme Court, whether the decision would have gone the same way. I can't answer that question, but I do have to wonder about it.
In the last year's case, the supreme court ruled for same-sex marriage partly on the basis that gays and lesbians were a suspect class, a minority group historically subjected to discrimination. How did that not play a part in the latest decision? Under the original decision last year, the court went very far and declared that gays and lesbians are a protected class, specifically a "suspect" classification, meaning that any law that was to be passed that would discriminate against them would receive the highest degree of scrutiny from the court because gays and lesbians have suffered a history of discrimination. So any law that would seek to discriminate against them would have to have compelling justification. Generally, with that standard no law can stand that discriminates against gays and lesbians. Now they're saying a right can be taken away from a suspect class. It's shocking. It's unprecedented. And we need to change this.
Can you talk more about the precedent that this sets? I think it sets a very dangerous precedent. The equal protection clause was added to the California constitution to protect minorities against the tyranny of the majority. The majority will always protect its rights. The question is, Will the minority be protected from the majority overreaching and undermining their rights? Now we know there is no protection for minorities. And the question is, What comes next? What's to stop a group from proposing an amendment which would take away such basic fundamental rights from gays and lesbians as the right to adopt, the right to have foster children, the right to serve in employment opportunities like becoming a judge or a teacher. What's to stop a group who wants to take rights away from African-Americans or Mexican-Americans or even women? Apparently, now there's nothing that's going to stop them. Nothing that's going to stand in their way. By a bare majority, those rights that were considered so fundamental can be stripped away in almost an instant. As a civil rights attorney for 33 years, that's very hard for me.
I want to say, it's been an honor to be part of this five-year battle to represent Robin and Diane in our lawsuit. We won the first time with the California supreme court; we won half a loaf, not the full loaf this time, by their marriage being upheld. But it's not enough for them and it's not enough for us. We want everyone to have the right to marry. I totally agree with the California supreme court -- marriage is not just a name, it's not just a word. There's a certain dignity, a certain respect, a certain stature that's afforded to the relationship that's not afforded to domestic partnerships. I know I will never, ever stop fighting and doing whatever I can to make sure everyone has that right to marry. And I'm very proud of the community that they're rallying together and that they're never going to stop either. Because they are right and they are going to win.