Equality With Exceptions Is Not Equality

To say Thursday March 5th was "intense" hardly captures the boisterous, often angry cacophony outside the California Supreme Court. I've rarely seen anything like the anticipatory drum roll of public attention in the weeks before — the community rallies and vigils, and the rising tide of media coverage. Have we ever had so many community "court watching parties," let alone a JumboTron screen in the plaza outside the court? It seemed like a Super Bowl of constitutional litigation, except that this contest is no game.  It's about a vulnerable minority defending our equal personhood and whether California's constitutional guarantees are solid or gossamer.

Inside the high court's majestic chamber the atmosphere was dignified, but as the legal arguments unfolded, passions and tension grew. Sitting huddled with our litigation team, puzzling over the layers of meaning in each question, I struggled to sort out the potential implications.

We should win. We have an extraordinary team. We worked long and hard on our strategy and papers, and have confidence in our legal arguments. More than forty friend-of-the-court briefs — representing hundreds of organizations, civic leaders and esteemed scholars — agree with our approach. Given California's history and constitutional structure, I believe our analysis is the most legally sound. And win or lose, we have made impressive strides, because whenever people notice and think about antigay discrimination we make progress.

It's like "the Emperor's New Clothes." The right wing clamors that society must exclude gay people and label us as different and "less than," because heterosexual couples supposedly need that. But the more the subject is discussed, the more people realize they do not need "defending" against same-sex couples, or need gay people excluded and oppressed to have happy relationships themselves. They see that the Emperor's "new clothes" have no substance. Then many feel concern and regret about how we have been treated.

Our cases are designed to prompt this recognition and I think we saw evidence of it during the argument. For example, why so many questions about whether the state should "get out of the marriage business" and offer civil unions to all? That is not a serious proposal here or anywhere in this country. Millions of heterosexual couples are very attached to their marriages, as thousands of same-sex couples now are as well. But I see these questions as a promising sign, because they acknowledge that excluding gay people from marriage and relegating us to a subordinate status is not equality. Proposing the same status for all shows the justices know what equality demands. Whether or not their decision will meet this demand, our position is much improved from just a few years ago.

I was surprised to hear Chief Justice George ask whether this dispute is "just about nomenclature." Of course the answer is that there's nothing "just" about it. And the Chief Justice understands that, as he himself gave one of the most cogent explanations of this principle in his eloquent Marriage Cases decision of last year. The dispute is about civic equality — one of our core constitutional values. "Nomenclature" matters because words connote status and unequal status has profound, real-life consequences.

One of the advocates on our side offered a pointed hypothetical by asking if it would be mere nomenclature if male judges were called "justices" while female judges were renamed "commissioners." In last year's litigation, we similarly noted that the issue is the same whether the statuses are marriage versus domestic partnership or "parent" versus "registered guardian." This discussion left no serious doubt that gay people lose something precious if denied marriage. Plainly, a majority of the court still understands this.

The Court's questions showed how the justices were struggling with these important questions. For example, Justice Kennard asked, doesn't Prop 8 merely take away "just" one right — the right to marry — while leaving us with ample rights and duties through domestic partnership? Yet she and most of the public surely know that the magnitude of the fight on both sides is a measure of the significance of the right at stake. And to take the next step: if Prop 8 is upheld, what will the next initiative target? Our parenting rights, as in Arkansas this fall? Tax equality?

We believe that equality with exceptions is not equality. 

And we believe the California constitution has promised us all equality. As a matter of legal history, giving initiative power to California voters in 1911 did not transform California into a direct democracy without limits. Those who framed the initiative power aimed to counterbalance entrenched business power in the Legislature, not do an end-run around the equality guarantees. The initiative power created by a constitutional amendment did not and could not negate the courts' role as an essential check against majoritarian abuse of vulnerable minorities.

The two sides could not have presented more starkly contrasting visions of this state's constitution. Arguing in support of Prop 8, Ken Starr put a charming face on a horrifying jurisprudence that provides no protection at all to minorities. He admitted openly that his view of the constitution means a bare majority of voters could reinstate the racial restriction on marriage struck down in 1948.

The notion that the initiative process can be used this way has alarmed civil rights and religious leaders, academics, elected officials and so many others. Our shared concern has brought us closer together and strengthened our alliances. Our work on this litigation and in communities is nourishing and deepening relationships that will shape the next stage of our work, regardless of the litigation outcome, just as the public focus on this case has prompted people of good will to think again about what our society is about. Do we have an inspired constitutional system that promises "liberty and justice for all"? Or is it a "tyranny-of-the-majority" democracy in which those who are different are always at risk?

We have many new partners who recognize all too well the painful consequences of bigotry and abuse of power. Writing for the Southern Christian Leadership Conference — the group that carries the banner of Rev. Martin Luther King's social justice movement and a friend-of-the-court in this litigation — Rev. Eric Lee wrote: "As an organization with a proud history of social justice advocacy inspired by biblical values of compassion, respect for individual dignity, and freedom, the Southern Christian Leadership Conference believes … all couples must be treated equally and be free to have their marriages 'consecrated' by the faith of their choosing, or not, as they wish, without being subject to oppressive whims of popular or powerful majorities." His views ring true to many who have not thought favorably about marriage equality before.

We will not know the jurists' thinking until we receive the decision. One of the lessons we learn early in law school is not to assume that questions reflect judges' actual views, but to realize they may instead be attempts to speak through a lawyer to other judges. We do know, though, that whatever happens will be important to California law — and in our lives. And it will be part of a much larger effort to win full equality nationally — an effort in which we are making obvious progress. We are poised for a marriage decision from the Iowa Supreme Court — an independent court in an independent, heartland state. There is promising legislative activity on marriage equality in many places including Vermont, New Hampshire, New Jersey, New York and Rhode Island, and other important steps to protect same-sex couples being considered in at least Hawaii, Illinois, Minnesota, Wisconsin and Washington. Congress and the new administration are poised for a long-awaited shift on issues affecting same-sex couples.

Our challenge to Prop 8 poses a new question, and the Court's answer will break new ground. Win or lose in this case, we believe our analysis is correct and will be adopted.  We hope it will be adopted within weeks. We are confident it will be eventually.

We will receive a decision in Strauss v. Horton no later than June 3, and likely earlier. While we wait, we continue to expand community relationships, plan next legal steps and engage more fair-minded people in the productive conversations that test-case litigation always inspires.