March 6, 2009

The Painful Witness of Flawed Defense
California Proposition 8 Editorial - Art Cribbs went to San Francisco to speak in opposition to Proposition 8.
Photos courtesy of Mary Helen Doherty

The California Supreme Court will determine the validity and constitutionality of Proposition 8, the citizen initiative that seeks to put 14 words into the state Constitution that will define marriage as between one man and one woman. This vicious act of injecting those words into the most sacred, legal document in California harms same-sex couples.

Although there is a high probability the State Supreme Court’s ruling will not invalidate the 18-thousand same-sex marriages performed last year in California, the chances appear probable the court will rule not to overturn Proposition 8.

Sitting with gays and lesbians during the three hour court hearing, the roller coaster experience of hope and disappointment left a scar on my heart. Attorneys arguing against Proposition 8 failed to present compelling legal evidence to sustain their case. The primary legal point on which the court’s decision may rest is the definition of “revision” versus “amendment.”

A revision of the state Constitution requires a legislative action with the approval by a two-thirds vote in both the state Senate and Assembly before it can go to the voters.

On the other hand, a simple majority in a well-financed popularity contest can actually amend the California Constitution. In fact, the state Constitution has been amended at least 500 times in California history. That is compared to 27 times for the United States’ Constitution which is older and more far-reaching.

As I sat near Anthony Romero, national director of the American Civil Liberties Union, I cringed and ached as attorneys who opposed Proposition 8 delivered weak, lame, and disputable arguments before an unsympathetic bench.

I was greatly disappointed by the team of attorneys who argued against Proposition 8. With the exception of Ms. Theresa Stewart of the San Francisco City and County Attorney’s office, they failed to deliver a powerful case.

I wished Thurgood Marshall, the late civil rights attorney who successfully challenged segregation in public schools and was named to serve as a justice on the United States Supreme Court, could have been summoned to stand before the seven state justices and argue on behalf of same-sex couples for equality and fairness. Such was not the case on this occasion.

My soul burned with a deep pain as I thought of the harm perpetuated against people who love each other and desire to faithfully commit their lives in matrimony. It is far beyond my understanding why any third party would want to prevent loving couples from marrying, even to the point of placing discriminatory language in the Constitution.

The State Supreme Court ruled 4-3 last year that a ban on same-sex marriages violated the state’s equal protection clause and was not sustainable.

However, proponents of this insidious initiative took their case to the voters last November and placed their challenge of the High Court’s decision on the ballot. The proponents created a campaign strategy that connected the ban on same-sex marriage to the protection of children in schools and religious freedom.

Beyond the fictionalized insistence of a connection, there is no viable evidence that ties married couples to the issues grossly and graphically broadcast at the height of the political season.

The unprecedented nature of the legal challenge left the justices admitting the arguments they heard were “novel.” Unfortunately, the protection of the fundamental rights for same-sex couples has been placed in jeopardy because of a legal technicality which allows the state Constitution to be amended by a simple majority of voters.

Chief Justice Ronald George rightly suggested a legislative correction in the process is the only solution to prevent future abuses that result in stripping away equal protection for all citizens, especially minority groups.

I fear the future of court proceedings if legal advocates for the rights of people who are harmed by public policy fail to bring indisputable arguments to their defense.

Art Cribbs
Pastor
San Marino Congregational
United Church of Christ