Lambda Legal – November Brief

In Brief: What Democracy Looks Like


There has been a lot of anger and disbelief expressed since a slim majority of voters passed Prop 8 in California; in many communities, LGBT people and our allies have taken to the streets to express outrage. After so much love and joy had been celebrated, antigay forces spent millions of dollars on lies and deception to try to take marriage away from us on Election Day. But this is not over: the very next day, we began fighting back.

We don’t think this is the way democracy is supposed to work in California, and we are going to court to stop Prop 8 from taking effect. Lambda Legal, the National Center for Lesbian Rights (NCLR) and the ACLU are representing Equality California and six same-sex couples. The heart of our legal argument boils down to this: A fundamental liberty of a minority group is being stripped away by a simple majority vote. This makes the equal protection clause of the constitution meaningless. Can you do that in California with one vote? We don’t think so.

California’s constitution requires a different process. In order to make a fundamental revision to the constitution that would change the way state government works in California, the revision must first, at a minimum, be approved by a two- thirds vote of each chamber of the legislature, and it then must be sent to the people for a vote.

Why is there a more difficult process required to make the change intended by Prop 8? We all learned about it in grade school: The framers of both the federal and the California constitutions understood that a primary function of the courts and constitutions is to protect minority groups from the will of the majority when it comes to fundamental rights. Can 51 percent of the people vote to take away the free speech rights of women, but not of men? We don’t think so. Can 51 percent of the people vote to say that Christians are free to worship as they choose, but people of other faiths may not? Not a chance.

If Prop 8 were implemented, it would fundamentally change the meaning of the constitution and the role of the courts in protecting fundamental rights. Prop 8 passed through only the initiative process without a two-thirds vote of the legislature. That’s why it’s invalid.

After this incredible and emotional election, we take both the long and short view. The long view shows that both public opinion and history are moving steadily in the right direction. The election of Barack Obama as president proves that change is possible and that prejudice can be overcome. Fifty years ago, black Americans still lived in segregated communities and were blocked both from voting and equal opportunities for employment. Only 40 years ago, the U.S. Supreme Court decided Loving v.Virginia, striking down the remaining laws banning interracial marriages, and now we have elected a president who is the child of an interracial marriage. And only eight years ago, the original Prop 22 (the Knight Initiative) that banned marriage for same-sex couples in California passed by a nearly two-to-one margin (61 to 38 percent), while this year Prop 8 barely passed by two percentage points. The long view gives us hope and a vision of the future.

In the short view, we are confronting bitter losses not only in California but also in Florida, Arizona and Arkansas, and we’re fighting back because our relationships and families deserve dignity and respect. We are preparing for oral arguments before the Iowa Supreme Court to defend our marriage-equality victory there, and we are seeking justice for Janice Langbehn, who was not allowed to see her dying partner in a hospital in Miami.

In fighting back against the injustice of Prop 8 and the other ballot measures that targeted LGBT people, we stand together with other groups that have faced discrimination, not against them. People of color and people of all faiths have fought for freedom and are part of our LGBT communities across the country. Divide and conquer is the oldest political strategy in the world. If we fall victim to it, the extreme right will have won a lot more than this year’s ballot measures.

As we anticipate the inauguration of the 44th American president, we are not simply waiting for change to come to us, we are working for it — through community education, by preparing for the political struggles ahead, and by doing what Lambda Legal does best — making the case for equality in our courts. This is what democracy looks like.

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