It's depressing to think - after having just lost an expensive and exhausting campaign - that repealing Proposition 8 could mean going back to the ballot. It is unfair and unjust that a slim majority of California voters took a fundamental right away from a minority, jeopardizing equal protection. But the state Supreme Court heard oral arguments on the City Attorney's lawsuit yesterday, and the signs were very discouraging. Justice Joyce Kennard (who last year voted to grant marriage equality) was hostile to the case against Prop 8, and Chief Justice Ron George was skeptical. Not that there isn't any hope: perhaps the extreme arguments made by Prop 8 lawyer Kenneth Starr will inadvertently sway the Court into recognizing the measure's dangerous effects. But no one should expect the Court to repeal Prop 8. Activists must get ready for a 2010 proposition campaign as the next available remedy, however deficient a political solution that would be. We must learn from the colossal mistakes of the past campaign, and a new generation of activists will make it happen.
When SF City Attorney Dennis Herrera sued last week to overrule Proposition 8, I didn't expect him to prevail - as much as I appreciated him trying. As wrong as it sounds, the initiative process allows a bare majority of California voters to change our state constitution - and with other states having passed similar marriage amendments, I couldn't see how the courts would repeal it. But after having read Herrera's well-written brief and done some legal research, I am now more optimistic that justice will prevail. Prop 8 was not your typical "amendment" that merely tinkers with the California Constitution. It was a drastic revision that deprives a "suspect class" (gays and lesbians) of a fundamental right under equal protection. And a simple majority vote of the people is not enough to take that right away - especially when the purpose of equal protection is to shield minorities. While other courts have upheld marriage amendments in other states, they have different Constitutions - and court rulings have changed considerably in a short period of time. And unlike many states, California has explicitly found sexual orientation to be a "suspect class." If the Court overrules Prop 8, it will be a powerful affirmation for justice - capping what has been a powerful year of "change."
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