Reflections on DOMA and Prop 8

On November 4th, 2008, I was a deeply troubled man.  I had found an abiding sense of rage, hurt and insult, which had been initiated by my fellow Californians.  I had been told quite clearly, I was a second class citizen.  My partner, Anthony and I were not deserving of the rights that couples enjoy.  We were to be denied rights of immigration, social security and other federal benefits.  Further, we were told, we couldn’t have the rights which had been given to us by the State of California.  Why? Because a slim majority of my neighbors and citizens took it away from us, by using the proposition ballot process: the rule of the majority over the minority.

Thankfully, two seminal cases were brought before the Supreme Court of the United States: Hollingsworth vs. Perry (Prop 8) and Windsor vs. US (DOMA). These two cases would decide the fate of my life after 13 years of a committed relationship with my partner.  This past week, both were decided.  Thankfully in a way, which validates the relationship at a fundamental, legal level, particularly since my partner is a citizen of the United Kingdom.

In Justice Kennedy’s majority opinion, he wrote: “DOMA’s history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. . . It frustrates New York’s objective of eliminating inequality by writing inequality into the entire United States Code. DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages [emphasis added]. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.”

In Perry, the Court ruled that the appellant did not have standing to bring forward an appeal.  Chief Justice Roberts wrote in his final comments for the majority opinion: “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.”

Standing is necessary because there must be some tangible harm or reason that the appeals process is engaged and ultimately resolved.  As a result, the original findings of a federal judge, Vaughn Walker in August 2010, that Proposition 8 was unconstitutional stands.  Ironically, on the merits of the case, even when standing was found as the California Supreme court affirmed, Proposition 8 was ruled unconstitutional at every level.  This constitutional testing was determined via the due process and equal protection clauses of the Fourteenth Amendment.  Vaughn found it to be true in over 80 findings of fact and 55 pages of judicial analysis.

Why should you care?  It is simple. The Supreme Court correctly held up to the incandescent light of truth, whether or not these laws which were the rule of the majority, in 1996 by Congress and in 2008 by Californians, were fundamentally fair.  Both failed that test.  At some point in each of our lives, we will be the minority.  When you are, I hope that rational, Constitutional reflection protects your rights, just as mine were.  I felt elated, vindicated and once more equal to my fellow citizens on the issue of marriage.

Finally, let me be clear on the issue of religious liberty.  As protected under the First Amendment, I would never attempt to force an organization or individual to officiate my marriage.  I would like to think that my legal benefits, consequences and responsibilities as a civil matter would be the same.  Perhaps one day, we will be equal throughout the United States, but today, I am simply proud to be a citizen and resident of California.  Soon, my husband will be able to feel that way too.