The Rights of the People

Prop 8: Majority Rule Of Minority Rights

Today the Supreme Court of the United States (SCOTUS) is hearing the case regarding the constitutionality of California’s Proposition 8 (Prop 8) which made same-sex marriages in the state illegal.  Two lower courts have overturned the proposition, so the question of whether the Supreme Court could intervene was brought into question since the lower court’s ruling was not overturned by the Appeals Court.  Also called into question was whether the federal courts could decide an issue that was based solely in the states which would be based on 10th Amendment to the US Constitution.  (SCOTUS blog)  However, SCOTUS is hearing the case and will be making its ruling later this year.  It could indeed overturn the lower courts on the grounds of the 10th amendment, but it’s not likely since there has been a precedent set by such cases as Lawrence v. TexasRomer v. EvansLoving v. Virginia, and even Brown v. Board of Education.

Though the Appeals Court did not overturn the lower court’s ruling, there was a difference between the two.  The lower court ruled that a majority vote cannot strip away the rights of a minority.  Basically, this would make all constitutional bans on same-sex marriage null and void if upheld and not just California’s Prop 8.  The Appeals Court would rule that it just applied to California and to no other state because same-sex marriages were legal before Prop 8 was passed thus stripping away the rights once they had been granted; whereas, other states simply banned same-sex marriage before it became legal.  So there are two ways for the Supreme Court to rule if it upholds the lower courts.

gay-marriage-debate-thumb-320x240-9845We’ll start with the lower court’s ruling that a majority vote cannot strip away the rights of a minority thus making all the state constitutional bans unconstitutional.  Thomas Jefferson would have disagreed with this notion.  He felt that since we had such a diverse population that the will of the majority should always be upheld since it would be void of outside influence and would point the nation in the best possible direction.  However, we have the luxury of a bit more history to look back on than Mr. Jefferson did.  We can see that the will of the majority is not always correct.  Case in point the Territory of Wyoming.  When the territory was set up in 1868, it included the right for women to vote.  This was long before the passage of the 19th Amendment (1920).  When Wyoming applied for statehood, the federal government said it would have to get rid of its suffrage in order to be admitted since the rest of the US didn’t allow women to vote, and it was still the majority opinion that they shouldn’t.  The territorial government refused to budge and said it would wait for the rest of the country to catch up.  Wyoming would be admitted in 1890 as the 44th state without giving up the right for women to vote in the state.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  9th Amendment

supreme-courtIn Afroyim v. Rusk (1967), the Supreme Court ruled that Congress could not strip away a person’s citizenship which is guaranteed under the Citizenship Clause of the 14th Amendment.  With this ruling though, the court was stating that once you have a right, it cannot be stripped away.  In Brown v. Board of Education (1954), the Supreme Court ruled that states could not establish separate schools for black and white students (state-sponsored segregation).  As a result, racial segregation in all matters was ruled to be in violation of the Equal Protection Clause of the 14th Amendment.  It did not matter if a state had passed segregation laws or not.  The case Griswold v. Connecticut (1965) set the legal precedent for the 9th Amendment to the US Constitution.  Though the case pertained to a person’s right to privacy, the ruling had something more to it.  In writing his concurring opinion, Justice Arthur Goldberg stated, “Other fundamental personal rights should not be denied protection simply because they are not specifically listed [in the US Constitution].”

The Supreme Court has already ruled that government cannot ban interracial marriage (Loving v. Virginia, 1967), so what would be the difference between that ruling and the ruling to come regarding Proposition 8?  Opponents to interracial marriage were making the same arguments then that opponents to same-sex marriage are making now.  It’s not so much whether Prop 8 is going down or not.  The real question is going to be how and the full effect of that ruling.  Will it be more in line with Afroyim and thus would technically only apply to the state of California (since they are the only state to strip away the right to same-sex marriage after it was granted), or will it be more toward the Brown and Griswold rulings which would negate all same-sex marriage bans?  Though it has been completely overlooked, will the precedent set by the 9th Amendment come into play as much as the Equal Protection Clause of the 14th Amendment?  These questions will be answered in a few months when the court’s decision is announced, but it will be felt for ages to come.

Prop 8: Oral Arguments – Audio
Prop 8: Transcript

By Popular Vote
Unconstitutional Proposition


Unconstitutional Proposition

This past week, a federal judge ruled that California’s Proposition 8, which prohibited same-sex couples from marrying after they were already legally allowed to, was unconstitutional.  It was glorious news that spread quickly amongst the community.  But our celebrations were still tempered as we know the quest for equality is still a long way off.  We knew that an appeal would be made by the defeated side and that this does have the possibility of going all the way to the Supreme Court if necessary.

But the verdict, though small in nature and only a ripple in history, has given us positive momentum as it corrects a wrong that was committed by the voters of California.  Since when should it be possible for the will of the majority to be able to take away the rights of a minority?  Where must that line be drawn?

Since 2004, the mindsets of the populace have begun to shift.  No longer do they all necessarily believe all the doom and gloom predictions that they were told.  What has changed all that?  Could it possibly be that many of these people have taken notice of the LGBT community that they interact with on a daily basis….such as neighbors, friends, or coworkers?  That would tend to have the greatest impact on such notions… at least in my mind.  And it is this notification… this personal touch… that can allow an individual to place himself or herself into that of the person they know.  Suddenly, this issue isn’t so black and white.  Now they must return to their own thoughts and opinions and reflect on them.   They might hold their beliefs because of their religion or for various other reasons, but they now see the big gray area that is in between the two sides.  They can now see that they can be religious (or spiritual) and still be for same-sex marriage.  Even though their religion will say they cannot disagree, they are beginning to realize that religion should not be so divisive since God loves us all equally.  But another option that  could also be changing minds is that five states and the District of Columbia have legalized same-sex marriage… and the foreboding warnings that the opposition warned people of have not happened.

Since the verdict, the Republican mainstream has been fairly silent about the verdict.  Is it because the party is having a change of heart?  Not really.  They see the upcoming November election and they are wisely aware that a bunch of anti-gay marriage rhetoric, though it would turn out their core supporters, would turn off the independents and the Democrats that aren’t happy with the Obama administration.  But maybe, they, too, are aware of how much the mindset has changed since Karl Rove used the divisiveness of same-sex marriage to get George W. Bush elected in 2004.

Though to us that must live with this discrimination in our everyday lives, things are not progressing fast enough.  But when looking through the annals of time, the change over the past decade has been quite rapid.  This kind of shift in the mindset of the population has never happened so quickly.  In an age where information flies about at record speeds, it doesn’t take long for one story to hit everyone.  We are able to mobilize and put our voice to the stories that affect us.  No longer can our opposition drown us out.  Now we, too, can be heard.  And we can strike down all the lies and exaggerations that the opposition spreads.

The court verdict that ruled Proposition 8 unconstitutional is only but a small pebble that was thrown into a large pond.  But what comes from such a verdict will continue to spread.  And though this verdict will be appealed, the message is already out.  Judge Walker, who presided over the case, raised the bar of the argument we have been making.  Are we, as members of the LGBT community, full citizens of this country or not?  He framed his ruling around two clauses of the 14th Amendment… equal protection under the law (which was used by the Supreme Court in Brown vs. The Board of Education…which struck down separate but equal) and the right to due process (which was used by the Supreme Court in Loving vs. Virginia to strike down interracial marriage).

The stakes have been raised and the future is coming at us.  We are approaching a fork on the road to the future.  The question becomes which path will our society take… one that leads to openness and equality for all the citizens of this country… or one of divisiveness and second-class citizens.  It is time we, as a nation, live up to our founding principal that we are all equal and deserving of the same rights of life, liberty, and the pursuit of happiness.

“Two roads diverged in a wood, and I — I took the one less traveled by, And that has made all the difference.”

Robert Frost~


It was only last November when we all watched history unfold on election night.  And then, on that very same night, we watched a truth unfold that brought us to our very knees as we watched Prop 8 in California pass by a significant margin.  It was then that we swore never again would we take underestimate our opponents and refused to let it happen again.  When we learned that we’d be fighting for protections in Kalamazoo, Michigan; domestic partnerships in Washington state; and gay marriage in Maine, we responded by saying that we were up for the task and that we would be victorious.  Our opponents would know the true nature of our resolve.  And we could show them that we have the ability to adapt to their tactics yet again.

On this night, we did win our victories in Kalamazoo, Michigan and in the state of Washington.  But we all knew where the big fight was…where everything was being placed on the table.  It was in the state of Maine where we were fighting for our rights to marry.  And once again, we had to sit here and watch as positive returns turned negative and gay marriage was overturned.

We organized a grassroots campaign.  We out-raised and outspent our opponents.  We called people and talked to them on the streets.  From every demographic, we left no one out and took nothing for granted.  And yet, we somehow lost again.  So is there something that we’re not doing?  Is there something we should be doing differently?

This one victory tonight for our opponents will emboldened them yet again to challenge us and our rights in another state.  Sure, we might have won two out of the three contests, but the one we lost was the biggest of the three.  And when it comes to gay marriage, something seems to mobilize our opponents even more.  We must, as a unite community, adapt to their tactics and prevent this from happening again somewhere else.  We have made great strides in 2009, and it is sad that as the year comes to a close, it could not have had a momentous celebration for equality.  But we must not allow these strides to be reversed in the coming year.

I think we did learn our lesson with Prop 8 in California.  We did everything we were supposed to do in Maine.  We just somehow came up short with the votes.  We should make a note that it wasn’t a simple victory for our opponents as it was last year.  This time, it was close.  We can see that our society is changing.  We have to work to keep progressing it.  A slight bump might have been hit, but it has not stopped us or our momentum.  We will continue our drive, we will continue our progress, and we will succeed in the end.

They say that history favors the bold.  Well, there’s nothing bolder than fighting for equality for all citizens…for all people.  Continue to stand strong, continue to fight on and be persistent, and continue to rise up and persevere.  The future will always be in our hands…and is on our side.  Remember that we did manage to post a couple of victories tonight that would have seemed next to impossible just four years ago.  A minor set back tonight can be changed with an even greater victory tomorrow.  So let us not lose hope for we will fight again another day.  I’m reminded of the words of Theodore Roosevelt, “Far better it is to dare mighty things, to win glorious triumphs even though checkered by failure, than to rank with those poor spirits who neither enjoy nor suffer much because they live in the gray twilight that knows neither victory nor defeat.”

Fire from Heaven

It was on February 15, 1898, when the US battleship, the USS Maine, exploded suddenly as it sat in Havana Harbor in Havana, Cuba.  The result of this explosion was the start of the Spanish-American War…and the rallying cry “Remember the Maine, to Hell with Spain!”  But now, a different Maine is on the brink of exploding onto the front pages of history.  And the consequences of this could be disastrous.  The state of Maine, through the republican processes upon which this nation was founded, passed a law that legalized same-sex marriages earlier this year.  It was the fifth state to do so and was a monumental victory for equality.  But the opposition wasn’t about to take this lightly.  Instead, they gathered their signatures and are once again turning this into a situation where majority rules over minority rights.  And why shouldn’t they?  After all, we all watched as Prop 8 passed in California in November 2008, when a majority stripped away equal rights.

In 2009, we have made great strides in equality from coast to coast.  From New England to the Midwest to the Northwest, there have been good people who have been willing to stand up for the greater good of all citizens.  But yet again, all of these strides are under attack from those narrow-minded individuals that think that just because they believe in something that we all should, too.  We sat back and watched Prop 8 pass thinking and believing that it wouldn’t.  This time around we must not be so idle.  We must not take any step for granted.  We must be willing to stand and fight.  These rights are for us and for all those generations that come after us.  We must be willing to put up a defensive position and hold our ground.  We must prove to our opponents that We Can and We Will adapt to their new tactics again and that we will fight for our futures.  A new rallying cry shall come forth…”Remember Prop 8 before it’s too late!”

We are going to fight in Maine!  We are going to fight in Washington!  We are going to fight in Iowa!  We are going to fight in Wisconsin!  Prom coast to coast, we are going to gather in force to hold our ground…to hold our rights…and to push the opposition back to halls from which they came from.  No longer will we allow them to walk all over us.  No longer will we allow them to control our Future and our Destiny.  The time has come!  The moment is Now!  The line is drawn here.  It will be 2009 that history will record as the turning point in the equal-rights revolution.

But none of this can be accomplished without all of us working together for our common future.  We must gather in places like Maine, Washington, Iowa, and Wisconsin to ensure that the voting masses are aware of what is at stake and how they can change history.  We will set the world and heavens on fire this November with our fortitude, our determination, and our courage.  We will show that a new age is upon us – one that brings together all ages and all walks of life that can work together for the greater good of all.

There is no other time and no other moment.  This is when we step up.  This will mark our turning point.  I know that I will be in my place fighting for my rights and yours.  The question you must ask yourself is where will you be?  Are you willing to answer the call of the beating drum to battle?  Are you willing to stand up and fight for your rights?  It is My future…It is Your future…It is All our futures that we are fighting for!  And now let us mobilize – let us defend – let us shock the heavens for ourselves and for our future!

Remember Prop 8 before it’s too late!!

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