short stories / By Ashley Mackin

Circus With a Purpose

(March 26, 2009)  A whole rainbow of human emotion — anticipation, fear, love and hate — could be seen and heard outside the California Supreme Court’s San Francisco chambers during the March 5 hearing to overturn Proposition 8, the ballot measure that changed the state Constitution to ban same-sex marriage.

Signs ranged from the almost clichéd Christian slogans denouncing homosexuality to the nearly equally clichéd photo of a same-sex couple at their wedding, a supportive mother by their side. One sign in particular, ironically, read: “Gays are ignorant, intolerant, anti-American, anti-democratic and hateful.” Children nearly a decade away from voting age donned shirts with the word “sin” and a no symbol over it and carried signs reading “Yes on 8.” Booming through megaphones: “Homosexuality is not a race!” “Protect the children!” “You are giving up an eternity in heaven for sex on earth!”

Inside, as one would expect, the polar opposite to the mobocracy outside: The judges gathered in the courtroom in a stoic and solemn manner to hear oral arguments as to why Prop. 8 should be repealed.

Speaking for the invalidation of Prop 8 were Shannon Minter, Legal Director of the National Center for Lesbian Rights, Raymond Marshall, representing the Asian Pacific American Legal Center, Michael Maroko, an attorney in Los Angeles, Therese Stewart with the San Francisco City Attorney’s office, and Christopher Krueger, representing the Attorney General.

Minter, speaking first, stated to the court that Prop 8 “took away the fundamental freedom to marry, which includes the choice — the constitutionally protected choice — about whether and whom to marry.” He added that by depriving same-sex couples the right to marry, the court “puts those couples in a second class status; it marks them as second-class citizens; it deprives them of equal liberty, dignity and privacy.” Marshall noted that this was the first time that the rights of a minority were being taken away by a ballot initiative.

Unexpectedly, the judges chuckled at each others’ inability to pronounce the word “inalienable” on the first try. As hard a time as they had pronouncing the word, defining it in the context of inalienable rights was even harder, taking up much of the hearing.

The 90-day clock began at the end of the three-hour hearing, after Kenneth W. Starr — famous for leading the Whitewater investigation of President Bill Clinton — argued for the maintenance of the initiative. Now the question is a matter of arcane legal theory: The court has 90 days to decide whether Prop. 8 is an “amendment” or a “revision” to the California Constitution. If the court decides that Prop. 8 is an “amendment” to the Constitution, it will be upheld. If it decides that it is a “revision” — in other words, a deeper and more substantial alteration of the document’s fundamentals — it must be repealed on the basis that it did not follow the proper process to get on the ballot. A “revision” to the constitution must be passed with the approval of 2/3 of the state legislature before it goes to voters; this did not happen in the case of Prop. 8.

As the court’s 90-day deadline approaches, a new ballot initiative is already in the works. The “Yes! on Equality” hopes to put a measure on the 2010 ballot called the California Marriage Equality Act. The measure, which would strike out the infamous 14 words recognizing marriage as strictly between a man and a woman, has been endorsed by Attorney General Jerry Brown. Among other things, it states that the legalization of same-sex marriage does not mean schools would have to teach it, nor would a clergy person have to perform marriage ceremonies that conflict with their beliefs. (For more information, go to yesonequality.com.)

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