Prop 8 Decision: How to Strike Balance Between Majority Rules and Minority Rights

A 6-to-1 decision this week from the California Supreme Court ruled against the American Civil Liberties Union in Strauss v. Horton, recognizing same-sex partnerships with many, though not all, of the legal rights of marriage. The official court opinion upheld the validity of Proposition 8, which was adopted by California voters last November, including a new section (7.5 to Article I) in the California Constitution: “Only marriage between a man and a woman is valid or recognized in California.” That decision was hailed by opponents of same-sex marriage, such as ProtectMarriage.com, but it left supporters of gay marriage hanging as the next stage in their fight against Prop 8 begins. Equality California and the Courage Campaign are working to take the issue back to the ballot box – to repeal Prop 8 – while conducting statewide polls to gauge peoples’ attitudes on same-sex marriage.

Last year the American Civil Liberties Union, National Center for Lesbian Rights, and Lambda Legal filed a lawsuit challenging the validity of Proposition 8 in the California Supreme Court on behalf of six couples and Equality California. That legal challenge consists basically of three points:

1. Prop 8 is a revision, not an amendment, of the states' constitution, and therefore requires either a two-thirds vote of each house of the state legislature and a vote of the people, or a constitutional convention and a vote.
2. Prop 8 may violate the principal of trias politica, or separation of executive, legislative, and judiciary powers.
3. The “inalienable” right to marry cannot be determined by majority vote (unless, according to the attorney general, there is state interest in doing so).

Former California State Senator Sheila Kuehl was the first openly LGBT person elected to the California Legislature. She commented on the ruling, arguing that the court lost its way issuing this “slim and dishonest statement that same sex couples are not denied legal rights by denying them the ‘word’ marriage. The Court errs.”

Others agreed. The San Francisco police department alone reported arresting some 200 protesters, most of whom are members of One Struggle, One Fight, a civil rights coalition using civil disobedience.

Assemblyman (and gay rights activist) Tom Ammiano also decried the court's move as a reminder that “equality cannot be denied to any group and it is only a matter of time before justice prevails.”

ACLU head Anthony Romero indicated that the setback was particularly odd in light of “a recent Iowa Supreme Court ruling saying that it is unconstitutional to keep gay couples from marrying – and the passage of laws opening marriage to everyone by the Vermont and Maine legislatures.” Romero concluded that public support for marriage for same-sex couples is gaining ground, but California is being left behind. Romero spoke at The Commonwealth Club recently, highlighting the ACLU's challenges to the U.S. Patriot Act, litigation on the torture and abuse of detainees in U.S. custody, and challenges to the Bush administration’s illegal spying program. (Romero was the inaugural speaker in The Club's series on The U.S. Constitution in the 21st Century.) He is also the first openly gay man (and the first Hispanic) to serve as director of the ACLU. Romero and the ACLU argue that the Prop 8 debate is unique: The first time a ballot initiative has been used to change the California Constitution and strip away existing right for a particular group – a “suspect class.”

Antidiscrimination law is a cultural thread that defines progress in American society: A nation’s ongoing attempts to mitigate oppression of cultural minorities and compensate for systemic disadvantage, exploitation and injury. Tension between constitutionally protected civil liberties and the democratic mandate of majority rule also exploded during early deliberations that led to the Brown v. Board of Education decision, which was also fraught with conflict over whether popular opinion could deprive a minority of a constitutional right. Jusitice William Rehnquist’s court memos explored this key question of “Whether, in the long run, it is the majority who will determine what the constitutional rights of minorities are?”

As for the Fourth Estate, The Commonwealth Club also explored media coverage of Proposition 8 and its aftermath (Wednesday, April 15), highlighting the work of gay journalist/blogger Rex Wockner, Cynthia Laird, of the Bay Area Reporter, Equality Camp organizer Cathy Brooks, and Sandip Roy, from New America Now (KALW).

--By Andrew Shaw

"Hip Hop Intellectual" Wants More from Obama on Race

Michael Eric Dyson has no problem following a quote from Frederick Douglas with a shout out to Snoop Dogg. In fact, it's one of the reasons he is considered by some to be one of the most thoroughly thoughtful and entertaining intellectuals in America and when it comes to race, there are few who see the subtle cues and put downs more vividly than Dyson.

Speaking at the Commonwealth Club of California, the Georgetown professor and noted author on race, both excited the crowd with searing rhetoric reminiscent of an old time preacher along with hip-hop soliloquys of rap's most provocative lyrics. His thoughts on the place of an African-American in the White House may have caught some off-guard, though. Dyson, while thrilled to have President Obama in the Oval Office, believes he fails to confront race fully.

“He is forced into sometimes-narrow considerations. Pocket of reserve and critical reflection when it comes to issues of race, class and culture. Obviously, he doesn't want to be painted into a corner of being the black president. Ain't nobody going to miss he's a brotha. Just look at the way he walks to Air Force One,” Dyson said while mimicking Obama's soulful strut. He also accused the president along with society of failing to cozy up to the ongoing issue of race. “Blackness has been the disturbing, formidable presence of a negative that not be totally eradicated. So, we are uncomfortable with it -- the president, I would add, too.”

Much of the night featured Dyson issuing poignant comic jabs at the president, Rush Limbaugh and the role of Michelle Obama. He lamented the sorry state of the U.S. economy just as Obama took office when he quipped, “Of course they would hand a brotha a key to a sinking ship.” and added. “It's good that we have an African-American president, I think at this particular point. Like Tupac [Shakur] said, 'A brotha know how to make a dollar out of fifteen cents.' He certainly will have to make much more from far less.”

Recent calls by Republicans of reverse racism levied against Obama's Supreme Court nominee Sonia Sotomayor for citing her Latina heritage struck Dyson as ridiculous, as he charged Limbaugh of piling on a historically marginalized race and gender. He said her racial background is a positive. “Rush Limbaugh goes on his warpath and says, 'What do you mean? That's reverse racism!' It's the former racism that I'm worried about,” said Dyson, “Taken out of context — looking like the woman is out to be playah hating on white men, that ain't the point. The point is, if you've been dominated, it's often been rendered irreversible, therefore, invisible. Not seen, Mr. Limbaugh.”

With Tuesday's ruling from the California Supreme Court upholding the state's ban on gay marriage still on many minds, Dyson discussed the opponents of Proposition 8 and their linkage to the plight of blacks in the Civil Rights Era. He noted some African-Americans do not take the co-opting of their struggle by gays lightly, but points out the Civil Rights movement was heavily borrowed from Mahatma Gandhi's principle of non-violence. Dyson admitted that the eradication of homophobia from his mind is still a work in progress and views homosexuality in physiological terms.

“When do you choose to be heterosexual?,” he said, “At seven years old, you rode on your mama and said, 'Look, I'm going to need me a Corvette and a black book because I'm going to be macking the ladies and a decent basement, so when we come down here, it's going to be looking good'.”

Perhaps surprisingly, he lauded the rise of Michelle Obama as the “Mom-in-Chief” as a significant breaking of racial stereotypes regarding black women, but only to a certain point. “The momification of Michelle Obama nullifies the narrative of the black woman as a reckless mom — the welfare queen. She just juxtaposes that. She's a super-heroic figure,” he said. “But her mama is in the crib, too. A lot of so-called welfare queens don't have mama in the crib and, if she does, mama has children, too.” He also referred to Queen Elizabeth's notable breaching of protocol when she touched Michelle Obama's arm and in a tongue-in-cheek manner envisioned the first lady's future presidency.

“I think Michelle Obama is an extraordinary person,” he said, “I think when she becomes president she'll find Bin Laden the first week."

State Supreme Court Takes up Prop. 8

California’s Supreme Court is hearing arguments on Proposition 8, in San Francisco this week, in the Earl Warren Building courtroom on McAllister Street. San Francisco Mayor Gavin Newsom was a prominent and vocal opponent the 2008 ballot initiative to eliminate the right of same-sex couples to marry. Seating in the court is limited to 20, but you can watch the proceedings online here.

Barack Obama is rumored to have declined a photo op with Newsom during his visit to SF, not wanting to be seen posing with the same-sex-marriage-friendly mayor.

But Prop. 8 hearings aren’t the only reason Newsom is back in the family values spotlight. Criticism of Newsom reached a new height recently as the mayor and wife Jennifer Seible announced that they will be having a child.

San Francisco Chronicle writer, Erin Allday wrote Thursday, February 19, “City Hall chitchat has turned to how this might play in Newsom's run for governor. Analysts say that starting a family can only help the campaign -- and maybe reverse Newsom's long-standing playboy image.”

The baby announcement prompted Guardian Editor Tim Redmond to offer family advice too. “If the mayor, or the president, or the school superintendent, or the school board members, or the supervisors choose private schools, then they're saying that public education is good enough for the poor kids, but not for their own.”

Facing a tumultuous economic climate and a massive city deficit, Mayor Newsom has tough decisions to make in 2009. In his quest to keep San Francisco a thriving center for commerce and a livable city, Newsom’s had trouble meeting some campaign promises, and he is moving forward with staff cuts, opting for 1100 layoffs in the last 7 months (300 last week).

With a potential 2010 run for governor in his future, Newsom is also on the hook for stewarding some of his favorite issues -- homelessness, universal health care, and MUNI reform -- through the current recession and state budget mess.

Dispelling myths behind celebrity politicians can be a real challenge. Try your hand, and listen to Newsom’s recent appearance on KQED Radio. Or better yet, hear from the mayor directly here at The Club. Newsom will sit down for a frank and candid discussion about the issues facing the city, with Scott Shafer, host of KQED’s California Report, 6:30 p.m., Wednesday, March 11th.