Marriage equality was merely the context of the recent marriage equality cases before the US Supreme Court. Neither case addressed the fundamental right of same-sex couples to marry. The content of both cases was discrimination, challenging laws that treated citizens unequally. Since the legacy of both rulings is not issue specific, there is huge impact towards a more just society for all.
The recent refusal of The Supreme Court to rule on the Proposition 8 case left standing the decision under appeal of the 9th Circuit Federal Court. In an absolutely brilliant and comprehensive analysis, Judge Vaughn Walker overturned Prop 8 declaring it to be unconstitutional under the 14th Amendment of the U.S. Constitution. Established right after slavery, it insures equal protection under the law by prohibiting states from enacting laws, through legislation or the ballot, that infringe upon the rights of its citizens. Prop 8, the largest initiative in U.S. history, had an unprecedented amount of support on both sides. Amicus (Friends of the Court) briefs, submitted on behalf of overturning Prop 8 spanned an extremely wide array of supporters including the U.S. Justice Department, Mexican-American Legal Defense Fund (MALDEF), and the California Coalition of Churches. The support was partially about marriage equality, but primarily motivated by the dangerous threat Prop 8 was to minority rights.
The 4tharticle of the Defense of Marriage Act (DOMA), defines marriage as being between a man and a woman. Under this provision, the Federal Government has been denying approximately 1,100 federal benefits to legally married same-sex couples that it has been granting opposite-sex couples. The surviving spouse benefits include social security and exemption from inheritance taxes. The federal case, Windsor vs U.S., ruled this violated the 5th Amendment of the U.S. Constitution, prohibiting the Federal Government from denying rights without due process. Not yet tried is the aspect of DOMA that allows states to not honor same-sex marriages of other states. Hence, a couple legally married in their home state would not be related once they cross the border to a state that does not recognize their marriage.
Once again, in both marriage equality cases, the freedom to marry was merely the context. The real content was about freedom from discrimination. What has been on trial in these cases is justice, not marriage equality which is a battle still to be fought. The rulings do, however, reinforce protections for all US citizens from unfair treatment. Essentially, what was on trial in the Prop 8 case, Hollingsworth vs Perry, was the intent of the initiative. Prop 8 was not just any law; it was an amendment to California’s constitution that carved out the pre-existing rights of some of its citizens. Was Prop 8 really about removing any legal ambiguities about marriage by clearly defining it as being between a man and a woman, or was it about rescinding the right of same-sex couples to marry?
California is unique in this regard. In May 2008, the California Supreme Court ruled that the freedom of same-sex couples to marry was a pre-existing right under the state’s constitution that had been unduly denied them. The state’s constitution guarantees equal protection under the law and non-discrimination based upon sex. Some applicants were denied marriage licenses solely because of their sex. During the entire Prop 8 campaign same-sex marriages were already taking place. Hollingsworth vs Perry was not about the freedom to marry being granted, but the freedom to marry being taken away.
The ruling against Prop 8 determined that the Prop 8 campaign deliberately attempted to marginalize same-sex couples. Its defeat protects vulnerable citizens from the transitory winds of public opinion and reaffirms that no populace has the power to vote away constitutional rights. For the safety of democracy, it needed to be overturned. Legally, its defeat is not so much about marriage as it is protecting the rights of the minority against the majority. If the Prop 8 precedent remained anything could happen, such as the public voting to not publicly educate children born on US soil if their parents are non-documented, or to ban non-Christians from holding high governmental positions. I know that Prop 8 proponents are frustrated feeling like their vote doesn’t matter. They fail to understand that they didn’t have the right to take away someone else’s rights. Furthermore, Prop 8 opponents think it is all about marriage and are failing to see their efforts as championing justice for all. Let’s proclaim we are One, not we won.
Rev Deborah L. Johnson, a lifetime social justice activist, is founding minister of Inner Light Ministries in Soquel, CA. www.innerlightministries.com