Democracy in America suffered a major setback Tuesday, May 26th. The California State Supreme Court ruled that some people because they are gay or lesbians or bisexual or transgender do not have to be treated the same or deserve equal status as others.
In the case of Strauss v. Horton, the state Supreme Court upheld a narrowly passed statewide referendum (Prop. 8) that took away rights granted to lesbian, gay, bisexual and transgender people wishing to marry. It may be the first time a state actually deleted rights, setting a dangerous precedent that leaves no fundamental Constitutional right safe from legal challenge.
Ironically, the same court ruled in 2008 that marriage was a basic civil right that could not be denied to anyone on the basis of sexual orientation. Now that principle has been discarded. The ruling appears to uphold the long-repudiated legal philosophy of "separate but equal," by attempting to create separate legal categories for different groups of people, based solely on sexual orientation.
Such a ruling flies in the face of the ideals of the democratic traditions in our country, which see ever-expanding inclusion of people in civil society.
The small bright spot in this legal fiasco is that the court agreed to continue to recognize the some 18,000 marriages affirmed during the one year period of marriage equality.
The California decision contrasts with the growing trend across the country that is leaving anti-gay basis behind. By September 2009, Massachusetts, Connecticut, Iowa, Vermont and Maine will have granted full marriage equality rights. Five additional states, including California, will have provided some separate, unequal status for same-sex couples. Both New Hampshire and New York are considering laws that would grant marriage equality. Washington DC and New York are close to recognizing same-sex marriages entered into outside those jurisdictions.
For the first time in our history, more Americans support marriage equality than oppose it.
In the landmark US Supreme Court ruling in the 1954 Brown v. Board of Education case, the court unanimously agreed that the doctrine of "separate but equal" violated basic Constitutional principles of equal protection before the law. These principles cannot voted down by Congress, one state or by one state court. They are fundamental.
Thirteen years later, the US Supreme Court ruled in the case of Loving v. Virginia, that "marriage is one of the 'basic civil rights of man.'"
While the California decision in this case is a victory for those who continue to hate gay people, it is also a launching point for a renewed movement for equality across the country. It is a movement that will not stop until full equality for all people is guaranteed.
While democracy suffered a setback in America on Tuesday, May 26th, the forces for democracy and equality have never been more determined and united.
