Despite the sunny weather, the mood outside the California Supreme Court turned bitter this morning, with marriage-equality supporters and anti-gay marriage supporters exchanging verbal jabs, as news spread that the justices had upheld Proposition 8, a voter-approved ban on same-sex marriage that state voters passed in November.
Initially, this bitterness wasn’t mitigated by the court’s other piece of news, namely that the justices had, however, decided to validate the marriages of the estimated 18,000 gay couples who got wed before Prop. 8  took effect.
By noon, the marriage equality movement appeared to have regathered its composure as its leaders vowed to hold rallies, starting tonight, and to go to the voters in November 2010-- timing that has profound implications for Democratic and Republican 2010 gubernatorial hopefuls
But lest anyone underestimate the polarizing nature of the emotions and beliefs on display outside the Court today, here is a brief snapshot of some of the exchanges that took place today:
“Love is unconditional!” yelled a glitter-festooned Pan Gaea, wearing a long skirt and stripper heels and standing directly in front a small knot of American River College students, who were holding up a huge Proposition 8 banner, outside the court, just before the justices issued their 6-1 ruling.
“I want my friend staying married, I don’t want homophobia taking away my rights,” Pan Gaea continued, jumping into the air and landing with a loud click of stripper heels, next to Luke Otterstad and George Popko, who are both at the Sacramento-based American River College, whose student body voted last fall to endorse Proposition 8.
“Can you handle this, yea-ah?” Pan Gaea added, showing off the stripper heels to the unwilling ARC students. “ I don’t think you’d be able to balance on these and jump on one foot on a stiletto. I don’t think so, because it takes talent and a lot of balance.”
Just then, a chant of “Shame on you!” rippled through the crowd, diverting Pan Gaea’s attention to the court ruling, details of which were being spread through the waiting crowd by gay rights activists like Ronnie Mason, who confirmed that, yes, the justices had just ruled against marriage equality for all.
“But 18,000 people are still married,” added Mason, searching for the situation’s proverbial silver lining.
“They’ll get divorced,” Otterstad countered.
“We knew the Supreme Court would uphold Prop. 8,” Mason continued, appearing not to have heard Otterstad’s jab. “But marriage equality is going to happen. It’ll take more canvassing. A lot of people who voted yes on Prop. 8 were not sure what they were voting on. So, we have to keep moving forward and build a grassroots movement that goes door to door, especially in cities with low voter turn-outs and the Central Valley. So, there is a glimmer of hope that we are just holding onto as we look for a little bit of help to propel us forward, because it has been a hopeful twelve months, what with Milk the movie coming out, and Obama being elected president.”
And then Mason circled back to Otterstad’s comment about divorce.
“This guy said the 18,000 people still married will get divorced,” Mason said, eying Otterstad. “but who has the highest divorce rate? Straight people.”
“These people,” interjected Mason’s friend, Gage Tucker, “don’t understand the implications of this ruling for thousands of queer students who will kill themselves because of this ruling.”
And then Tucker attacked religion head-on, quoting James Madison, 4th president of the U.S, who famously said, “What has been the fruits of Christianity? Superstition, bigotry and persecution."
ARC student George Popko replied to this swirl of comments, by saying that he’d come to “defend the California Constitution” and to “uphold the voice of the student body at our college.”
“You self-righteous pig!” yelled a pissed-off gay activist.
“Do you have any guilt that this kind of legislation causes suicide?” yelled another.
“Obviously, it’s a sad thing in this society when anyone commits suicide, but I view that comment as a way to divert the conversation from the consequences of homosexuality,” Popko replied.
“People are taking their lives because they are being invalidated by people like you,” shouted another gay demonstrator.
“They are taking their lives because homosexuality is such an unhealthy lifestyle,” Popko maintained. “Homosexuality is inconsistent with our identity as a human being.”
“Have you any idea of the true history of Christianity?” yelled another Popko detractor, launching into a tirade that began with the Spanish Inquisition and led from the Catholic Church’s maltreatment of Native Americans and slaves in the last century, to ongoing revelations that it failed to address child molestation in its midst.
“I am a Christian,” Popko replied, “and I think that divorce and slavery and molestation are wrong. But I don’t see you out here advocating against genocide in Africa.”
“We ARE against genocide,” retorted the angry crowd. And so it went on.
Inside City Hall’s South Light Court, a more rarified atmosphere prevailed as San Francisco City Attorney Dennis Herrera sought to rally the anti-Prop. 8 crowd.
Noting that in the last five years, since what Herrera described as “Mayor Gavin Newsom’s principled decision” to marry same-sex couples at City Hall, "supporters of marriage equality have both celebrated and consoled each other," Herrera continued. “We’ve come to know that no one what has been part of this struggle will ever stop fighting for equality.”
“Today, we’re faced with a disappointing decision,” he added, acknowledging that at least the “cruel effort to unmarry 18,000 legally wed couples failed.”
“I know they’ll be a lot of disappointment, perhaps even anger," Herrera said. "But the courts deserve respect for the difficult work they do. What should set us apart from our opponents is that we do not vilify judges with whom we disagree. Today’s ruling doesn’t mean marriage equality will never come. It means that, in the end, we can’t rely on the courts to give it to us, but on all kinds of leaders, not just lawyers. The final decisive round won’t be here in the legal arena, it will be won in the electoral arena. The fight remains in extremely capable hands, and when we achieve at the ballot box what we couldn’t achieve today, you’ll all be invited back to City Hall, and I hope and expect it won’t be very long.”
Kate Kendell, Executive Director of the National Center for Lesbian Rights, told the crowd that it is, “Important to square the elation we felt just a year ago, with the grief we feel today. It’s important to reconcile the court’s ruling then with its upholding Prop. 8 today. In doing so, we see that the court tarnishes that record and diminishes its own legacy as a champion of fairness.”
“We have already seen a sea change in public opinion about the rights of same-sex couples,” Kendell continued, alluding to the fact that same-sex marriage is now legal in Iowa, Maine, Vermont, Massachusetts and Connecticut. “California has been at the forefront [of the same-sex marriage movement] and mark my words, we will be there again.”
Raymond C. Marshall of Bingham McCutchen on behalf of civil rights groups, including the Asian Pacific American Legal Center, the California State Conference of the NAACP, the Equal Justice Society, and the Mexican American Legal Defense and Education Fund, noted that it was “ironic to have a president who is African-American, who this morning nominated to the highest court in the land a Latino woman on the same day that the California Supreme Court takes away from same-sex couples the most fundamental civil right the right to marry."
“Promising equal treatment to some is fundamentally different from ensuring truly equal treatment for all,” Marshall said. “It’s sad the court has taken this decision. To discriminate against one group is to put at risk all Californian citizens. What we have lost, I believe strongly, we will win at the ballot. Yes we can, yes we will, have the right to marry as gays and lesbians. History is on our side.”
Elizabeth Gill, Staff Attorney for the ACLU's LGBT & AIDS Project, said the California Supreme Court’s decision diminished its own legacy as a champion of equal rights.
"This affects us all,” Gill said. “We can win the right back. We’ll have to do it politically. It’ll take a lot of work, so let’s all go do that.”
Eva Paterson, President, Equal Justice Society, put things more bluntly.
“They’ll look back at this as a shameful, shameful day,” she said. “How could the court get it so wrong? How could they be so cowardly? But it’s going to be OK. So grieve and relax today, then get up tomorrow and get fighting.”
Then Geoff Kors, executive director for Equality California, showed up to outline his group’s “what’s next?” plan.
“The court has ruled and said, we’ve got to go back to the voters,” Kors said, identifying November 2010 as their target ballot date. “We believe the political dynamics and momentum are there,” he said.
“It’s easy to introduce a ballot initiative, it’s difficult to win,” he added, noting that September 25 is the deadline to submit a new ballot initiative with the Secretary of State for the 2010 election. “So, we have four months to create a campaign structure, find funds and create a plan. I’m confident we’ll be successful, if we all come together,
Andrea Shorter, Coalition Coordinator, for Equality California, added that there’s been a “dramatic shift towards same-sex marriage equality in the past five years, so today’s decision sets California back.”
“The ‘win marriage back campaign’ is not just talking about same-sex marriage, it’s about making LGBT couples feel welcome,” Shorter continued, noting that her organization already has two advertisements teed up, featuring “real LGBT families,” and that they would be targeting Los Angeles, the Central Valley, the Inland Empire, San Diego and Sacramento, in the next round in the battle for marriage equality.
‘In the first 100 days, there will be volunteers knocking on 40,000 doors and we’ve already hired seven of 20 full time operatives to win marriage back,” she said. “Domestic partnerships and civil unions are not marriage.”
And then Rev. Rick Schlosser, Executive Director, California Council of Churches, noted that he can’t come back into San Francisco City hall without thinking of the day, five years ago, “that my husband and I were married.”
“As a person of faith, I am speaking out, because justice was denied today,” Schlosser continued. “People of faith throughout California will speak out. We know the arc of history bends towards justice. We cannot stand by and let gross and well-funded religious organizations write their theology into our constitution. And today’s decision writes inequality into my California constitution. This discrimination is a slippery slope, and authentic religion is about love, compassion and reconciliation. Never assume that all people of faith are against us.”
And then there was time for a few questions with the press in which it was more clearly determined that a constitutional amendment is also required to establish that the rights of any minority group cannot be taken away, wily nily, simply because the majority voted for a ballot initiative.
And that was interesting because today’s California Supreme Court’s 6-1 decision, written by Chief Justice Ron George, rejected the argument that the ban revised the California Constitution's equal protection clause to such a dramatic degree that it first needed the Legislature's approval.
The court said the Californians have a right, through the ballot box, to change their constitution.
"In a sense, petitioners' and the attorney general's complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it," the ruling said.
The justices also said that today’s 136-page majority ruling does not speak to whether or not they agree with the voter-approved Proposition 8 or "believe it should be a part of the California Constitution."
The justices further noted that it is well-established legal principle that an amendment is not retroactive unless it is clear that the voters intended it to apply retroactively, and there was no such clear indication in Proposition 8. That ruling provided relief for the 18,000 gay couples who married in the brief time same-sex marriage was legal last year--but was a reminder that the struggle for justice and equality is not over.
As Assemblymember Tom Ammiano put it today, “Prop. 8 is a stark reminder that the struggle for equality and justice must and will go on. We have come a long way since the days when Harvey Milk and I fought against the discrimination of the Briggs Initiative and Proposition 8 was no different. Harvey's message then was one of hope and we can see how that message is making progress throughout the country - five states now embrace marriage equality and several more are on the verge. History has shown that equality cannot be denied to any group and it is only a matter of time before justice prevails. I encourage the supporters of same sex marriage to engage in peaceful, focused actions and we will transform the anger that is felt today into a successful message of political change. The decision today only strengthens my commitment and resolve to restore equality for all Californians.”