Issue:  Vol. 48 / No. 3 / 18 January 2018

Breaking: Californians express frustration that Prop 8 still stands


San Francisco Chief Deputy City Attorney Therese Stewart said she is nervous about the U.S. Supreme Court's decision to hear the federal Prop 8 case. (Photo: Rick Gerharter)
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San Franciscans who have been closely involved in the fight for marriage equality these last nine years expressed frustration Friday that same-sex couples in California remain waiting at the altar to exchange their wedding vows.

Many had hoped that the U.S. Supreme Court would not hear an appeal of lower court rulings that the voter-approved ban against same-sex marriage, known as Proposition 8 and passed in 2008, is unconstitutional.

"This was something they didn't have to hear. They could have let Prop 8 be defeated and give marriage back to Californians," said Kelly Rivera Hart, a gay man active since 2004 with the advocacy group Marriage Equality USA.

Gay state Assemblyman Tom Ammiano (D-San Francisco) echoed that sentiment.

"It's a bit disappointing that the Supreme Court isn't already kicking Prop. 8 to the curb, but I'm hopeful that they will do that after hearing arguments," stated Ammiano. "We can also hope that this court decides that it's time to say, once and for all, that denying this right to same-sex couples is just as unconstitutional as denying marriage to mixed-race couples - a decision made decades ago."

Until recently Hart had been advocating for same-sex marriage as a single man on behalf of friends in committed relationships denied the right to wed. The issue has of late become uniquely personal, as Hart is now dating someone.

"I am in a new relationship and I want the option if or when it gets serious to ask him to marry me," said Hart, who plans to travel to Washington, D.C. to attend the oral arguments before the Supreme Court. "Since 2004 that part has not been there for me."

He also expressed doubt that the court's ruling would be favorable for LGBT couples.

"My gut feeling is this is not good with the present makeup of the Supreme Court," he said.

Others expressed optimism that the justices would side with same-sex couples.

"I am gratified and confident that the Supreme Court will reach the same results as the district court and the circuit court did," said San Francisco City Attorney Dennis Herrera at a news conference at City Hall as straight couples exchanged wedding vows nearby under the landmark building's rotunda just as same-sex couples had done back in 2004 and 2008.

Speaking of the attorneys working to see same-sex marriage be legal again in California and nationwide, Herrera said, "The confidence level of all of us is high."

He added that he is disappointed same-sex marriages will not resume immediately in the Golden State and that that day has been delayed again.

"We have seen the ups and downs, the high and lows," said Herrera, whose office has been litigating the issue of marriage equality since 2004. "It is only a matter of time before we reach over that final hurdle. I have every confidence by summertime we will be over that final hurdle."

Therese Stewart, the deputy city attorney who has argued the city's cases in court, hedged a bit when asked how confident she is that the nation's highest court will rule in the plaintiffs' favor.

"Yeah, we are nervous. You never like to be waiting for the Supreme Court to decide something. But I am optimistic," said Stewart, who married her longtime partner, attorney Carole Scagnetti, in 2008.

Adding that she "would be lying if I didn't say I was a little disappointed" with the court's decision to hear the Prop 8 appeal, Stewart said it is only a matter of time before same-sex marriage is the law of the land.

"It is the fight of our lives," she said. "At the end of the day, we will prevail."

California Attorney General Kamala Harris, whose decision not to defend Prop 8 in court partly led to the legal wrangling over whether the Yes on 8 campaign had standing to bring forward the federal case, said she will be asking the country's 49 other state attorneys general to join with her in filing an amicus brief with the Supreme Court asking it to uphold the lower courts' decisions.

"I have to believe this court will do the right thing," Harris told reporters at the City Hall press conference.

She noted that as same-sex couples have been waiting for Prop 8 to be overturned, "babies have been born, family members have died." She said it is "outrageous" that a group of Americans is denied the same rights that their fellow citizens enjoy.

"I have to believe this court will do the right thing," said Harris, who married gay and lesbian couples back in 2004 when she served as San Francisco's district attorney.

Pointing to the U.S Constitution's proclamation that all Americans "are created equal," Harris said the question facing the nine justices is if they will apply that truism to LGBT citizens.

"If we are true to our ideals, we will allow same-sex couples to marry," said Harris.

As for the standing issue in the case, she said it is "the weaker of the two" questions the court will be grappling with.

The standing issue in both the Prop 8 case and the New York Defense of Marriage Act case is likely of concern to the court's more conservative justices, surmised Stewart, as it strikes at the heart of states' rights. They have viewed Article III in the Constitution "narrowly," said Stewart, and may disagree with both the circuit court's and the California Supreme Court's rulings granting standing in the case to the antigay groups.

"I think they are very skeptical of letting people who don't have a real injury come into court and want jurisdiction. It is taking away power from the states," she said.

The court tends to issue its landmark rulings in June, raising the likelihood that its decision on marriage equality will be announced during Pride month.

"The timing could be auspicious, as the end of June corresponds with worldwide Pride celebrations," noted John Lewis, who with his spouse, Stuart Gaffney, was party to the California same-sex marriage case that led to the ballot fight over Prop 8.

"If we get good news in June, then the celebration is already planned," added Gaffney.

LGBT leaders vowed to carry on their fight for equal rights, even if they are not successful legally.

"Same-sex marriage is going to be a reality throughout this country," said gay District 9 Supervisor David Campos, who opted not to marry his partner of 16 years, Phil class=st> Hwang, prior to the 2008 vote due to his running for a board seat that year.

"This battle is for from over," added City Treasurer Jose Cisneros, who has been with his partner, Mark Kelleher, 21 years.

They did not marry in 2008 or in 2004 and have not decided if they would next year if the opportunity arises.

"That is a decision we will make when we have the option to marry," Cisneros told the Bay Area Reporter . "The fight continues. What is comes down to is this is a long way from being done or over."

Gay District 8 Supervisor Scott Wiener also suggested that the LGBT community would return to the ballot box to overturn Prop 8 should the Supreme Court uphold the law.

"We will do it the old fashioned way – democratically," he said.

Should it come to that, Herrera predicted that voters would undue Prop 8.

"If it was on the ballot again, the result would be quite different," he said.

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