Sunday, October 26, 2008

Prop 8, cont.

In June 2003 the U.S. Supreme Court decided Lawrence v. Texas, reversing itself in a 6-3 vote and overturning the Texas statute that criminalized consensual homosexual sodomy.

The gay community had won a major victory. They had tasted a very sweet victory. The media was awash with stories and pictures of gay couples, male and female, embracing, kissing, and generally rejoicing. The gay community was on a roll.

Gay people tend toward exuberance. In this case, it wasn’t irrational. The City of San Francisco started issuing marriage licenses to gay couples.

My own initial reaction was that gay marriage was problematic. Maybe the straights who tied marriage to children had a point, maybe not, but could they be dismissed so easily? I wasn’t sure. Many jurisdictions had enacted civil union laws that addressed the black letter legal discrimination issues gay couples faced. Wasn’t that sufficient?

Didn’t gays understand the political climate in which they lived? As a transgendered woman, I sure did. Couldn’t they see the reaction they would engender among the legions of politically conservative, sexually repressed red-staters? Was that something they could blithely ignore, or did they? Were they just taking a firm, militant stand and declaring that their right to marry was simply non-negotiable?

I thought about this last September when the Democratic House leadership decided that they couldn’t get enough votes to pass a transgender-inclusive ENDA. The gay and lesbian community was split. A lot of them didn’t want to wait for “theirs” while we fought for “ours.” But many others understood that gender expression was their issue too and that without a gender identity inclusive ENDA a sexual-orientation inclusive ENDA victory was hollow and insubstantial.

Eleven months after Lawrence, the Supreme Judicial Court for the Commonwealth of Massachusetts issued yet another landmark decision in Goodridge v. Dept. of Public Health. This one legalized same-sex marriage.

I wasn’t really surprised. Massachusetts is often ahead of the rest of the country, although not necessarily by much. Goodridge was decided 4-3. My own law school criminal law professor had been appointed chief justice by then-governor Mike Dukakis (they’re both Greek-Americans) and I recalled his witty classroom irreverencies. I noticed too the name of the lawyer for the Commonwealth. She had sat three rows behind me in my first-year section. She made law review and was nobody’s fool. But she was no doubt also a good soldier but I wondered how vigorous she’d argued the Commonwealth’s position.

On legal matters I tell people, “When in doubt, read the opinion.” It sounded like good advice here so I read some of the briefs and I read the decision. Legal texts aren’t exactly light reading but sometimes they’re worth the effort. This one was.

The Court analyzed thoroughly every argument, pro and con, ultimately buying into all the arguments made by the proponents of same-sex marriage. They made sense. The other side did not. It was that simple. Basically, denial of same-sex marriage violated every concept of due process and equal protection. The anti-same-sex arguments all boiled down to one thing: religion. That we’d always done it this way. That this is how society’s been for thousands of years. It’s in the Bible.

Fortunately, the Court was firm: Under the Massachusetts constitution and the Establishment Clause of the First Amendment to the U.S. Constitution, religion may not be determine civil policy. Someone please tell that to Tony Scalia.

I felt a little sheepish for having equivocated but it was a valuable lesson. If I could be swayed by prejudice, and I’m a post-op transsexual, what about the Great Unwashed? How could they ever be expected to get it?

And get it they don’t.

One of the untoward but predictable consequences was the media orgy of pictures showing over-the-top gay marriage partners totally out-of-control kissing(!!) on San Francisco City Hall steps followed by the wave of vehement anti-gay backlash expressed in a 2006 raft of anti-same-sex statutes and ballot referenda that enshrined prohibitions against gay marriage in no less than twenty-seven state constitutions. It’s the nuclear option – a prohibition untouchable by state lawmakers, governors and judges.

On the other hand, this year the California and Connecticut state supreme courts followed the Massachusetts lead in decisions that declared same-sex marriage legal in those states. In response, the forces of darkness placed Proposition 8 on the November 4th California ballot. It’s a voter initiative that would add California to the list of states with a constitutional amendment banning same-sex marriage.

Only one state has rejected such a constitutional amendment – Arizona(!!!) – a dyed-in-the-wool red state! Whould’ve thunk it? I’m not sure why.

In April I joined other volunteers on the streets asking people not to sign the ballot petition. We weren’t successful. Now we have to defeat it it the polls, even though there’s a chance that even if we lose the amendment would fail because the proposal is more than a mere amendment – it’s really a “revision,” and therefore can only be effected by either a 2/3 vote in Sacramento or a constitutional convention.

The L.A. Times reports that both sides have spent collectively more than $60 million. The out-of-state money, much of it from right-wing Christian organizations, has closed what had been a comfortable pro-same-sex marriage margin. The race is now too close to call.

I think I understand what the antis are thinking. After all, I used to entertain the same thoughts that drive them, sort of. But I opened my eyes and my mind and I learned better.

Logically, same-sex marriage makes sense. It's the only intellectually honest position. The only argument against it doesn’t stand up to the clear language of the states’ and U.S. constitutions addressing equal protection, due process and separation of church and state. We are not a theocracy – not yet. God help us if that’s what we ever become.

Civil unions don’t hack it either. Marriage is a “fundamental right” for every living person and people just see you differently if you tell them you’re in a civil union rather than a marriage. The denial of equal protection is simply a fact of life and it’s wrong wrong wrong.

I’ve been dating a man for several months now. Last night the subject of marriage came up in conversation. This morning over breakfast he asked me how I felt about it.

My California driver’s license reads “Sex: F.” So does my passport. The Social Security Administration says I’m female. So does the City of New York, which issued me a corrected birth certificate. So I could (if I wanted, and if he were to ask) actually marry this man legally, at least in the State of California – even if Prop 8 were to pass, at least until the yahoos came after me and my community specifically.

Maybe they will, maybe they won’t. In the meantime, hopefully Barack Obama will be elected together with Democratic majorities in the House and Senate, ushering in a new New Deal that will lift the veil of prejudice and repression against gender variance from sea to shining sea. Perhaps the people who passed state constitutional amendments will reconsider and will repeal those amendments. Who knows? Perhaps Newt Gingrich and Bill Clinton will be taking warm showers together. One can only hope.

So this afternoon I’ll rejoin my new MoveOn friends, calling undecided voters in swing states.

Saturday, October 25, 2008

Prop 8 Dilemma

This Election Day, California will vote on Proposition 8. It would enshrine into the state Constitution a prohibition against same-sex marriage, providing that "only marriage between a man and a woman is valid or recognized in California."

In the wake of the ENDA debacle, several bloggers suggest that transsexuals should not be supporting gay marriage. After all, it’s not our fight, is it?

For some transsexual individuals marriage presents no problem. Perhaps the person never plans to marry. Even if s/he does, several states no longer regard a person who transitions to still be his/her birth sex. In those states, a formerly male-bodied person who transitions to female is legally “female” (or visa-versa) and that person’s later marriage to a man (or woman, as the case may be) is not “same-sex.”

But to put it mildly, the laws are not clear-cut. Rather, the non-“same-sex” marriage characterization is merely implied, and usually only after the state issues to the transitioner a birth certificate reflecting their new sex. Curiously, twenty-some-odd states will do this -- more than the number of states that outlaw gender identity or expression discrimination. And so far, new birth certificates are only issued to someone who presents documentary proof that they had SRS. That means a vaginoplasty for MTF’s and usually sometimes something less than a phalloplasty for FTMs.

But beyond that, the anti same-sex marriage lobby has transsexuals in their sights too.

Prop 8 was just one of four proposed anti-same-sex marriage proposals. Another -- one which didn’t make it to the ballot -- would have banned marriage altogether between any two people who both have XX or XY chromosomes.

These wackos didn’t stop there. Their draft would have disallowed marriage for anyone who would alter his or her genes from XX to XY or visa-versa, even though that’s not possible now or even on the scientific horizon! But they’re busy thinking of new and creative ways to keep marriage sacrosanct.

Only Arizona voters have rejected a state constitutional ban on same-sex marriage. Voters in twenty-seven other states have enacted them, usually by wide margins.

In 2002, Californians voted for Proposition 22, another referendum against same-sex marriage. But Prop 22 wasn’t for a constitutional amendment. It was for a mere law, and this past May the California Supreme Court struck down that law as unconstitutional because (i) it denied a fundamental right (marriage) to some people and (ii) it violated the right to equal protection of the laws. By the way, it was a close (4-3) vote.

So now the proponents are putting the same language to California voters as a constitutional amendment because only a constitutional amendment is immune from legislative, judicial and executive meddling (the latter by a governator.)

Well, sort of. California has a curious constitutional amendment procedural wrinkle that ensures this fight won’t be decided for good this November, no matter how the people vote.

It has to do with whether Prop 8 is an “amendment” or a “revision.”

An “amendment” can be enacted by a mere 51% vote of the electorate. On the other hand, a “revision” requires either a 2/3 vote of the legislature or a constitutional convention. That hurdle is a lot higher than a mere majority vote by knee-jerk voters, or as the Founding Fathers called them, “the rabble.” This is why we have a republic – not a democracy. Hmmm….

If Prop 8 passes, the LGBT community will ask the California Supreme Court to rule that Prop 8 is really a “revision” because it’s so far-reaching and therefore shouldn’t be decided by the voters in a referendum, especially one that can be won by a mere majority vote. Prop 8 proponents (the Religious Right) will argue the opposite.

But back to the present.

In 2002, Proposition 22 passed with sixty-one percent of the vote. That’s nothing to sneeze at. Among Latinos, the percentage was even higher -- more than 70 percent. That’s approaching pneumonia. Similar opinions were expressed in a July survey of 672 likely voters in California.

The Prop 8 campaign is looking to an ecumenical coalition of religious groups to get out the vote against same-sex marriage. Beyond that, they’re counting on Latino voters to put Prop 8 over-the-top. According to a statewide Field poll, 49 percent of the state’s Latino voters said they’d support the amendment, compared to 38 percent who’d vote against it. 13 percent were undecided.

Jennifer Kerns, spokeswoman for the Yes on Prop. 8 campaign, told the Inland Valley Daily Bulletin, "Given their participation in the 2000 election with Prop. 22, the support of the Latino population is critical to the effort. They are a community that is extremely passionate about this issue. At least from what we've seen, they are very committed to upholding the definition of marriage as being between one man and one woman."

There’s no reason to doubt her. According to lsa Valdez, a sociology professor at Cal State San Bernardino, "Latinos are very conservative on same-sex marriage because of the strong influence of the Catholic Church.”

Many Latinos come here claiming asylum from discrimination in their home countries. Of all of them, it’s been my experience as an immigration lawyer that only the gays and transsexuals have rock-solid claims. So why are LGBT groups (and Latino gays and trannies) such fervent supporters of Latin American immigration when the people they champion overwhelmingly hate their guts to the point where Latino immigrants may swing the constitutional referendum against them?

The immigration issue is a burning hot-button, sure to evoke strong feelings whenever and wherever it’s raised, but it has particular poignancy within our community.

It’s not difficult to understand why Latino gays and transsexuals have an identity of immigration interest with their compatriots, but it’s fair to ask whether it’s in our interest (or theirs) to help recreate here the same appallingly repressive conditions they came here to escape.