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.