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GAY SAN DIEGO
August 13-August 26, 2010
GUEST COMMENTARY
By Toni Atkins As I write this, we are waiting
to hear Judge Vaughn Walker’s decision regarding the stay and whether committed gay and lesbian couples will again be able to marry, as the next chapter in our right to marry in California unfolds. [Ed. note: On Aug. 12— prior to publication but after this column was submitted—Judge Walker announced he would lift the stay on same-sex marriage in California on Aug. 18.] We all know of the incredible legal work performed on our behalf by attorneys Ted Olson and David Boies to bring forward Per- ry v. Schwarzenegger. We know how dedicated San Francisco City Attorney Dennis Herrera has been in this fight, along with his
staff attorney Therese Steward. We remember when they came to San Diego to testify before the San Diego City Council in 2007. It was Dennis Herrera who made the call to our own Mayor Jerry Sanders to ask him to testify in the federal case. San Diego continues to play its own significant role in this march to equality. On the day the historic decision was made, Mayor Jerry Sanders reminded every one of us at The LGBT Center’s celebration that we have played an important role each step of the way to gain full marriage equality. I know he is right.
I’ve watched LGBT communi- ty members and our friends show up again and again—to march and rally, to give money, to walk door to door, to talk to voters and to testify before the City Council. And much like the simple yet pro- found personal and political act of coming out, the scenes of gay and lesbian couples getting married with friends and family surround- ing them has had a visible impact on our non-gay friends, family and community. I went to many wed- dings and hardly a dry eye was seen at the most meaningful mo- ment, when the pronouncement, “by the power vested in me by the State of California, I pronounce
you married,” was made. Truly amazing, we’ve gotten married! On Wednesday, Aug. 4, 2010,
Judge Vaughn Walker ruled in our favor and against the state of California. However, this case is not over. Both sides had previ- ously declared their intention to appeal the outcome to the United
fore, the unfolding of the story matters. Every action we take and every contribution we give to this effort—collectively and individual- ly—will become part of the larger movement and our LGBT history. We aren’t there yet. But I
know that our community is prepared to continue to fight. I
Every action we take and every contribu- tion we give to this effort—collectively and individually—will become part of the larger movement and our LGBT history.
States Court of Appeals for the 9th Circuit and many believe it will ul- timately end up before the United States Supreme Court. I recall a visit sometime last
year by Kate Kendell, executive director for the National Center for Lesbian Rights (NCLR), where she told a group gathered at the Noel-Baza Fine Art Gallery that “we know how the story ends. We just don’t know how many chapters are in the book!” I think Kate summed it up well. I also believe that every chap-
ter in the book has great meaning. This is a movement for civil rights and equality that should have been guaranteed to us as citizens under our Constitution; there-
remember when we were working to get Christine Kehoe elected as the first open LGBT person on the San Diego City Council in 1993. It seemed to me then that our community had to work twice as hard and be more prepared than our opponent because the playing field wasn’t level. Our playing field today, on the issue of marriage, isn’t level either. I’m not an attorney. So maybe
that is the reason it all seemed so simple to me—the questions before us: Is it discriminatory for us to be denied the right to marriage? Is it right for us to be treated differently than other American citizens? Does the mar- riage of two same-sex individuals
www.gay-sd.com Not there yet: ‘I know our community will continue to fight’
cause harm to the State? So we will work harder, knock
on more doors, raise more money, sign petitions, show up at rallies and marches, and attend meetings of the invaluable local organiza- tions working to undo the damage of Proposition 8 to ourselves and our families. We have made a difference in this fight and we will continue to make an impact. I’m traveling now, in my
home state of Virginia with my spouse, Jennifer LeSar, and her parents. It’s our family vacation. Proof of how far this family has come. They wanted to know the Appalachian history and roots of their daughter-in-law. Jennifer’s parents are engaged in this fight with us. They await the news from California with high hopes that the stay will be lifted and other gay and lesbian couples will be able to marry as Jennifer and I did in September of 2008. It wasn’t al- ways this way for the LeSar family. But now, our marriage photos are on walls in Florida, Ohio, Tennes- see and Virginia. So the work we are all engaged in makes a differ- ence—it did for this family!
—Toni Atkins is a candidate for the 76th District California Assembly.
Making sense of California’s struggle for marriage equality
Court and that the Court will address the question of whether states violate our federal constitu- tional rights when they ban same- sex couples from marrying. Following the path of marriage
By Barbara J. Cox For LGBT Californians and
our supporters, Judge Vaughn Walker’s decision in Perry v. Schwarzenegger was an impor- tant victory. Depending on what happens with the case over the next few years, it may be a great victory for all LGBT Americans and our supporters nationwide. [Ed. note: On Aug. 12—prior to publication but after this column was submitted—Judge Walker an- nounced he would lift the stay on same-sex marriage in California as of Aug. 18.] It is likely that this case will reach the U.S. Supreme
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for same-sex couples in California can be difficult. In May 2008, the California Supreme Court held that same-sex couples must be permitted to marry based on the Equal Protection guarantee in the California Constitution. More than 18,000 couples were mar- ried between June 17 and Nov. 5 of 2008. The Court also struck down Proposition 22 (see page 4), which prevented recognition of same-sex couples’ marriages
Prop. 8 as valid but held that the marriages of the 18,000 couples that had already married also were valid. Shortly afterwards, the Legislature amended Family Code section 308 to recognize mar- riages from outside California that were entered into before Prop. 8 was adopted.
That may all change follow- ing Judge Walker’s decision. In the first case concerning the U.S. constitutional rights of same-sex couples to marry, the trial court held that Prop. 8 “violates their due process and equal protection rights and . . . they will continue to suffer constitutional violations until state officials cease enforce-
Perhaps the Prop. 8 plaintiffs’ winning at- torneys … will be able to convince the con- servative members of the U.S. Supreme Court that these bans must end.
from other states or countries. However, voters then adopted Proposition 8 by a 52 to 48 percent majority, amending the state constitution to ban marriages by same-sex couples. In 2009, the California Supreme Court upheld
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ment of Proposition 8.” Though California Attorney General Jerry Brown and Governor Arnold Schwarzenegger refused to defend Prop. 8, the “Yes on 8” pro- ponents were allowed to defend it. Judge Walker found all of the
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plaintiffs’ witnesses were cred- ible in testifying that same-sex couples are harmed by being prevented from marrying and that marriage has changed over time to eliminate race restrictions and gender-based distinctions. More importantly, Judge Walker found that the testimony by the “Yes on 8” witnesses was either not cred- ible or irrelevant. The court also found that the “evidence provides no basis for establishing that Cali- fornia has an interest in refusing to recognize marriage between two people because of their sex.” In his 136-page opinion, issued Aug. 4, Judge Walker spent most of his time summarizing the testi- mony and making findings of fact. Those findings of fact must be up- held on appeal unless they are not supported by the evidence. This may be important because the “Yes on 8” witnesses had not pre- sented any rational governmental interest sufficient to uphold Prop. 8’s constitutionality. Rejecting their purported interests, such as preserving tradition, promoting opposite-sex parenting, and pro- moting procreation, the court held that the arguments made by the “Yes on 8” witnesses were “noth-
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ing more than a fear or unarticu- lated dislike of same-sex couples.” Having rejected the argument that California has any rational interest in preventing same-sex couples from marrying, Judge Walker said all that was left is moral disap- proval of homosexuality, animus towards gays and lesbians, or simply a belief that relationships between opposite-sex couples are better than relationships of same- sex couples. None of these were valid reasons on which to legislate and Prop. 8 must be struck down. Now Judge Walker must
decide whether to order California to immediately allow same-sex couples to marry or stay his decision pending appeal. Brown and Schwarzenegger filed papers urging the court to allow the marriages to begin immediately. “Yes on 8” filed papers asking that the decision be stayed while on appeal, and it is likely that either Judge Walker or the 9th Circuit Court of Appeals will issue a stay. We know how difficult it was to allow couples to marry and then declare their marriages to be void, because that is what happened in
see Sense, pg 20
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