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Opinion: California Could Take a Page from New York's Gay Marriage Playbook

Monday, June 27, 2011 - 04:53 PM

Gay Pride Rainbow Flag Gay Pride Rainbow Flag (marlith/flickr)

Maybe it is a free country, after all. At least it's a free state.

Last Friday, New York reaffirmed our faith in democracy when same-sex marriage became legal in the Empire State. Meanwhile, the same-sex marriage debate rages on in California, where the courts continue to assess the constitutional merits of Proposition 8, the voter-passed initiative which made it illegal for gays and lesbians to get married there. The law also means that California cannot legally recognize same-sex marriages from anywhere else, including Spain, Canada, Massachusetts, Connecticut - or now, New York.

I am a native New Yorker. I was born and raised on the streets of the Lower East Side and went to college upstate; but I went to law school at Berkeley and broke into journalism in Los Angeles.

I started my law career as a clerk in the California Supreme Court and so I was uniquely disappointed, but not at all surprised, by the opinion of that court, back in 2009, that upheld Prop. 8. The justices were loath to overturn a decision made by a majority (however slim) of voters.

Prop. 8, as you may recall, came about in response to the courageous decision of San Francisco Mayor Gavin Newsome to issue a marriage license to any couple that applied - gay or straight. Conservatives rallied against that magnanimous gesture, with their mean-spirited response of a proposition.

In my humble opinion, the California initiative process is a cop-out. It relieves lawmakers of the responsibility of making the hard decisions they were sent to Sacramento to make, and it leaves the public holding the bag containing the really tough questions.

The gay marriage fight in California is far from over, however. Yes, the state Supreme Court ruled to uphold Proposition 8, but the 2009 ruling did not mean the justices agreed with the sum, substance or mean spirit of the law. For one thing, the court had previously upheld same-sex marriage in May, 2008. The difference from 2008 and 2009? One election cycle.

And since those rulings, a federal district court judge has stepped into the fray, ruling last summer that Prop. 8 is unconstitutional. With his ruling, Judge Vaughn Walker has all but assured that the the case will go all the way to the United States Supreme Court. .

Change can still come to California, even if it comes slowly and circuitously. While the lawyers in California continue to fight the battle in court, advocates are planning to take it back to the voters.

Perhaps the action of our leaders in New York, where our legislators and governor have demonstrated the courage of their convictions will serve as an example for California and the rest of the nation that has yet to step into the 21st Century.

The great irony, of course, is that California has always been a leader on civil rights and liberties - we led the free speech movement in the 1960s; we were the first state to send two women to the Senate, California has been and continues to be the world leader on the environment; and, led by the San Francisco Bay Area, we continue to be most progressive state in the Union, on most issues. But history will show Prop Hate to be an ugly and inconsistent blemish on California's record as a leader among states.

Conversely, New York's example goes farther than most. Unlike Massachusetts and other noteworthy examples in this area, the sweeping change in New York is legislative rather than judicial. In new York, lawmakers - representatives of the people - took a stand and the historic leap.

In California, a state in which voters make much of the law through statewide referendum, the legislature has remained silent. It is time for those leaders to speak up. And it is time for the people to rise up. It is time for Californians to do the right thing and give all citizens of the Golden State equal rights under the law.

Jami Floyd is an attorney, broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues. You can follow her on twitter.

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Comments [2]

John Capobianco from Farmingdale, NY

Jami,

I am curious, which do you see as more democratic, a statewide referendum where all the motivated voters have a say, or the representational republic model?

I do see problems with both avenues, but to say that the "California initiative process is a cop-out", is like saying that the 'will' of the people is a cop-out, isn't it?

I find the both processes fascinating and scary.

Jun. 28 2011 10:08 PM
Charles Stewart from San Francisco, CA

I fully agree with the author's sentiments but wish to correct the erroneous assertion that California does not legally recognize same-sex marriages from anywhere else. The state in fact recognizes out-of-state same-sex marriages performed prior to the passage of Prop 8 in all respects and all the rights of marriage for those performed after its passage except for use of the legal term "marriage" itself.

For more information see:

http://en.wikipedia.org/wiki/Same-sex_marriage_in_California
http://www.bizjournals.com/sacramento/stories/2009/10/12/daily8.html

Jun. 27 2011 06:16 PM

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