NCLR’s Shannon Minter Talks About

Waiting for Justice

by Lori Hahn

Shannon Price Minter, Legal Director for theNational Center for Lesbian Rights (NCLR), stood as lead attorney before the CaliforniaSupreme Court just a few short weeks ago. He argued that Proposition 8, which bans same-sex marriage and was passed by simple majority vote in November 2008, was an illegal revision to the state’s constitution and should never have been allowed on the state ballot in the first place without the legislature’s approval and should be struck down. Now, Californians wait for the decision by the California Supreme Court as to whether Proposition 8 will be allowed to stand or will be struck down.

Over 18,000 couples did marry between May and November of 2008, thanks to a previous court ruling which determined that gay marriage was, in fact, legal. The validity of those unions are in question due to Proposition 8. Minter argued on behalf of six same-sex couples who did not marry during the few months that gay marriage was legal in California, as well as Equality

California. Several other attorneys represented various groups including several civil rights organizations, couples affected and city and county organizations. Pepperdine University’s Dean of the School of Law, Kenneth Starr, is lead counsel for the opposition.

Thirty states already have constitutional amendments barring same-sex marriage, but, according to Minter, “This is a huge, huge ‘but’, there is no other state which has done that after the state supreme court held that same-sex couples had a fundamental right to marry and are entitled to the highest level of constitutional protection.”

“That’s what makes this case so significant. And, significant far beyond its impact on our community, which is enormous. That’s just the tragedy of the situation. If the Court lets Prop 8 stand it will be the first court in the country that ever held that an amendment process can be used to take away a fundamental right from a group that is otherwise supposed to get the highest level of protection. What that does to our constitution and our basic system of government is horrifying,” Minter stated.

Minter explained the basis for the argument in simple terms, “The argument itself is very simple, very basic. Our state supreme court has also already held that an amendment has to be consistent with the existing principles and structure of our constitution. A proposed amendment that would change the basic nature of our government or fundamentally change the constitution is unlawful.”

Minter continued, “You can’t make a change that significant without going through the revision process, the process for revising our constitution. The Court always has to determine in these cases when an initiative is challenged on the grounds of ‘Hey, this is too significant, this goes too far’ for a simple majority vote. That’s the analysis the Court has to make.” “Here it is completely foreign to our system of government to let a majority to take away a right from one minority group. Across the world, American democracy is known for protecting minority rights. That the two basic pillars of American democracy are on the one hand, respect for majority rule and on the other hand, however, majority rule has to be exercised to protect minority rights. That is the hallmark of democracy in this country,” Minter added. “There’s very famous language from the U.S. Supreme Court from a case in the 1950s that says that we in this country ensure fair government is making sure when a majority enacts a law, that law has to apply to the majority as well as the minority. In this country, a majority cannot enact a law that only takes something away from a minority group while leaving that majority to enjoy that right or protection.”

With that reasoning, is marriage as an institution safe? Should no one be allowed to marry if same-sex couples cannot be married? Minter was adamant that, “We don’t need to destroy our most basic cherished rights because gay people cannot exercise them.”

Minter said the outcome is difficult to predict based on the questions asked. Courts often use questions to play devil’s advocate and test arguments. He went on to say, “I was surprised and distressed by some of the questions by Justice Kennard and Chief Justice George that seemed to want to minimize the impact of Prop 8. They were asking questions, again, perhaps just playing devil’s advocate, but, suggesting

that Prop 8 didn’t take away anything important from gay people, that it was just about the word ‘marriage.’”

“Of course that was the very issue in front of the Court in the marriage cases (ed note: Minter refers to the cases which ultimately led to the California Supreme Court decision that legalized gay marriage in May of 2008). Justice Kennard and Chief Justice George very eloquently explained at length why it is so important that same-sex couples have access to the same institution and the same legal status and the same label and word as heterosexual couples so I found that somewhat baffling and distressing.”

“It would be a travesty if the Court were to hold that Prop 8 is not a revision because it’s not so significant because it’s just about the word ‘marriage.’ I think it would forever diminish the court’s credibility and stature.”

Can a voting group, by simple majority vote, take away a right from one particular group of Californians? That is the issue before the Court. That is what the Court needs to decide, “Some of the questions were phrased to indicate that somehow the Court’s hands were tied — that since that’s the way the vote went, there is somehow nothing they can do,” Minter added, “That is, of course, untrue. It is the Court’s job to decide whether this kind of change can be made by amendment.” If the Court rules that a simple majority can take away the rights of a minority, this could have an impact on other minorities as well.

“That’s what’s so disturbing about this case,” Minter said, “The stakes are very, very high. Not just for gay people. It’s going to be a watershed decision. Especially when you think about how diverse California is.” Minter continued, “We’re already to the point where it’s difficult to talk about majority/minority with many issues in terms of race or religion because we’re so diverse. One thing that has always held Californians together, united, in a single political community is knowing that minority rights are always going to be protected. If we have one set of laws it will apply to everyone and the majority can’t pass laws to benefit them and hurt other groups – that’s equal protection under the law.”

“Throwing that overboard because of controversy about gay people and marriage would be incredibly destructive.”

Minter believes we should not wait for the Court decision — there is a missing piece, according to research, “Each and every one of us should be reaching out to people in our community — our family and friends and coworkers — and talking to them about why equality is so important to us. Straight people don’t understand why it’s important until they have a lot of direct personal contact with same-sex couples they can see as fellow human beings. We have to be open and vulnerable with them and talk to them about how it affects our lives and why it’s important to be treated as fully equal.”

“I am so involved in this struggle and there are still people who I’m afraid to talk to. I mean, I’ve been going to the same barber for years and I started that conversation with those guys at the barber shop. It didn’t go well. But I can keep having that conversation.” Minter added, “It was very difficult – far scarier in many ways than standing up in front of the California Supreme Court. That’s the hard work we all have in front of us.”

“There is nothing more powerful than building those human bridges and connections. That’s necessary to build the kind of world we want to live in – we want our children to live in.”

“No group has ever won their civil rights without an enormous struggle. It is up to us. I hope the Court does the right thing.”