“Happy Equality Day!” three gay men said to each other, hugging outside Gelson’s supermarket on Santa Monica Boulevard in West Hollywood on Wednesday night, June 26. The feeling was different from “Happy Pride!”—that sense of freedom at proudly, defiantly strutting one’s own authentic individuality and shared LGBT identity, with a little flirty cruising thrown in, during L.A. Pride weekend. Rather, the mood waving through the city like a giant rainbow flag was more exuberant relief that the U.S. Supreme Court vindicated—at long last—the rights of gay people to exit, to enjoy equal protection under the law and to love whomever they chose to love. The offensive Prop. 8 and the so-called Defense of Marriage Act were dead!
According to the L.A. County Sheriff’s Department, about 3,000 people—LGBT and ally alike—gathered at West Hollywood Park to celebrate the rulings. There were many new faces, lots of Latinos (see coverage from Spanish-language Univision here, probably even happier today with the Senate’s passage of a comprehensive immigration reform bill), plus the young post-Prop. 8 crowd who were so shocked in 2008 that “the people” could take away the existing legal right of same-sex couples to marry that they got involved in some version of activism.
The crowd seemed to exude a kind of pride of ownership that their support had helped push the issue of marriage equality into America’s collective consciousness. They shouted “Thank You!” to the “heroes” of the Prop. 8 fight—American Foundation for Equal Rights co-founder Chad Griffin, now president of the Human Rights Campaign, Oscar-winning screenwriter Dustin Lance Black (Milk), AFER Executive Director Adam Umhoefer, star attorneys Ted Olson and David Boies (and Ted Boutrous who was thanked in absentia) and especially the plaintiffs—the two gay couples who very consciously stood in for same-sex couples and same-sex parents everywhere—Kris Perry and Sandy Stier, and Jeff Zarrillo and Paul Katami.
The AFER team mirrored back the crowd’s enthusiasm, with Olson and Boies sincerely thanking them, saying the Prop. 8 victory could not have happened without them coming out and telling their stories. Indeed, Black told Variety’s Ted Johnson, “I think this case has ignited a storytelling movement in this country. ... It meant we had something to rally around. It meant we had a new hero from the conservative realm, who took it out of the red-blue divide,” meaning prominent Republican Ted Olson, the former solicitor general under President George W. Bush, whose work with Boies, his prominent Democratic attorney in Bush v Gore illustrated the non-partisan nature of marriage equality. Black told Johnson he plans to re-write portions of his popular play 8 to reflect the court win as the play continues to be staged in regional theaters and schools around the country.
There were old-timers at the rally, too, some still reeling from the Supreme Court’s ruling the day before that eviscerated the Voting Rights Act. Not only did the ruling impact LGBT people of color in the South and Southwest, but it was a skin-crawling reminder that a politicized, activist court can take away hard-won civil rights just as coldly as can an uninformed voting majority. “Happy Equality Day!” may seem appropriate for the current momentum toward the inevitability of gay rights, but the ruling on the Voting Rights Act and an Affirmative Action case suggested that in a few years, when the “new normal” becomes old hat, anti-gay politicians could find a way to use the high court’s fidelity to federalism to seize upon “states' rights” as a justification to bludgeon gays back into second-class submission.
But those thoughts were only wisps of dark clouds in an otherwise very bright day. And while the audience waved signs and screamed when Black said, “I’m here to recruit you"—recalling the late hero Harvey Milk—the “celebrities” of the day were the attorneys and advocates who had actually changed the modern gay world.
If was a point legal eagle ally Kathleen Perrin, who regularly blogs on the Courage Campaign’s Equality on Trial (formerly Prop. 8 Trial Tracker), found amusing. She was so happy to be at the rally that she squeezed her small frame up to the front to get a better view. “I camped out for 24 hours in the cold. I got the last ticket to see the Prop. 8 trial” (in San Francisco District Court in May 2009), she said. “And then a woman nudged me, asking, ‘Who are the celebrities?’ I told her I don’t know. I only know lawyers.”
Also upfront were longtime lesbian feminists Jeanne Cordova and Lynn Ballen, who once denounced the very patriarchal construct of marriage! Cordova said she had proposed to her partner of 23 years because “the institution of marriage has changed” and because when she dies, she wants Ballen to have greater protections than their contract provides. “I asked her would she get legal with me,” Cordova said.
Longtime LGBT advocates Corri Planck and Dianne Hardy-Garcia brought their two adopted daughters to witness history. “It seems as though we’ve been waiting for nearly our full adult lives for our marriages and relationships to be treated equally,” they wrote on a Yahoo news site about Prop. 8 and DOMA. “Not just for ourselves and so many of our dear friends, but for all those in our community.”
(Side bar: Amusingly, I noticed all the lesbians but totally failed to recognize gay soccer player Robbie Rogers, who I literally tripped over. He was very polite, BTW. Greg Hernandez recognized him, though.)
Black opened the rally talking about the “hundreds and hundreds” of “brave” LGBT people who came out when it was not easy. But this was not just fawning rhetoric, however sincere. He really was there to “recruit” and entice the audience to be those “brave” ones today—inspired once again by the words of Harvey Milk, with whom everyone seemed familiar. Milk, Black said, told “anyone who would listen in the waning days of his life, ‘We can no longer be satisfied with crumbs. It is time that this community stop asking for crumbs and demand the real thing’—because they may find that they could actually get it—and we have today!
“I thought of my forefathers, but I also thought of every single one of you who have also given your lives and your stories and your names to this movement so that we could be here today. And I want to thank all of you and I want to congratulate all of you for going out there and winning freedom today. Winning equality today, winning respect and protection for your families and your future families today. Congratulations for that!
But more importantly, what all of us Californians won today was strength. And we did it with our blood and our sweat and our tears and our stories and our lives and our love. But we are not done. And now it is time for each and every one of us to take that strength that you now feel as Californians, take that strength and take it to Texas, where I grew up. And take it to Virginia, where my dear big brother lived [his gay brother died of cancer last year]. And take it to Holland, Mich., where so many have been denied equality. And take it—please take it to Altoona, Penn., to the place Harvey Milk talked about and that young person who is still yearning to be free! You need to take your strength to these places and share this feeling with this nation so we no longer leave a single one of our brothers or our sisters behind, no matter the love in their heart or in which state they live. That is what we will do with this day. That is what we will do with this strength!”
Black then introduced elected officials from West Hollywood, which he noted was the place to which he retreated in college to “feel safe and free.” WeHo Mayor Abbe Land, who is gaining greater national attention as the CEO of The Trevor Project, gave a rousing speech, as did outgoing “Equality Mayor” Antonio Villaraigosa. Incoming mayor and longtime LGBT advocate Eric Garcetti is on vacation in Belize with his family. Garcetti’s opponent in the mayoral election, City Controller Wendy Greuel, was there onstage, as were incoming gay Controller Ron Galperin, Assemblymember Richard Bloom and two incoming gay councilmembers Mike Bonin and Mitch O’Farrell.
The spirit of transition was in the air.
While many people were undoubtedly at the rally to see star attorneys Olson and Boies and the incredibly humble and articulate plaintiffs, the real draw was the opportunity to communally share and celebrate a once inconceivable pair of historic victories—DOMA plaintiff Edie Windsor got several shout outs from the stage—and to find out what’s next. As the New York Times pointed out in their editorial:
“But there are miles yet to travel on this civil rights journey. The new marriage rulings leave behind an unsupportable state-by-state patchwork that threatens valid marriages when state lines are crossed. Cases already in the pipeline could give the Supreme Court another chance to fully confront the harm to real people’s lives and establish marriage equality nationwide. Soon, we hope.”
Yes, said Chad Griffin, and more. Griffin was a prominent gay L.A.-based political consultant to the 'No on Prop. 8' campaign. Frustrated with the slow pace of step-by-step litigation, he co-founded AFER to cut to the chase with a dramatic federal constitutional challenge to Prop. 8 brought by the political 'odd couple' Olson and Boies. He was met by a backlash from many in the LGBT legal community who thought the lawsuit was an affront to the carefully considered strategy developed by movement leaders and if it failed, could result in a real setback. Nonetheless, AFER proceeded and the district trial of Perry v. Schwarzenegger put into the record scholarly accounts of the history of discrimination against LGBT people and the touching personal stories that underscored the real harm done by such bias. And, as Olson pointed out, the proponents of Prop. 8 were so frightened by being cross-examined under oath by Boies, they either didn’t show up or they changed their tune. District Court Judge Vaugn Walker ruled that Prop. 8 is unconstitutional and that same-sex marriage caused no harm to the initiative proponents nor to the state – but caused substantial harm to gays and lesbians by denying them their rights to equal protection and due process. (AFER has all the transcripts of testimony and all the rulings on their website, afer.org.)
And despite the current chatter from opponents to marriage equality, the DOMA ruling did, in fact, underscore equal protection rights, though not yet granting gays the status of a 'protected class' under strict scrutiny.
Writing for the majority in the DOMA case brought by the now-84-year old Edie Windsor—whose 2007 legal marriage to Thea Spyer in Canada was recognized in their home state of New York—Justice Kennedy wrote:
"DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the federal government. ... The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. ...
DOMA writes inequality into the entire United States Code. ... DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. ... By this dynamic, DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. ...
DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. ... While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved. ...
DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages."
Now those are some words an LGBT equality activist can work with—especially as Kennedy virtually undermines his own apparent good intentions by confining the ruling to only those marriages in the 12 states and the District of Columbia where same-sex marriage is legal. Luckily, President Obama has already ordered all federal agencies—such as the military and immigration—to start treating legally married couples as equal under federal law.
So what now? Griffin has a stirring answer, promising to put together a plan to achieve marriage equality in all 50 states in five years! He told the eager crowd at the rally that the AFER team had committed themselves “to fight until we proved our enemies wrong,” and four long years later, that’s what they did:
“We have wiped away Proposition 8 and DOMA once and for all. Today California won and American values won. But even as we celebrate this historic victory and the weddings soon to come, we can’t forget that urgency, even that anger that we all felt when Proposition 8 passed. We can’t forget, because all across this country—from Idaho to Alabama—37 hateful marriage bans are still on the books. But now that we’ve torn down Proposition 8, let’s tear down the other 37 as well.
We’ve got to rise to this historic occasion with an urgent new commitment—a commitment to Americans in those 37 states—our brothers and sisters who didn’t feel the reach of justice by today’s decisions. It took us less than five years for this day—thanks to each of you and thanks to all that are on this stage—to finally restore marriage equality to California, the most populous state in this country.
So tonight, we’ve got to set a new goal—a new goal for our brothers and sisters in the other 37 states. Within five years, we will bring marriage equality to all 50 states in this country. And while tonight we celebrate, tomorrow this fight continues with greater urgency than ever before. After all, the lesson of the Perry case and of Ted Olson and David Boies and these incredible plaintiffs behind me is that justice can’t wait.
So now it’s up to us to make this historic victory reach each and every corner of this country, because while marriage equality will soon return to this state, loving and committed couples in places like Hope, Ark., or Altoona, Penn., are still waiting for justice. And I don’t have to tell all of you that every moment of delay has a real-life human consequence, because every day in these places a child is born, a parent dies or a loved one is rushed to the hospital. And the inability to access these basic protections of marriage destroys lives and ruins families.
So make no mistake about it—tomorrow is certainly a new day. But the sun will still rise on an unequal country. And tonight, we’ve got to commit to fight like hell until all Americans can share in this victory we celebrate tonight!
So tonight—and tomorrow when we get up and roll our sleeves up and get to work—we will work in state legislatures and we will work at the ballot box and in Congress – and yes, once again in our federal courts. This movement for equality will advance on all fronts. And if you continue to stand with us—and you continue to fight with us—and you continue to march with us – I promise you, equality, fairness, and basic human dignity will prevail for everyone everywhere!”
Griffin was often interrupted with applause and cheers, but even more importantly, in WeHo, in the hot late afternoon June sun as gay bars up the street in Boystown put out their Happy Equality Day rainbow flags and lowered their drink prices to spark the party, the audience often fell silent in rapt attention. These are the post-Prop. 8 activists and would-be activists who feel this fight for full equality in their marrow-bone and seem to find it fun, too.
Then Griffin introduced Olson and Boies—the “family” who today, “we officially call them heroes.”
The odd couple could feel the waves of love washing upon the stage. Olson urged Boies to speak first, but the ovation was so strong and loud, the crowd wouldn’t let him even get started. Finally, he just started, serving almost as a closer to Griffin’s comments and the thrust of the afternoon to leave no LGBT person behind:
“We are here because of all of you. We are here because people were not prepared to simply give up and accept second class status. And because of that, today in California, everyone is equal. Every family is equal, every love is equal every child is equal and we have made happen in California. And the great thing is that 30 percent of the country today lives under marriage equality, but the terrible thing is that 70 percent of this country still doesn’t.
And the great thing about the Supreme Court decisions that we got today was that not only did it kill Proposition 8 dead and kill DOMA, but it laid the principle and the foundation to eliminate discrimination everywhere. Because what the Supreme Court held, again, is that all people are equal, all love is equal and everyone has the right to the kind of family that we all aspire to. It is that kind of principle that establishes the right to marriage equality!”
To be sure, the two rulings and the AFER trial record create tons of background material to work with going forward. But how might that move ultra-conservative Republican-dominated state legislatures that already reintroduced harsh Voter ID laws after that ruling and insist on undermining Roe v. Wade and denying a woman control over in her body in whatever way possible? I asked Ted Olson backstage if he could convince his party to curb their enthusiasm for such extreme behavior—they seem to be heading for a cliff, I noted. But Olson would only note that 100 Republicans had signed an amicus brief in the Perry case—a sure sign that all is not lost. Ted Johnson asked if he would be involved in any further litigation, as Griffin indicated would probably come down the path, and he would only say they will look at it “on a case-by-case basis,” though he remains committed to the fight.
I asked AFER President Adam Umhoefer what was in store for AFER now that they have won the Perry case. He said he didn’t know, that the board would meet in a few days to decide their future. Ted Johnson got a little more from AFER co-founder and board member Bruce Cohen: “Cohen noted that the goal of the American Foundation for Equal Rights was to defeat Prop. 8 and to see full marriage equality across the country. “We are halfway to our goal this morning,” said Cohen.”
The question now is, will AFER—and by extension HRC, because of Griffin—fold into, merge with or compete with Freedom to Marry—the organization founded by longtime marriage rights activist Evan Wolfson—who has had a Roadmap to Victory for over 10 years.
I asked HRC spokesperson Fred Sainz about Griffin’s five-year plan and whether they plan to work with Freedom to Marry. He replied, “It took Perry four years to get to the Supreme Court, and with five federal marriage cases (and three state), it seems like a goal we should set for our community. The marriage movement has always found a way over, under and around obstacles in our way, and that's exactly what we'll do this time to achieve our goal. We'll pursue marriage legislatively, electorally and judicially. And throughout, we'll continue to change hearts and minds until we achieve our goal.”
And yes, HRC plans to work with Freedom to Marry, though Sainz provided no specifics.
The take-away from the Prop. 8 victory rally was that there are lots of potential post-Prop. 8 LGBT and straight activists awaiting leadership, training and instructions. But the usual questions persist—when, how and from whom? Just as the anger over the passage of Prop. 8 helped galvanize the LGBT movement for equality, inspiration to act out of the joy of victory and the sympathy for left-behind brothers and sisters may last only until the next new thing comes along.