Late in the morning of Aug. 4, Zach Tepper’s phone brought him the news he had been waiting for: California’s Proposition 8 was deemed unconstitutional. Tepper, along with his colleagues at the LGBT Student Services Center – found themselves one Tweet closer to full equality.
“I felt really moved because I knew that when Prop 8 was passed, it really hurt,” said the 20-year-old women’s studies major. Tepper had mixed feelings that night in Nov. 2008 when he found out that Propositon 8 had passed, because he was hopeful that the advent of President Obama would change things.
“It was hard to understand how you could be so hopeful for these promises of change and then the same day have something so seemingly prehistoric,” said Tepper. “It seemed like an ancient decision.”
Tepper noted that he has a lot of LGBT friends in California that were personally affected by Proposition 8, and he’s hopeful that the federal judge’s decision will be upheld. “We shouldn’t even have to decide if everyone should have civil rights,” said Tepper. “It’s a right for a reason. It’s not a privilege. It’s a fundamental human right to be able to love and let your love be validated and recognized within the state or government that you live in.”
ON THE FRONT LINES
James Kendall, a 29-year-old web designer, and Bill Stivers, a 35-year-old systems administrator at the University of California Santa Cruz, make up two halves of one of the couples affected by the fight over gay marriage rights in California.
They first married in 2004 when San Francisco’s mayor issued marriage licenses to gay and lesbian couples that February, but that marriage was invalidated by the California Supreme Court in August of that year.
“We’d honestly expected the courts to put a stop to it the very next day,” said Kendall. “When they didn’t, we got that glimmer of hope that maybe they’d actually rule in our favor.
It wasn’t a big one, but it was still there. It was a blow to have that taken away after having that piece of paper for a few months.”
When they found out about Judge Walker’s ruling, it was yet another twist in the rollercoaster track to civil rights.
“We had it just long enough to know what we were fighting for,” Kendall explained. Kendall and Stivers remarried in 2008 the day it was legalized, but there was always that fear – realized when Proposition 8 was passed – that their marriage could be annulled again at any time.
Stivers found out about the ruling through a text from his husband. He’s hopeful as well, but he knows there could be more twists ahead In the fight for equality.
“I’m prepared to have my marriage annulled again,” Stivers said. “I’m prepared to have to go back and get married again. I believe that rationality will prevail. It could take five or 50 years, but we’ll get there in time.”
Part of getting married, Stivers explained, is wanting the same values that straight people want when they get married.
“The kind of gay person who wants to get married is making an investment in society,” said Stivers. “Why would anyone want to discourage that?”
And to Kendall, like many other gay men and women who want to get married, there is a palpable difference between being married and not being married.
”Before marriage, it was just the two of us. We kept each other afloat and above the water,” explained Kendall. “After marriage, the seas still storm, but we stand together. We’re safe. We’re stable. We hold each other because we want to, not because we need to to survive.”
EQUALITY BASED ON EVIDENCE
Forty-six-year-old civil rights attorney and UH Mānoa lecturer Hannah Miyamoto couldn’t react to that morning’s Tweets right away – she was busy teaching her 300-level Sociology of Gender class.
But Miyamoto found that what she learned from the ruling would be eye-opening for her students.
“Overall, (Judge Walker’s) ruling is very much based on facts as opposed to conclusions of law,” she explained. That dependence on findings of fact as opposed to law, she said, means that the Ninth Circuit Appellate Court will have a difficult time overturning the ruling.
“Appellate courts can overturn findings of law that they don’t agree with,” she said. “But findings of fact can only be overturned if they are found to be clearly erroneous. They have to be supported by the evidence on the record.”
Miyamoto noted that the legal arguments of the case are based on two clauses of the Fourteenth Amendment – equal protection and due process – but that the latter is significantly easier to defend.
“With equal protection, you have to prove that two people are substantially equal,” said Miyamoto. “But substantive due process says, ‘You know what, person A is, in fact, different from person B, but there’s no reason to discriminate against person A in favor of person B or vice versa.”
Miyamoto points out that while segregation cases have traditionally focused on the equal protection clause, LGBT civil rights have a different focus.
“In the case of equal protection, you’d have to prove that gays and straights are fundamentally equal. With substantive due process, even if they’re not equal, there isn’t an impact on the general public that would justify discrimination.”
The backbone of this ruling, Miyamoto explained, is that these are factual findings supported by extensive testimony, in which both sides had the opportunity to call witnesses and question them openly.
In the 138-page ruling, Judge Walker indicated that the plaintiff’s witnesses established factually that there was no substantive impact, which is what needed to be proven under the substantive due process clause.
HAWAi‘I IMPACT
But what may give people in the LGBT community in Hawaiʻi more hope is the possibility that the Proposition 8 decision could have a far-reaching impact – as far as Hawaiʻi or any other state in the Ninth Circuit.
“For Hawaiʻi’s sake, if this decision is affirmed by the Ninth Circuit, it doesn’t have to be taken up by the Supreme Court,” she said. “In some ways, it would be better if it didn’t, because it would be faster.”
Miyamoto says that under the fastest scenario, if the Ninth Circuit affirms the decision and the Supreme Court refuses to grant it a hearing, she expects the process to take at least another year.
A lot can happen in a year, especially with a new governor.
“Based on our history of civil rights, I actually do expect a period of resistance to judicially-declared equality,” said Miyamoto. “Our governor could, in fact, be promoting a resistance to it. It’s the moral equivalent of standing in a schoolhouse door like Governor Faubus did in Little Rock, Ark., or (former Alabama) Governor Wallace grandstanding, saying ‘segregation now, segregation forever.’”
But she also noted that if a governor sympathetic to civil unions were elected this year, the state could also file an amicus brief on behalf of gay marriage supporters, bringing up additional arguments to counteract Proposition 8’s defenders.
That means that even with this victory, it’s still important to keep pushing even here in Hawaiʻi for civil rights for gays and lesbians.
“We pushed for civil unions but we gave up our fight for the term ‘civil marriage,’” said Miyamoto. “But if we call it marriage, we know that’s it’s going to be marriage, and there will be no basis for discrimination.”
“Don’t compromise. We’ve got a very strong hand. There’s just no reason to, as far as I’m concerned.”