Originally published at Planet Waves.
To the Justices of California's Supreme Court:
This is a joint letter from a heterosexual woman and a gay woman. We're writing today as sisters for a cause.
As a straight woman and a woman of color, it was unnerving for me to watch yesterday's proceedings in the state's Supreme Court, hearing the arguments to overturn Proposition 8. My sense of unease was not because I felt in any way that testing the constitutional limits of what the voters approved was wrong. It was because we were trying the constitutionality of a referendum that should never have happened in the first place.
I am the child of immigrants. A first generation American born and raised in California. More than 10 years before I was born, my uncle and aunt had to cross the state's border to get married. He was Filipino and my aunt a Caucasian woman from Arkansas. Anti-miscegenation laws prevented them from being married in California.
Fortunately, with the repeal of miscegenation laws, first in the state and then across the country, their marriage was validated. They stayed married for nearly 60 years separated only by death, less than a year apart. What makes my uncle and aunt's desire to be married in the days of state's miscegenation laws is no different than what same-sex couples are contending with Defense of Marriage laws across the country. What gives the states the right to dictate who gets to marry?
In yesterday's Prop 8 hearing, Ken Starr argued that the people have the right to dictate who gets to marry whom. The rule of the people is "sovereign," he stated, "even when they are unwise." Even if they vote to take away the rights of all minorities, the Supreme Court should not intervene. Unless the ruling would enact "far reaching change in the structure of government," California's Supreme Court cannot get involved. With this perspective, it would be perfectly legal to impose, with a majority ballot vote: slavery in California, segregation, internment camps, anti-miscegenation laws, job discrimination based on race, ethnicity or gender -- the list goes on.
"Every civil rights group sided [with same-sex couples and LGBT advocacy groups]," Jon Davidson of Lambda Legal Defense and Education Fund explained in last night's teleconference.
So Prop 8 isn't just about marriage equality in California, it's about civil rights for minority groups and the right of the majority to legislate against a minority group when the legislative change will not affect them personally.
This is where my unease begins and where I must stand with all my gay brothers and sisters who want to enjoy the same right to choose the kind of legal relationship they want to have. They deserve that as individuals and human beings with free will and choice. Just like my aunt and uncle.
I also send this letter as a reminder to my brothers and sisters who are straight and married who have experienced or have family who have experienced the kind of prejudice my uncle and aunt faced in their time, until it ended finally with the California Supreme Court's decision in 1948, ruling miscegenation laws unconstitutional.
Where else will the state initiative process go to stop the state from applying similar rules against you or me in the future on our personal choice for relationship? Or where we send our children to school? Or where we go to get health care? Or allow us a path to citizenship? How far will the exclusion of one minority group go to strip them of their right to co-exist on the same ground with equal footing as the rest? When we will stop letting discomfort with people who are different than us rule how we let others choose to live their lives?
We ask that you consider the past to rule on the present. The message we send across the country goes not just to same sex couples but to everyone. As a state that prides itself on its progressive values, we need to step forward, not back.
Fe Bongolan
Rachel Asher