Evan Wolfson: After historic Prop 8 ruling, what’s next for the freedom to marry

Posted by Evan Wolfson on huffingtonpost.com:

"All of us who believe in America's promise of equal protection under the law celebrated yesterday's federal court ruling striking down California's infamous Proposition 8, which in November 2008 stripped away the freedom to marry from same-sex couples in California (except for the 18,000 couples who had married in the previous months). U.S. District Court Chief Judge Vaughn R. Walker, a Republican appointee to the federal bench, struck a blow to a cruel and unfair constitutional amendment that should have never become law. The judge rightly noted that the Constitution protects all Americans against arbitrary denial of precious freedoms - freedom of speech, freedom of religion, and, here, the freedom to marry - particularly when, as he found, the government can show no good reason for that selective, unequal treatment.

"The authoritative ruling, grounded in law and evidence, will certainly be appealed, and there will be many twists in the road ahead. The case will now go to the Ninth Circuit federal appellate court, and a decision there may take years. We don't know whether or when the case will get to the Supreme Court, or who the justices will be should it get there. These things we cannot control.

"What we can control is whether we seize this historic moment and create the climate that will empower and embolden decision-makers to do the right thing, whether those decision-makers turn out to be appellate judges or the California electorate that may well vote on a ballot-measure undoing Prop 8. Simply put, to maximize the chances both of winning on appeal and winning at the ballot-box, we now must make as compelling a case for the freedom to marry in the court of public opinion as in the court of law.

"What we saw throughout the Prop 8 trial is that there is no good reason to exclude loving and committed same-sex couples from marriage. Recognizing the paucity of their own case, the Prop 8 defenders of anti-gay discrimination went as far as to assert during closing arguments that they "don't have to have evidence" -- a shocking assertion in any case, especially one that's weighing direct injury to thousands of couples and the constitutional guarantee of equal protection. Equally shocking, and revealing, was the Prop 8 crowd's own admission in pretrial proceedings that they had no explanation for why the freedom to marry is undesirable. When Judge Walker asked their lead lawyer Charles Cooper, "What would be the harm of permitting gay men and lesbians to marry?" Cooper, replied, "Your Honor, my answer is: I don't know ... I don't know." Cooper is a star lawyer for the right-wing, and has had a long time to think of an answer to that question; he was, after all, the hired-gun appellate attorney brought in to try to overturn the historic first freedom to marry trial we won in Hawaii in the 1990's The reason a smart lawyer like Cooper still, after all this time, couldn't provide a reason to justify the exclusion of same-sex couples from marriage is that there isn't one.

"Now those of us who support the freedom to marry must elevate the truth we saw in this trial: that families are helped, and no one is hurt, when same-sex couples share in marriage. We must take that truth to kitchen tables, legislative corridors, Facebook, and Twitter, and personally make the case for marriage.

"The freedom to marry has real momentum, but political and legal change will not waft in on inevitability. Courts do not operate in a vacuum, and litigation is but one piece of the work that will secure marriage for same-sex couples nationwide. Freedom to Marry's Roadmap to Victory lays out the strategy to win marriage nationwide. To set the stage for a national resolution, we must win more states, build majority support for marriage, and end federal marriage discrimination. To get our elected officials, and our appellate judges, to fix the law and end exclusion, we have to create the climate that encourages and enables them to do their job, like it or not. Drawing on the struggle against race discrimination in marriage as a historical measure, we are still far short of the critical mass of 34 states that had ended race-based discrimination when the Supreme Court ruled in Loving v. Virginia in 1967, though doing better in building the critical mass of public opinion in support, as we move toward Freedom to Marry's "majority for marriage." While there is no mathematical formula for what constitutes the needed critical mass of states and critical mass of public opinion needed for national resolution, to maximize our chances of prevailing as we advance, we must continue to make gains on both fronts.

... "The opposition's house of cards has collapsed, revealing the emptiness of the arguments against the freedom to marry and treating gay people as we all want to be treated: with fairness, equality under the law, security, and respect. Now we can make the case for the freedom to marry to those Californians, and those Americans, willing to rise above discomfort and the fear stoked by the backers of discriminatory measures such as Prop 8. Judge Walker has done his part, and now it's up to all of us. Through personal engagement and conversations, and a sustained campaign, together we will restore marriage in California and secure the freedom to marry nationwide."

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