Academic

If You Live in California, Vote No on Proposition 8

By Ann Bartow

From this Feminist Law Prof co-authored Op-Ed:

Fifty years from now, we will surely look back, with shame, at society’s mistreatment of people who are lesbian, gay, bisexual and transgendered (”LGBT”). It is an unfortunate feature of democracies that the majority can pass laws that disfavor minority groups. This country’s history of legally sanctioned segregation, “separate but [supposedly] equal” education and bans on interracial marriage were products of democratic institutions not yet ready to fully integrate racial minorities into society.

This country, however, was not built on the premise that majority will should rule on all matters; on the contrary, the American legal system was fashioned specifically to protect against the tyranny of the majority. Throughout this country’s history, minority groups have thus counted upon courts to preserve rights guaranteed by our federal and state constitutions. Those documents guarantee to all citizens both due process and equal protection, enduring but also flexible concepts that over time have moved society closer to realizing the guarantee in our Declaration of Independence that “all [people] are created equal.” …

… Historically, California has been at the forefront in protecting minority rights. Even before Brown v. Board of Education, California courts found “separate but equal” education to be inconsistent with state constitutional requirements with regard to its Latino population. Moreover, in Perez v. Sharp, California banned the prohibition on interracial marriage 19 years before the U.S. Supreme Court reached the same conclusion in 1967.

The California Supreme Court’s recent decision extending rights to same-sex couples is in line with a noble history that is relatively progressive compared with some sister states and even the federal government. Should Prop. 8 pass, it would represent a significant departure from that history, and condemn California to a few more years of shameful discrimination against the LGBT community with respect to the important right to marry the person of one’s choice.

Read it in full here.

–Francine Lipman

Full post as published by Feminist Law Professors on October 30, 2008 (boomark / email).