Civil rights must be for allProfessor Sonia Katyal in The National Law Journal, January 12, 2009
Sonia K. Katyal / Special to The National Law Journal
Ten years ago, I sat in a constitutional law class taught by Barack Obama at the University of Chicago Law School. My mother proudly recalls that I came back from class and predicted to her that Obama would someday be president. At the time, no one believed that such a thing was possible. But as history has shown us, we have come a long way in the past 10 years. We have watched Obama achieve what folks never imagined: A little-known local hero, armed with courage, audacity and a desire to bring people together, managed to unite the world's most powerful country during one of the most painful economic periods of our history.
This makes it all the more confusing — and hurtful — that someone like Obama would select Rick Warren, a decisive player in the movement against gay civil rights, including gay marriage, to speak at his inauguration.
In recent years, another revolution has unfolded, something that all of us have borne witness, and something to which seemed equally improbable. Twelve years ago, the U.S. Supreme Court handed down Romer v. Evans, the first time the highest court in the land declared that a state could not ban the enactment of civil rights laws that protected gays and lesbians from discrimination. It was a stunning moment — many of us, including myself — never imagined that such a conservative court would recognize something that seemed patently obvious to the rest of us: that "equal protection of the laws" under the Constitution actually meant something, something real, something tangible, even when it applied to a group that many people seemed to readily overlook: gays and lesbians.
Defining liberty of all
Yet gays and lesbians, Justice Anthony M. Kennedy reminded us, just like everyone else, deserve protection from mistreatment and discrimination. And just five years ago, the Supreme Court continued on the path of equal treatment in the landmark case of Lawrence v. Texas, a case that recognized that sodomy laws violated a person's right to sexual privacy and intimacy. In that case, it directly overruled its 1986 decision on the ground that its prior case was "not correct when it was decided, and it is not correct today." It offered us a powerful observation: "[T]his Court's obligation is to define the liberty of all, not to mandate its own moral code."
On the day Lawrence was overturned, hundreds of people gathered at Harvey Milk Plaza in San Francisco. At the time, we stood amazed and uplifted by the power of law to correct its own mistakes. But there was something else that the outcome of these cases established: the principle that gay civil rights is not just an issue that affects gay people, it affects all people. Like so many other civil rights cases, Lawrence was the fulcrum that made gay civil rights a mainstream cause by its simple refusal to treat intimacy between same-sex couples any differently than anyone else. Shortly thereafter, Gavin Newsom consecrated this vision when he relied on the principle of equal protection to marry Del Martin and Phyllis Lyon, a lesbian couple who had been together nearly 50 years.
By the time Proposition 8 passed, nearly 18,000 other couples had done the same thing. One of Newsom's senior advisers, Michael Farrah, remembers canceling his plans for Valentine's Day 2004 so that he and his girlfriend could perform weddings the entire day, instead. "I was crying at the weddings of people I didn't even know," Farrah recalled to the New Yorker. "It was the most rewarding weekend I've had in ten years of working in government."
The gay civil rights movement, as any law professor can readily tell you, is probably one of the most dramatic constitutional shifts we will see in our lifetime, and is even more powerful precisely because it has managed to actively embrace both gay and straight supporters in its vision. And, as one of those lawyers and law professors dedicated to civil rights, Obama himself was responsible for teaching his students what the principle of equal protection stands for — the simple, beautiful principle that the protection of the law should extend to everyone, irrespective of race, gender or sexual orientation. Out of all the hope that this year's election offered us, Proposition 8 seems to stand for precisely the opposite: the artifice of division, discrimination and intolerance toward the goal of civil rights for all. Is this just another example of the oft-spoken observation that gay is truly, as one prominent magazine suggests, the new black?
Back in 1977, when Harvey Milk was elected to the San Francisco board of supervisors, he said, "It's not my victory, it's yours and yours and yours." Our constitutional legacy, if it stands for one simple thing, stands for this: that the law is supposed to prevent the majority from suppressing the constitutional rights of a disfavored minority. As a constitutional law professor and a future president, Obama, probably better than anyone else, should know how dangerous, how disastrous it can be to enable an outspoken opponent of gay civil rights to occupy a prominent place in an inauguration that is supposed to be meant for everyone.
Sonia K. Katyal is an associate professor of law at Fordham University School of Law and a visiting professor at the University of California Hastings College of the Law in San Francisco. She and her partner are one of the 18,000 couples whose marriages lie in legal limbo due to Proposition 8.