 Taking the same route to City Hall that so many trekked after San Francisco Supervisor Harvey Milk was assassinated made it a surreal moment—a reminder that change invariably takes longer to manifest than those who seek it would prefer.
But unlike the mood that haunted San Francisco’s Castro district 32 years ago, this week’s march was one of celebration and a feeling of inclusion. U.S. District Court Judge Vaughn Walker’s ruling that overturned Proposition 8—the ban on gay marriage in California—made the most declarative public statement to date that the 14th Amendment’s due process and equal protection clauses must also apply to gays and lesbians. The 14th Amendment comes with no exceptions, qualifiers, or asterisks that would otherwise suggests one can peruse the fine print to see who is excluded. And not even the much heralded and highly overrated “will of the people” is superior to that fact. But we should view Judge Walker’s ruling as merely a semi-colon in what feels like a run on sentence in the fight for equality, which in all likelihood will not end until it reaches the Supreme Court. Judge Walker’s ruling was much more than a public policy debate about conflicting constitutional viewpoints, it was also about the lives of Americans who were unable to fully drink from the wells of democracy that were guaranteed to every citizen. The personal pleasure I experienced seeing the elation on my friend Molly McKay’s face when the ruling was announced was a moment I shall treasure. Having also seen frustration and anguish, I liked this look a lot better. It was individuals like Marvin Burrows, whom I’ve had the pleasure of knowing for the past 10 years that made the moment special. Burrows and his partner Bill Swenor were together for 51 years. When Swenor unexpectedly died in 2005, Burrows life changed dramatically. Though they were registered domestic partners, Burrows was denied Swenor’s social security benefits, his health care benefits ended, and he was force to move from the place they made home for 30 years. It has always boggled my mind why anyone would want to impede on that type of life-long commitment.
Burrow’s scenario, not as uncommon as many would like to believe, led Judge Walker to opine in his ruling, “The evidence shows that domestic partnerships do not fulfill California’s due process obligation to plaintiffs.”
Dr. Horace Griffin, associate professor Pacific School of Religion viewed Judge Walker’s ruling as long overdue affirmation. “It’s a great day,” Griffin said. “It’s a victory for all people in this country who believe in equality, particularly for gays lesbians that we’re included as citizens and this is part of our constitutional right as Americans.” Griffin speaks to what I have long argued to be America’s 223-year-old odyssey to define who exactly comprises the “we” in “We the people.” The definition, as it currently stands, was most likely beyond what the Founders of the Constitution intended. But the nation’s public moral document that was created in 1787 and ratified in 1788 was not designed to be the last word on what it means to be American. If that were true there would be no 14th Amendment. And movements such as women’s suffrage and civil rights might not have had a leg to stand, nor could they lend support and inspiration to their posterity, which is today’s LGBT movement. What the Founders did was create the basis for an ongoing dialogue that each generation would have to make sense for itself. One of the bedrock principles that have long defined who we were as a nation is the notion that the majority, no matter large or small, could never place itself outside the jurisdiction of the Constitution in order to have its way over the minority. Rhetoric such as “unelected judges overruling the will of the people” is nothing more than the acknowledged ignorance or contempt for American democracy. Those who seek a strict constructionist viewpoint will offer that one cannot find same-sex marriage anywhere in the Constitution. While true in a literal sense, it is also true one need not read long before they come to the obvious conclusion that equality and due process are critical to the American experiment. My late grandmother, in her infinite wisdom, used to say, “When you know better; you do better.” Judge Walker’s ruling helps us to know better what the Constitutions says so that we can do better when it comes to living out its values.
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