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COMMENTARY: It's time to repeal Prop 8 in 2012

(Editor's note: Love Honor Cherish has been cleared by the state to begin gathering signatures for its initiative to repeal Proposition 8. The group has until May 14, 2012, to qualify for the Nov. 6, 2012, presidential ballot.)

Three years ago, I was one of thousands of Californians who took to the streets as part of the massive protests against the unfortunate passage of Proposition 8. As traumatic as it was to have discrimination enshrined into our state’s constitution, I took solace in the belief that Prop 8 had awakened a sleeping giant.

I was 26 years old at that time, and never in my life had I experienced the groundswell of public protest akin to what generations before me experienced in the 1950s, '60s and '70s. We were angry at the lies of the Yes on 8 campaign, and we were angry at the too-little-too-late efforts of our own campaign. But most of all, we were inspired to mobilize, to fight back, and to restore marriage equality at the earliest and best opportunity.

That didn’t happen in 2010. Many people, myself included, believed two years after Prop 8 was too soon, and that the right time was 2012. Indeed, it seemed that the only argument against 2010 was that 2012 was the better time. We were told we should “prepare to prevail” in 2012, and Equality California (EQCA), California’s largest LGBT equality organization, announced it was “confident” that November 2012 was the right time.

I was thus dismayed when EQCA announced in October that it would not seek to repeal Prop 8 in 2012. Less than a week after the announcement, EQCA’s executive director resigned – after only three months on the job – and since then a number of other EQCA staff have left the organization.

These events raise one (or both) of the following inferences:

1. EQCA’s board was deeply divided over whether to go back to the ballot in 2012; or

2. EQCA was in such institutional disarray, it had serious doubts about its own ability – and not necessarily the ability of other organizations – to lead a successful ballot campaign.

Indeed, it may be that EQCA’s resources are best devoted to lobbying in the legislature, and that we need to turn to other organizations to win a popular repeal of Prop 8.

As dismayed as I am with EQCA’s decision, I am far more troubled by the response of gay rights supporters at large. Or perhaps I should say the lack of response. No one seems to care! No one is outraged that EQCA and numerous other organizations raised millions of dollars after Prop 8 under the guise of “preparing to prevail” in 2012. No one seems to have the sense of urgency and resolve that we all had on Nov. 5, 2008. Instead, too many of us are satisfied with this timid response: Let’s “wait and see” how the Perry lawsuit turns out.

There’s a lot to be admired in the Perry v. Brown lawsuit.

The American Foundation for Equal Rights took bold action in doing what all other gay rights legal groups had advised against: filing a constitutional challenge to a same-sex marriage prohibition in federal court. There’s a certain sense of fairness in taking this fight into court because courts and constitutions exist to prevent the majority from oppressing the minority.

And it is gratifying to see what happens to expert witnesses who supported Prop 8 when they are subjected to cross-examination by great lawyers like Ted Olson and David Boies (they become possessed with bouts of truthfulness and say things like “our country will be more American” the day we allow same-sex couples to marry).

Yet it’s been more than two and a half years since the filing of the Perry lawsuit – and more than three years since the passage of Prop 8 – and Kris & Sandy and Paul & Jeff still cannot get married. The case has been mired with unpredictable delays. It took a year and three months from the filing of the lawsuit to Judge Walker’s ruling in August 2010, which was immediately stayed pending appeal.

While the Ninth Circuit appeal was pending, the “standing” detour to the California Supreme Court took nearly all of 2011 to resolve. And even if the three-judge panel issues a decision in early 2012, the likely next stop will be a further review by a larger panel of Ninth Circuit judges – and not the U.S. Supreme Court. Assuming Perry goes all the way to the U.S. Supreme Court, we are not likely to get a final decision before 2013, at the earliest.

Delay is not the only concern with the Perry case. I am not entirely confident we will win in the U.S. Supreme Court.

Don’t take me the wrong way – I firmly believe as a matter of law that Prop 8 is unconstitutional, and that we ought to win. But judges do not make decisions in a vacuum, and that is especially true for justices on the Supreme Court. While courts are theoretically insulated from political pressures, everyone knows that reality is otherwise. I have serious doubts that there are five justices who are prepared to issue a decision that requires every state to grant marriage rights to same-sex couples.

My biggest concern with the “wait and see” attitude is that if we lose at the Supreme Court, the consequences of that loss will be far worse than the consequences of losing at the ballot in November 2012.

That’s what happened to us in Bowers v. Hardwick in 1986, when the Supreme Court ruled 5-4 that states could criminalize private, consensual sex between people of the same sex (the “swing” vote in those days, Justice Louis F. Powell, was terribly conflicted over how to vote, and later admitted to having voted the wrong way). Bowers opened the door to all sorts of anti-gay laws – even in states that did not criminalize gay sex – and it took 17 years before Bowers was overruled. Now imagine the consequences of a Supreme Court decision that said there legitimate reasons for states to deny gay couples the same dignity before the law as straight couples.

“Wait and see” is no way to run a civil rights movement. While courts can assist unpopular minorities, history shows the judicial process cannot effect full equality on its own; we must continue to engage the political process as well.

We should be fighting Prop 8 on all fronts, and fighting it in the courts and on the ballot are not mutually exclusive.

For instance, building public support for marriage is essential for creating an environment in which judges feel safe to do the right thing. And while winning at the ballot in November 2012 would moot the Perry case, we still may have a valid precedent applicable to some or perhaps all states in the Ninth Circuit. In any event, our success at the ballot in 2012 would lay the necessary groundwork and momentum for future successes in legislatures and courts.

This victory is ours for the taking.

Prop 8’s passing was a tough blow to take, but we must remember that it passed by the narrowest of margins. We ran an inept, closeted campaign that failed to place front-and-center what was at stake: our love, our commitment, and our families. We won’t repeat these mistakes again. Conversely, I also question whether the institutions that spearheaded the passage of Prop 8 will be as eager to play such a prominent role in this presidential election cycle. In any case, I know we can fight a better campaign.

The massive outpouring of opposition to Prop 8 after the election was incredible, and I believe we can again harness that momentum to push us over the top to victory. But the clock is ticking, and if we again succumb to apathy and timidity and don’t get started right away, then we will end up repeating the same mistakes we made in 2008.

John Metzidis is an attorney in Santa Monica. He is a concerned member of the LGBT community, and the opinions expressed herein are his own. He can be reached at john.metzidis@gmail.com.