Proposition 8 Recalls Landmark Case

Jane Pojawa

When they met at a pool party 12 years ago, Gary Freeman and Nick Macierz had no idea that their love would be at the center of a hotly contested political battle. They didn’t know that one day they would marry. But on Oct. 18, Nick Macierz, 53, and Gary Freeman, 62, did just that, with an intimate group of friends and family in attendance.

Gary and Nick are well-known around the Glendale College campus. Art students will recognize Nick from life-drawing classes and Gary is a familiar face in the photography and computer art realm.

The road to recognition of same-sex partnerships has been rocky. When Congress passed The Defense of Marriage Act of 1996, they effectively denied 1,049 federal rights and obligations related to marriage to same-sex partners. Closer to home and 12 years later, a ruling of the state Supreme Court extended the right of marriage to domestic partners, and then a closely-fought vote over Proposition 8 took that right away. Between May 15 and Nov. 4, an estimated 18,000 same-sex marriages took place in California. The Williams Institute at UCLA estimates that same-sex marriage could boost our state’s revenues by more than $63.8 million.

“An individual’s sexual orientation – like a person’s race or gender – does not constitute a legitimate basis upon which to deny or withhold legal rights,” declared Ron George, Chief Justice of the California Supreme Court, in writing the majority opinion that opened the door to same-sex marriage.

Attorney General Edmund G. Brown Jr. agrees. Just this month he said: “Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification,” adding “it deprives people of the right to marry-an aspect of liberty that the Supreme Court has concluded is guaranteed by the California Constitution.”

In layman’s terms, this means that denying consenting adults the right to marry violates their constitutional rights.

Nick and Gary’s romance bears no resemblance to another that blossomed about 60 years ago and yet in many ways they are fighting the same battle. Andrea Perez and Sylvester Davis met at work, a defense plant, in World War II. Andrea’s parents weren’t sure at first about their daughter’s new boyfriend, but the young couple was resolute in their love and soon they decided to get married. They were both Catholic.

When they filed for their marriage license, W.G. Sharp, the County Clerk of Los Angeles, denied it on the basis of California Civil Code Section 60, which provided that “All marriages of white persons with Negroes, Mongolians, members of the Malay race, or mulattoes are illegal and void,” and also on Section 69, which stated that “. . . no license may be issued authorizing the marriage of a white person with a Negro, mulatto, Mongolian or member of the Malay race.” Andrea Perez was Hispanic, which was considered white for legal purposes, and Sylvester Davis was black.

Andrea Perez and Sylvester Davis wanted to get married. Their families were happy for them. Their priest agreed to perform the wedding ceremony; an important factor in the Perez case, as marriage is considered a sacrament of the Catholic Church. Denying Perez and Davis this sacrament interfered with their right to practice their religion. And yet the state deemed the marriage unlawful.

Anti-miscegenation laws forbade interracial marriage and sometimes interracial sex between whites and members of other races. The colonies of Virginia and Maryland started the trend in North America with laws banning interracial marriages starting in the 1690s. South Africa, a country that now allows same-sex marriage, did not allow marriages between black and white citizens until 1985. Of course, the “new” South Africa has made huge strides in civil liberties since ending apartheid.

As with the ban on same-sex marriages, the justifications for laws banning interracial marriages were based entirely on a narrow interpretation of the Bible.

It took a decision of the state Supreme Court to overturn the anti-miscegenation statutes that had been in place since 1850. The majority opinion, written by Associate Justice Roger J. Traynor, held that: a) marriage is a fundamental right b) laws restricting that right must not be based on prejudice c) anti-miscegenation laws violated the constitutional requirements of due process and equal protection of the laws and that all of these components together meant that d) the California statute violated the Fourteenth Amendment of the U.S. Constitution by impairing the right to marry on the basis of race alone.

Perez and Davis started a chain of events that had far-reaching consequences for millions of other couples. California became the first state in the twentieth century to decide that laws forbidding interracial marriage violate the Federal Constitution. In Loving v. Virginia, 19 years later, the Federal Supreme Court upheld the decision of Perez v. Sharp: the government does not have the right to keep people from getting married.

The Davises went on to have a long and happy marriage. Andrea died in 2000, ending their 52 years together.

The Los Angeles of 2008 is very different than the Los Angeles of 1948. “Negroes” and “mulattoes” are more often referred to as “African-American,” “Mongolians,” are “Asians,” when their country of origin is unknown, and the vague “members of the Malay race,” are generally known as “Pacific Islanders.” All citizens, naturalized or native-born are considered Americans. Marriage and divorce are considered private matters.

Any male/female couple over the age of 18 can get married in California regardless of age difference, income or educational level, sexual orientation, weight, race, intelligence, number of children, religion (or lack of it), primary language, criminal record, health or prior history of failed marriages. Literally anybody can get married. Does it make sense to say that marriage may only be between a man and a woman in this context? No. The only justification is discrimination.

When California allows same-sex marriage, we’ll be in good company. Even Spain, the country that brought the world the Inquisition, and South Africa, whose “cultural contribution” of the 20th Century was apartheid, allow same-sex marriage. California is the “Perez v. Sharp state;” we led the country by striking down laws that allow for racial discrimination in marriage and we’ll lead the country in removing obstacles to same-sex marriage. Some states on the east coast have already made the transition, but California has a much larger and more diverse population. Just see what the next 60 years will bring. Like Andrea and Sylvester, Gary and Nick believe that in the end only love matters, laws change.

States that allow civil unions:
New Jersey
New Hampshire

California and Hawaii give same-sex couples some spousal rights under their domestic-partner laws.

Countries that allow domestic partnerships:

Countries that allow same-sex marriage:
The Netherlands
South Africa
Mexico City (regional)

See related multi-media project “Male Art Students Exchange Wedding Vows”