Anti-Prop 8 attorneys to speak in Seattle
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Anti-Prop 8 attorneys to speak in Seattle
by Mike Andrew - SGN Staff Writer

The American Civil Liberties Union (ACLU) of Washington State will feature attorneys working to overturn California's Prop 8 at its upcoming annual membership conference. The conference takes place Saturday, March 14, at Seattle Center's Intiman Playhouse.

In exclusive interviews, SGN talked with the featured attorneys, Lambda Legal staff attorney Tara Borelli and Lori Rifkin of the ACLU.

Borelli has been a staffer at Lambda Legal in Los Angeles for two and a half years, and is half of one of the 18,000 same-sex couples married in California before Prop 8 reversed state law. "The case is personally meaningful to me," she told SGN, "and that gives me an even greater sense of professional responsibility."

Rifkin joined the staff of ACLU of Southern California in October, after working for a private civil rights law firm in San Francisco. She describes the Prop 8 case as "one of the most important civil rights cases the court has ever had before it."

Three separate petitions have been presented to the California Supreme Court in the Prop 8 case, filed by Lambda Legal, the ACLU, and the National Center for Lesbian Rights. All of them ask the court to strike down Prop 8 on the grounds that it constitutes a fundamental "revision" of the state's constitution, and not merely an amendment. In California, constitutional revisions require a two-thirds vote of the state legislature and the voters, but amendments can be passed with only a majority vote.

Borelli was on what she calls the "significant team" of about two dozen attorneys, researching legal issues for the attorneys who argued the case in court. "The community should feel proud," she said. "The team was really outstanding. The attorneys leading our team have worked in the field for decades."

The California Supreme Court must rule on the Prop 8 case within 90 days of the oral arguments. Although she followed the oral arguments closely, Borelli declined to predict an outcome. "It's hard to call," she said. "We think the law is on our side, in light of the court's past rulings."

Rifkin agreed. "It's hard to predict from the arguments," she told SGN. "You can never tell why justices ask certain questions or react in certain ways. It's not always an indicator of what they think."

Both Borelli and Rifkin believe a victory in the Prop 8 case would have a tremendous effect nationally. "If the court strikes Prop 8, it will enliven the movement," Borelli said. "This is being watched across the country."

"The original marriage decision [in May 2008] was significant," Rifkin told SGN. "If Prop 8 is struck down, it will be significant not only for the LGBT community but for anyone who is a member of a minority that is disregarded."

Rifkin noted that the NAACP, the Mexican American Legal Defense and Education Fund, NOW, and several other civil rights and community organizations have joined the suit against Prop 8.

The California Labor Federation and a number of union locals have also signed on to amicus briefs, and the AFL-CIO called on the California Supreme Court to strike Prop 8 in a resolution passed on March 4. "We've been very fortunate to enjoy great relationships with unions," Borelli said.

Both attorneys fear that a loss in the Prop 8 case might have dire consequences. "If they uphold [Prop 8], it will be devastating," Borelli told SGN. "Not just because of marriage, but because of what it would mean for our form of government if a bare majority of voters could strip the legal rights of minorities."

"And if they uphold it, it can't be appealed to the US Supreme Court," she continued, "because the case revolves around specific language in the California state constitution."

In addition to discussing the implications of the Prop 8 case, Borelli and Rifkin will also talk about strategies for future movement toward equal rights for LGBT couples. They gave SGN some advance insight into their thinking.

Borelli noted that the legal situation in the US is complex. "This is the landscape right now," she said. "There are states with marriage, states with different relationship statutes, and states with constitutional amendments [prohibiting same-sex marriage]."

"In the states with constitutional amendments, we have to show that the amendments can't be used to vacate child custody orders, can't be used to void contracts between partners, and can't be used to challenge domestic partnership benefits," she continued.

In states that do not prohibit same-sex marriage by constitutional amendment, Borelli believes there are opportunities for legislative action. "It's an exciting time for state legislative change," she said. "I understand you [in Washington] are about to pass a domestic partnership bill. That's a step forward. But we can't stop at half measures. Domestic partnerships and civil unions are not adequate to protect same-sex couples."

Borelli sees the federal Defense of Marriage Act (DOMA) as an obstacle to full equality for same-sex couples, but she urges a cautious approach. "DOMA is harmful," she says. "People having difficulties every day because of DOMA, and I'm glad to see the Obama administration is committed to repeal. But a broadside attack on DOMA could lead to disaster that would set the movement back decades."

As a model of how to proceed, Borelli cites the recent suit brought by the Gay and Lesbian Alliance Against Defamation (GLAAD), which challenges Section 3 of DOMA, the section prohibiting federal recognition of same-sex marriages even if they are legal in the state in which they are performed.

"The GLAAD lawsuit has been planned for years," Borelli said. "It's a thoughtful, targeted approach. Basically they're saying you can't recognize one class of marriages and not another class. They're asking for particular relief through a particular series of steps."

In contrast, Rifkin emphasizes the role of political persuasion. "The courts will continue to play a role," she says, "but we also have to do public education. We have to have the one-on-one conversations with people who are not part of the LGBT community and who may not understand the LGBT community."

"LGBT equality is inevitable," she says, "and it will come about through a combination of court decision, legislative action, and public education."

The panel discussion featuring Borelli and Rifkin begins at 3:30 p.m. It is preceded by a discussion of the military tribunal proceedings at Guantanamo Bay at 2:00 p.m.

Registration for the ACLU event begins at 1:00 p.m. It is open to the public and free, with a suggested donation of $10, or $5 for students.