Editor’s Note: Brenda Feigen is counsel to Kenoff & Machtinger, LLP, where she practices anti-discrimination and entertainment law. A graduate of Harvard Law School, she co-founded Ms. Magazine with Gloria Steinem and directed with (now Justice) Ruth Bader Ginsburg the Women’s Rights Project of the ACLU. Her memoir, Not One of the Boys: Living Life as a Feminist, was published by Alfred A. Knopf in 2000. She moved from Manhattan to Los Angeles to produce her first feature film and currently lives there with Joanne Parrent, her longtime partner and spouse. 

Things have been happening so fast in the gay/lesbian legal world that I am dividing this into three sections. The first is, once again, about Prop 8 in California; the second addresses the federal Defense of Marriage Law (DOMA) that is being challenged in federal courts in California and Massachusetts; the third is about the horrible Don’t Ask, Don’t Tell federal law that infringes on the constitutional rights of gays and lesbians in the military and is finally being attacked. My thesis is that these sorts of constitutional issues are not appropriately decided by voters, as Prop 8 was. It provides the perfect example of the tyranny by the majority of a minority group. There is certainly a role for state legislatures and Congress to legislate the wrongs away, but there is also plenty of room for the courts to decide what does or does not offend the 14th amendment of the U.S. Constitution.

I. Prop 8

When I last wrote about the Prop 8 mess in California, I expressed my delight that two big-deal litigators, Ted Olson and David Boies, have started a lawsuit (Perry v. Schwarzenegger) in the U.S. District Court in San Francisco challenging Prop 8 as being unconstitutional. The argument being that it denies gays and lesbians both equal protection and due process rights. The big surprises came first when CA Attorney General Jerry Brown wrote a brief agreeing with the unmarried gay plaintiffs that Prop 8 unfairly deprived them of equal rights. And then even Republican Gov. Arnold chimed in that the matter is for the courts to decide. It is rare, to say the least, to have the highest ranking state officials disapprove of their own state constitution. That said, Obama’s Justice Department will undoubtedly be all alone in its defense of California’s newly, badly amended constitution.

It’s really too bad that most of the groups lobbied hard to defeat Prop 8 are deploring this lawsuit. I, on the other hand, can’t imagine anything worse than having this fight repeat itself at the polls every two years. The Supreme Court isn’t going to get any more liberal. The older members are all Democratic appointments. They, including outgoing Justice David Souter, are the most likely to leave sooner rather than later. Obama will appoint liberals to replace them, but the balance in the Court is unlikely to change for a very long time, given the relative youthfulness of the Republican appointees. What are the detractors really waiting for? Another chance to spend millions of dollars going back and forth on Prop 8, its repeal, its return and so on, like a ping-pong ball. Finally, Hollywood has awakened to the issue and to how bad it is, so we’ll get the support of a gaggle of movie stars, but that still feels like taking or asking for a handout. As I’ve said before, I do NOT want my rights determined by voters, even a majority of voters. I belong to a minority group (gays and lesbians) who do not deserve to be tyrannized by the majority in any way whatsoever.