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SGN Exclusive Interview: Shannon Minter, anti-Prop 8 attorney
SGN Exclusive Interview: Shannon Minter, anti-Prop 8 attorney
by Mike Andrew - SGN Staff Writer

"It's been a pretty phenomenal week," attorney Shannon Minter told SGN early this week. "Iowa, Vermont, DC. Throw in Sweden. Fantastic!"

Minter, the legal director of the National Center for Lesbian Rights (NCLR), spoke with SGN by phone as he travelled to the airport on his way to Seattle for a Q-Law banquet on Thursday.

"It feels to me like we've reached a genuine tipping point," he said.

Minter has good reason for enthusiasm. He has dedicated the last five years of his life to litigation for marriage equality.

On March 5, Minter argued for the California Supreme Court to strike down Proposition 8, which reversed the court's previous ruling in favor of marriage equality. He was opposed by Ken Starr, former special prosecutor in the Whitewater investigation of Bill and Hillary Clinton. Starr represented, the organization which spearheaded the Prop 8 campaign.

Minter was also the lead attorney for the plaintiffs in the California court's historic marriage equality decision, which was announced in May last year. In that decision, a 4-3 majority of the court found that the state constitution guarantees the right to marry to all couples regardless of sexual orientation.

"It's been a pretty intense five years," Minter said of the experience. "It just flew by. I've never had a period of time fly by like that."

Although he personally argued the case against Prop 8 before California's Supreme Court, Minter would not predict what their decision would be. "The court gave us a very tough time in the oral arguments, but you never really know," he told SGN.

"The court has never been presented with this issue," he continued. "Can the amendment process be used in that way? To my knowledge, no court has ever been asked to decide that."

Minter argued that Prop 8 was improperly framed as an "amendment" to California's state constitution rather than a "revision." In California law, amendments require only a majority of voters, while revisions require two-thirds vote of the legislature in addition to a majority of voters. Minter told the court that stripping a minority community of a fundamental right required the more burdensome revision process.

"The stakes are extremely high," Minter said. "Will minority rights continue to be protected in California? It will be a tragedy if they uphold Prop 8. It will permanently detract from the court's stature."

Minter's NCLR is joined in the suit by the ACLU and Lambda Legal. They have also acquired a number of allies who filed amicus briefs with the court. Some 60 amicus briefs have been filed, 43 opposing Prop 8 and 17 in support.

On March 2, the California State Senate passed a resolution opposing Prop 8. The same day, the National Executive Council of the AFL-CIO voted unanimously to call on the court to strike Prop 8.

California Attorney General (and former Governor) Jerry Brown filed a response brief on behalf of the state opposing Minter's legal theory of the case, but asking the court to strike Prop 8 on different grounds.

"They have to decide within 90 days [of the March 5 hearing]," Minter said. "Probably we'll get only 24 hours notice that it's coming. If the court upholds Prop 8, we'll have to go to the ballot to re-amend the constitution. We have to be as prepared as we can."

Although Washington's State House of Representatives had not yet voted on the domestic partnership expansion when Minter talked with SGN, he was following developments in this state. "The incremental strategy makes sense for Washington," he said.

"There is a general strategy [for winning marriage equality]," Minter told SGN. "Litigation is secondary. Court cases are only possible when we've built a foundation through education of the public, and relationships with legislators."

"The California case was just the tip of the iceberg," he said, "and it came late in the day. There was an enormous body of legislation prohibiting discrimination, and relating to adoption of children. We weren't starting from ground zero. It would have been extremely difficult to win the court case without that."

Asked if some people might find it odd that an attorney would emphasize political work over litigation, Minter replied, "You shouldn't find it odd. It would be an extreme disservice to the community to suggest that lawyers come like rescuing knights. There's no shortcut, no substitute for hard political work. It's an ongoing process to win equality like every other group has done."

Minter wants to see a new wave of community activism. "We have huge momentum," he told SGN. "Iowa, Vermont, DC. We can seize the opportunity. Full legal equality is within our sights. It depends on us."

"We know that's what changes people's minds. A personal relationship with an LGBT person. Sustained conversation," Minter continued. "We have to help the public take that last step. It's the most rewarding feeling to see people who haven't fully supported us come to understanding."

Asked about potential constitutional challenges to the federal Defense of Marriage Act (DOMA), Minter cited a suit filed on March 3 by the Gay and Lesbian Advocates and Defenders (GLAD) in Massachusetts. "They have compelling plaintiffs and narrowly defined issues," he said.

In GLAD's suit, eight couples and three men whose partners have died are challenging DOMA Section 3, which denies them Social Security benefits, retirees' benefits, and tax and passport protections. Dean Hara, who married the late Congressman Gerry Studds (D-MA) in 2004, is one of the plaintiffs.

"I am concerned people will be tempted to bring less thoughtful cases," Minter warned. "We don't want a weak case being the first one to reach the US Supreme Court because then it's all over."

Minter also reflected on the lessons of the Prop 8 campaign in California. "It was hard fought in California. We came close," he said. "We learned it really requires full commitment. A tremendous investment of time and money. We were complacent in California. It was heartbreaking."

Nevertheless, Minter believes there was positive experience in California as well.

"For all the criticism of California, leaders in our state were preparing for years ahead of time, and we benefited enormously," he told SGN. "Long before anything was on the ballot, they were doing in-depth research on messaging."

"Contrary to what you might have heard, we had a very strong foundation of support in communities of color," Minter continued. "Our group, Equality California, built especially strong ties with the API [Asian-Pacific Islander] community. There was really visionary work going on." Analysis of voting on Prop 8 indicates that Asian voters rejected the measure by the largest margin of any ethnic group.

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