Well, this time it’s really happening: Next Tuesday, we’ll return from the holiday weekend to face the (probably funereal) music, as the California Supreme Court has announced the filing of its opinion in the Proposition 8 case for that date (see embedded link).
Just a couple of days ago, speculation that the opinion was about to issue caused me to issue this post. There, I suggested questions that the court would likely need to answer in deciding that the ballot initiative process had been properly used in passing Prop 8, which purports to amend the state’s constitution to deprive same-sex couples of a right — marriage — that the court had just stated was “fundamental.”
To those thoughts, let me just add a quick supplement here. It will be interesting to see how the court handles the question of domestic partnership — the marriage equivalent without the name or the social approbation — that remains in effect in California after Prop 8. In their decision in In Re Marriage Cases, the justices weren’t gulled by the argument that domestic partnership was “just as good” as marriage. Although there are many problems with the status, the court leveled the most telling criticism at it: If it’s just the same thing, why go to the trouble to create it? The whole idea is to fence same-sex couples out, thereby purposefully creating a class of second-class citizens. In one sense (not a practical one), this is even worse than a complete denial of marriage benefits to same-sex couples, which at least have been supported with legal and social arguments (however weak).
Yet during the oral argument in March (I live-blogged it here), at least one Justice (Kennard) seemed to suggest that Prop 8 might be less objectionable because it doesn’t remove the rights of marriage, “just” the title. Will the court stand on that point? If so, what was all the shouting about last year?
Look for a summary here shortly after the opinion issues.
Categories: Gay Rights, Marriage Equality, Proposition 8 1085, 1086, 1087, 300, 303, 307, 374, 502, 514, 838
Breaking my vow to blog only once a day, I can’t resist adding a few comments to my earlier, live-blogging post.First, calling something a “fundamental right” is essentially meaningless if it can be taken away by simple majority rule. Justice George’s opinion for the majority in last May’s In re Marriage Cases ruling contained lofty pronouncements about the right of all people to marry someone of their choosing, and about the clear message in the legislative approach of granting the rights of marriage while withholding the label. If I’m right in my prediction about Justice George’s vote based on his questioning at oral argument, he’s willing to let the people abrogate these rights by a simple majority vote, blaming it on the constitutional initiative process.
(“Riddle me this, Batman: When is a fundamental right not worth a sou?” “When it’s established by the California Supreme Court.”)
The second point is closely related: The process for amending the constitution in California, and indeed the entire direct democracy idea, is just plain loony. I know I’ll regret saying this when Prop 8 is reversed, as I predict will happen within a few years, at most. But even when that happens, one doesn’t need to restrict oneself to Prop 8 to find myriad reasons for questioning this whole process. I looked at the raft of propositions on last November’s ballot and was struck by their range and complexity. Are the voters really equipped to vote a simple “up or down” on a complex statute? Legislators, fed by committees and countless experts, are barely competent to engage in this high degree of difficulty exercise. Leave the amateurs out of it, please.
Tomorrow I will have final thoughts on today’s arguments and where the movement goes, in California and elsewhere, from here. And although I typically have no idea what I’m going to blog about in the future, I can state with assurance that next week’s blogs will be rife with withering analysis and condemnation of (some of the) anti-marriage-equality forces, whose sanctimonious dissembling I can no longer bear. First up will be Maggie Gallagher, whom no reasonably intelligent person should take seriously. (As a start, go to Andrew Sullivan‘s blog where he summarizes some of the reaction to today’s Prop 8 arguments, including hers.)
Categories: Gay Rights, Marriage Equality, politics, Proposition 8 292, 307, 370, 450, 505, 507, 513, 514, 515, 516, 517, 518