California Marriage Update

An analysis of the hearing from Manuela Albuquerque, recently retired City Attorney for Berkeley, supports my initial optimism. One thing I am gratified to learn was brought up:

Justice Corrigan asked the challengers why the court should not leave the issue of gay marriage to the legislature or voters to decide, since when the Constitution was first adopted it was probably assumed that marriage was between persons of the opposite sex. She, however, quickly conceded that the Constitution is not interpreted based on any theory of “original intent.” All parties conceded that the court could not leave constitutional questions to voters. The courts have to decide whether a law violates the Constitution. The voters can always amend the Constitution if they disagree.

Which, of course, is exactly what I've been saying all along. And of course, the anti-gay right will try to do just that. May they have as much success as they've had here.

This also caught my eye:

The state of California has passed sweeping laws to prevent discrimination against gays and lesbians in many areas, including allowing them to adopt children. It has also created a domestic partnership law that gives domestic partners virtually all of the rights and responsibilities of marriage. Many of these laws have lengthy findings about the terrible history of discrimination against gays and lesbians, and why excluding them from various rights and privileges has no basis. The passage of these laws makes it virtually impossible for the state to come up with any justification for discriminating against gays and lesbians since virtually every rationale would be inconsistent with an existing State law and its findings.

This seems to further erode Chris Crain's assertion that California is not a good place for this kind of suit. Quite the opposite, as I noted. Upholding the current law seems to be less defensible in California than just about anyplace else.

Thanks for Timothy Kincaid at Box Turtle Bulletin for the heads up.