Prop 8 Round-Up

I decided, since the news was coming so fast and furious and I needed time to digest the Court's opinion in upholding Proposition 8, to make it this week's Friday Gay Blogging.

Building on my original post, here's the opinion.


Prop 8 Ruling -

One thing to keep in mind in this discussion, which Eugene Volokh quotes Chris Geidner as stating quite clearly:

First, this is not a ruling about whether marriage equality is correct or just. This is a ruling about whether the California Constitution allows a measure like Proposition 8 to be voted into the Constitution by the people. Even if there is some overriding federal claim that marriage equality is guaranteed by the U.S. Constitution, it was not raised by the parties here....

Here's Geidner's post in full. The bulk of it is a plea for -- I'm not sure what to call it: restraint, I guess, although I note that his call for restraint is directed toward the gay community and its allies, while the religious conservatives, much more prone to violence in pursuit of their aims (see this post by Sara Robinson [and this follow-up, which provides some much-needed (apparently) definitions], which strikes me as somewhat alarmist, but not outside the bounds of reality -- I mean, look at who our domestic terrorists have been over the past 10-20 years.). I'm tired of being told to calm down when faced with opponents who have no standards, no ethics, and no morals. (This is not name-calling: this is merely a reasonable conclusion based on recorded fact.)

Mary L. Dudziak makes the same point in her first post on the decision:

The court carved out space for the rights of same-sex couples protected in the Marriage Cases, emphasizing: "among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage - albeit significant - that has been removed by this initiative measure." (emphasis added). Taking into account the "actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws," (emphasis added), the court found Prop 8 not to be a constitutional revision.

Andrew Koppelman reaches a similar conclusion. He raises some other points that I will come back to.

Dale Carpenter raises a point in his comments that troubled me as well:

So marriage wasn't really the main issue in Marriage Cases, it was convenient shorthand. Elsewhere, the Strauss court tells us that Prop 8 has only a "limited" effect, carves a "limited exception" to the right to marry, changes the content of a right in "one specific subject area," diminishes only "one aspect" of a fundamental right, and so on. This is another way of saying that what gays lost in Prop 8 -- "marriage" -- wasn't all that important.

Read his whole post -- the contrast between the section he quotes from the decision in In re: Some Marriages and the relevant passage in Strauss vs. Horton (the official title of the new decision) is striking: after building a large portion of its reasoning on the effect of the word "marriage," the Court essentially bent over backward to say that wasn't really what it meant.

(Carpenter also notes that there is nothing in the Strauss decision that prevents the voters of California from revoking domestic partnerships by referendum -- which, I agree, would be the next logical step for the anti-gay right, if they weren't already on alert that they're going to have to go back to the Mormons for funds to defeat the next, pro-marriage referendum), but my take is, that's not going to happen.

Two thoughts on this:

First, the decision in Strauss is a disaster in terms of basic civil rights guarantees. Granted, it will have limited effect, but in California at least, it is now on the table that any well-organized, well-funded group can strip fundamental rights from a minority by the kind of campaign we saw for Prop 8: distortions, misrepresentations, and outright lies all dressed up in expensive ads with lots of air play. (Fortunately, most state constitutions are more difficult to amend. The California method is insane, but it's theirs and they're going to have to deal with it.)

Second, the reasoning vis-a-vis the word "marriage" is fairly scandalous after the effort the Court put into delineating the importance of the word to the status of the institution in Some Marriages. Let's not be fooled by this one: it's as much a political decision as a legal decision, as far as I can see. The acrobatics here remind me of nothing so much as the New York Supreme Court's decision in their marriage case, in which the reasoning was, to put it mildly, strained. It's also worth noting that the California Court is not the only one to recognize the importance of the word as an essential part of the institution.

And the Court has now said that, in California at least, separate is good enough, whether it's equal or not.

And then there are the couple whose marriages are still valid. This is going to be fun to watch. (I can't help but wonder whether the Court is hoping for a law suit that's going to bring the question back to them in a less potentially explosive form.)

There will be more on this. People are still posting about it, and I have a lot more material to go through. But I decided you do get dessert today, a totally fiery treat from Queerty: