"Joy and pleasure are as real as pain and sorrow and one must learn what they have to teach. . . ." -- Sean Russell, from Gatherer of Clouds

"If you're not having fun, you're not doing it right." -- Helyn D. Goldenberg

"I love you and I'm not afraid." -- Evanescence, "My Last Breath"

“If I hear ‘not allowed’ much oftener,” said Sam, “I’m going to get angry.” -- J.R.R. Tolkien, from Lord of the Rings

Tuesday, May 26, 2009

Prop 8

The California Supreme Court upheld Proposition 8. Here's the story in the LA Times.

Strangely -- and I think fatally -- the Court left the 18,000 or so same-sex marriages solemnized under the previous law intact.

I don't want to comment further until I've had a chance to read the opinion -- I really have no idea what sort of logic the justices employed to come to this conclusion. If anyone has any insight, I'd love to hear about it -- that's what the "Comments" section is for.

Here's the part that I think makes the Court's ruling fatal:

Even with the court upholding Proposition 8, a key portion of the court's May 15, 2008, decision remains intact. Sexual orientation will continue to receive the strongest constitutional protection possible when California courts consider cases of alleged discrimination. The California Supreme Court is the only state high court in the nation to have elevated sexual orientation to the status of race and gender in weighing discrimination claims.

Update: Andrew Sullivan has the opinion up. He also has a take on the decision that I think is absolutely wrong:

It has been upheld. The 18,000 same sex marriages performed in California are still valid. For my part, I will leave the fine legal analysis to those trained in these matters (and link to them). Politically, this seems to me the perfect decision. It would have been dreadful if voters were retroactively told their valid vote was somehow null and void - it would have felt like a bait and switch and provoked a horrible backlash.

What he doesn't address is the question of whether it is proper for a majority of 50% plus one to strip fundamental rights from a minority -- in this case, a minority that the California Court itself has deemed deserving of protection.

I'll get into this later.


Robert said...

As expected, the California Supreme Court has ruled Proposition 8 valid. I’m not a legal scholar, but to allow the moral indignation of a majority to take away the rights of a minority seems unconstitutional to me and a strike against the freedoms paid for and preserved by our forefathers.

Hunter said...

That's why I'm very interested in reading the opinion -- I really can't fathom the logic behind this decision based on the reporting I've seen so far, and it sets a horrible precedent. In fact, there's a mordantly funny post at Box Turtle Bulletin that takes the next logical step.

That's what worries me the most about this decision -- whether the Prop 8 amendment is repealed at the ballot box or not, this precedent will stand until a future court overrules it. And quite frankly, this is not something that I'd be happy to see going to SCOTUS right now.