Saturday, March 07, 2009


We had a wow, now we have a damn.

It appears, based on oral arguments, that the California Supreme Court is going to uphold the constitutionality of Proposition 8, known as PropHate.

It's really no surprise; supporters of same-sex marriage knew it was a long shot since it involved convincing the Court that PropHate involved a "revision" to the structure of the state constitution rather than an "amendment" to it. Still, it's a bitter disappointment.

The upside is that the justices also seem disinclined to invalidate the 18,000 same sex marriages that took place after the Court's May decision allowing for them.

However, that left the Court struggling with the question of how to do both when the measure says (in full, mind you) "Only marriage between a man and a woman is valid or recognized in California." It even lead one Justice to suggest the possibility of requiring the state "to employ non-marriage terminology" so that the state would deal only in "civil unions" and "domestic partnerships" rather than "marriages."

Perhaps more importantly in the long run, such a split decision - upholding both PropHate and the same-sex marriages already existing - could open a door to a federal appeal. David Cruz, a professor of constitutional law USC, said
[h]aving some gay couples allowed to stay married while others are prohibited from saying "I do" would provide legally plausible, if politically debatable, grounds for an appeal under the equal protection clause of the U.S. Constitution....
That also seems to me a long shot but it can mean that the fight is not yet over.

Meanwhile, the expected outcome at the state level has left existing same-sex couples relieved that their marriages are likely not at risk but fearful of "being isolated culturally and legally."
"It will be challenging for those 18,000 couples," [Jon] Davidson [of Lambda Legal] said. "They are likely to be frequently asked to prove that they are married. ... They will be going forward where no couple has gone before."

At the same time, the gay married couples may help educate Americans about same-sex marriage, Davidson said.

"They will be kind of living examples of the fact that no one else is harmed by the existence of married same-sex couples," he said.
That fact, that demonstration of lack of harm, was what caused the move to undo same-sex marriage in Massachusetts to collapse. And it was why I was hopeful - wrongly so, as it turned out - that PropHate would fail. Still, I can't but believe that ultimately, and I know it's a cliche but still, I believe that ultimately, justice will prevail and same-sex marriage will be as unremarkable as straight marriage and the sight of two men or two women tenderly holding hands in public will elicit only smiles, not frowns.

A First Footnote: Oddly enough, the decision is coming at a time when evidence is increasing that allowing for same-sex marriage brings economic benefits not only to the couples but to the states in which they live. And some supporters of same-sex marriage in the Minnesota state senate are planning on introducing legislation to allow for such marriages based on exactly that argument.

One of those supporters, state Senator Scott Dibble, notes that legally married couples are generally in better financial shape overall.
He says examples [of advantages] include the joint ownership of property; joint credit; the ability to share health-care benefits with a partner; and inheritance rights. ...

Amy Johnson, executive director of the gay, lesbian, bisexual and transgender equality group OutFront Minnesota, says that in the long run, routine rights that married couples may take for granted amount to all sorts of hidden costs for coupled but not legally married homosexuals. ...

Gary Gates, a demographer at the Williams Institute at the UCLA School of Law who researches sexual orientation law and public policy, says the state itself would see a "noticeable economic benefit" from legalized same-sex marriage.

Since a specific analysis of Minnesota has yet to be completed, Gates uses findings from other states and compares them to Minnesota's roughly 15,000 same-sex couples. He guesses the state could see as much as $10 million in additional revenue over the first three years.
A number of activists wonder if this is the right approach to take, but as Amy Johnson said, "I'll take your vote, even if you're not really understanding [the larger argument]." [Brackets in original.]

A Second Footnote: A point that struck me in the article linked above (which came via Jonathan Turley's website) was when California Supreme Court Chief Justice Ronald George
posed a hypothetical in which same-sex marriage wasn't upheld by the court, and then was followed by two initiatives - one that legalized such marriages and a subsequent one that outlawed them.

Wouldn't it be a "one-way street," he asked, if one group was allowed to extend rights while another was prohibited from removing them?
I'm very tempted to say "Yes. And Good." The history of human rights has been one of expansion, one of gradual but increasing recognition of rights previously ignored or denied. A "right" that can be taken away by a simple majority vote is not a right at all but a mere privilege dependent on current political winds.

And yes, I am aware that requiring a three-fifths or two-thirds or whatever majority vote only raises the bar for stripping away rights, it does not eliminate it. That only serves to emphasize that what we are talking about here, the laws and initiatives and court decisions, is not actually rights or right-and-wrong but legalities. And as we all know, the law and justice are not the same thing. Given the choice, I will always demand that the former conform to the latter and not the other way around.

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