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California's Proposition 8 and Gay Marriage
I was opposed to Proposition 8, and voted against it. In my opinion any reasonable reading of the equal protection clause of the US constitution prohibits government from granting more rights to some citizens and fewer to others. That means, if government offers any "rights" to married couples, everyone has to have the opportunity to marry whom ever they wish. And, government certainly does offer more rights to married couples, from income tax filing to inheritance rights to adoption rights.
But, I am bothered by the attempts to overturn the decision made by California voters to define marriage as being limited to one man-one woman partnerships. Our voters have every right to do what they did last Tuesday, unless doing that was a violation of either the state constitution or the US constitution. It can't be a violation of the state constitution since it was an amendment to the state constitution, so the only way that what the voters did was legally wrong was if it violated the US constitution. And, that decision has to be made by the courts.
There are currently waves of public demonstrations against Proposition 8. The only effect these demonstrations can have is to demonstrate to the courts that the public believes that the US constitution prohibits Proposition 8 from ever becoming law. But, why would the courts believe that even a 100,000 person demonstration was meaningful when the people voted decisively that Proposition 8 become law? So, other than being an outlet for the rage of those who support gay marriage, the demonstrations seem pointless.
Far better to challenge proposition 8 in the court, and this is already underway. The courts will know where the people stand - against gay marriage - but will have to decide whether the US constitution trumps the will of the people. It does, of course, but courts are known to ignore simple facts like that, especially right wing courts such as we are now cursed with.
I am not planning to take part in any of the many demonstrations against proposition 8. I hope this explains why.
But, I am bothered by the attempts to overturn the decision made by California voters to define marriage as being limited to one man-one woman partnerships. Our voters have every right to do what they did last Tuesday, unless doing that was a violation of either the state constitution or the US constitution. It can't be a violation of the state constitution since it was an amendment to the state constitution, so the only way that what the voters did was legally wrong was if it violated the US constitution. And, that decision has to be made by the courts.
There are currently waves of public demonstrations against Proposition 8. The only effect these demonstrations can have is to demonstrate to the courts that the public believes that the US constitution prohibits Proposition 8 from ever becoming law. But, why would the courts believe that even a 100,000 person demonstration was meaningful when the people voted decisively that Proposition 8 become law? So, other than being an outlet for the rage of those who support gay marriage, the demonstrations seem pointless.
Far better to challenge proposition 8 in the court, and this is already underway. The courts will know where the people stand - against gay marriage - but will have to decide whether the US constitution trumps the will of the people. It does, of course, but courts are known to ignore simple facts like that, especially right wing courts such as we are now cursed with.
I am not planning to take part in any of the many demonstrations against proposition 8. I hope this explains why.
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The constitution also grants the right of assembly. These protests are part of our democracy and people have a right to express their opinion through them. They also have a right to boycott. The conservatives have been using this method for years to scare television stations into not broadcasting this or that. Remember the Saving Private Ryan debacle?
You can think the demostrations are pointless and you don't have to attend them. That's your right. But that doesn't mean they won't happen. And it doesn't mean they shouldn't.
Sometimes public opinion is on the wrong side of justice. Demostrations can be a potent reminder of this.
November 8, 2008 12:47 PM | Reply | Permalink
I absolutely agree with what you say. People do have the right to assemble, to demonstrate, and to try to influence both public opinion and the actions of government. And, I favor boycotts where they are appropriate - aimed at clear targets - and I would also support a general strike when that seems appropriate.
California voters have a long history of being on the the wrong side of justice. Years ago we actually voted to allow landlords to discriminate in who they would rent to, based on any criteria they wanted to use. In that case the courts quickly ruled that we voters didn't have the right to do that. My hope is that they will just as quickly rule that we voters didn't have the right to amend the state constitution as we did.
November 8, 2008 12:57 PM | Reply | Permalink
I think the way to resolve the "Prop 8 vs equality" conundrum is: remove marriage as a right for everyone. That is, convert all existing marriages to civil unions, and make civil unions available to everyone. Churches can hold marriages, and agree to recognize other churches' marriages, and so on, but the state should conduct and recognize only "civil unions".
It's a big job and will piss everyone off, I admit. But, it should piss everyone off equally, and that's the key. :-)
November 8, 2008 4:52 PM | Reply | Permalink
As I fade slowly off the front page into oblivion, I bid you all farewell.
November 8, 2008 8:22 PM | Reply | Permalink
No so fast!
As I see it, gay couples are not seeking the same rights as straight couples; rather, even after 40 years, they continue to unabashedly seek ownership of the word "marriage" itself as mainstream American society understood and defined it for centuries - all the way back to the bible maybe. So gays can expect to keep losing for a while, whether they have legal ground or not.
November 9, 2008 3:30 AM | Reply | Permalink
No doubt that the word "marriage" has long meant a union of a man and a woman. The issue, though, is that the state provides benefits to those who are married, so, per the equal protection clause of the US Constitution, those benefits must be available to everyone, whether "married" in the conventional sense, or in a same sex "union" by any name. In fact, a marriage, as far as the law is concerned, is just a partnership. If this issue were cut and dried it wouldn't be an issue.
An analogy is that the US Constitution used to define a "man" as a male of the white race, and that stood for decades, but eventually that injustice was corrected. It is now long past the time to correct the injustice with marriage.
November 9, 2008 12:23 PM | Reply | Permalink