Tuesday :: May 26, 2009

Losing The Battle, But Winning The War

by Turkana

Buhdydharma put it best:

The California Supreme Court just cut the baby in half.

Gays are not equal under the law. Except for the 18,000 who are.

Mary Dudziak:

An initial take on the California Supreme Court decision today upholding Proposition 8, which bans same-sex marriage. (I will revise later if needed after a more careful read of the court's very lengthy opinion.) My bottom line: opponents of same-sex marriage may have won the battle, but lost the war.
Importantly, in today's ruling, the court did not take up the basic question of whether there is a fundamental right to same-sex marriage under the state constitution, but rather the more narrow question of whether Proposition 8, which overturned the court's earlier ruling that there was such a right, was a constitutional amendment or a constitutional revision. Amendments are proper subjects for voter initiatives in California. Revisions, which are more fundamental changes, must go though a state constitutional convention. The court found that Prop. 8 was an amendment (and so was proper), rather than a revision. To get there, however, the court narrowly interpreted Proposition 8.

Seneca Doane is more explicit:

Prop 8, now that the Supreme Court has stripped it down to a bare bone, does not say any of the following:

(1) It does not say that any provision of California law that invokes the label marriage does not also apply to these "civil unions" or whatever we call them -- how about "marrijezz"? -- that same-sex couples will henceforth undertake.

(2) It does not even say that these legal relationship aren't marriages.  It just says that the voters decided that in California, if they occurred after a certain date, we aren't going to call them that.  This isn't a minor point: it means that if a couple that has had a California "marrije" leaves the state, they have the right to say that they are "married" and have a correctly spelled "marriage" and -- when the Full Faith and Credit case eventually comes down -- have the same right to full faith and credit as does anyone from another state who got officially and legally married.

(3) It doesn't say that the participants in "marrijezz" can't call each other "husband" or each other "wife" -- or that they can't legally demand to be able to call themselves husbands and wives.  This was, in the eyes of the California Supreme Court, entirely about cutting a particular tag off a dress before allowing same-sex couples to buy it.  Do you think that the "this is called a marriage" tag is the same as the "I can call this man my husband or this woman my wife" tag?  Nope -- that's a different tag.  If voters want to eliminate the words "husband" and "wife" from same-sex partners, they have to pass a new initiaitve.  Does that start to convey a sense of how deeply the Court carved down Prop 8 today?

Voters thought that they were putting an end to gay couples being able to take a legal step that gave them the privileges and immunities of marriage.  They thought that they were undoing In re Marriage Cases.  What the Supreme Court said, essentially is: "OK, public, we will give you the ground that we technically have to cede -- and not a millimeter more.  Except for the one thing that you have specifically forced us to change, In re Marriage Cases stands as we wrote it.  Except now it's not a 4-3 decision, it's 7-0."

And Dudziak summarizes and concludes:

What does all this mean? One possibility, especially when considered in light of the court's refusal to invalidate the marriages performed before Prop 8 went into effect (on the basis that Prop 8 was not meant to be retroactive), is that opponents of gay marriage have won the battle, but lost the war. It was only by narrowing the effect of Prop 8, thereby preserving many rights of same-sex couples in California, that the court reached this outcome. As life goes on in California, with 18,000 legally married same-sex couples, voters may well discover, as have residents of other states, that the sky will not fall. It will simply be a matter of time before Prop 8 is overturned by a new state initiative.

Which is what the Courage Campaign intends to do.

Turkana :: 1:14 PM :: Comments (6) :: Digg It!