Proposition Eight
Last night I signed on to Twitter, to find a barrage of tweets that all looked similar: SupremeCourtFAIL, they read. Or something similar. A hundred varieties, but all the same in meaning: the Supreme Court of California had made a bad decision — they did not strike down proposition eight as unconstitutional. This morning, as I read on BoingBoing: Today a California court upheld a ban on marriages between persons of the same gender, because nothing harms society (and kids) like two people who love each other committing to a lifelong relationship based on care, compassion, and mutual responsibility.
The reaction on BoingBoing is typical, and it misunderstands what the Supreme Court of California is there for — to uphold and interpret the constitution of California. And that constitution now contains these words: Only marriage between a man and a woman is valid or recognized in California. The court does not decide whether the contents of that constitution are good or bad. They simply are.
I disagree with Proposition Eight. I was stunned when it was approved in November, and California’s constitution was modified to put it in — but now that it’s in, it is part of the constitution. The argument against Proposition Eight — that it constituted a change from what was previously there (if I am understanding it correctly) — was grasping at straws. Of course it changed what was there. There would be no need for a constitutional amendment, otherwise.
The big question that comes to mind is why the Court has decided that existing gay marriages should be recognised by the State. This is not simply because (as argued here), they have introduced huge grey areas by doing so. This is because it makes it appear as though they have not read the text:
Only marriage between a man and a woman is valid or recognized in California.
The court says that because there is no retroactive language, that this is not applied retroactively. This does not make any sense to me. California can either recognise gay marriages as valid, or it can refuse to do so. Every time a gay couple files their state taxes as a married couple, or files for divorce, or fills out any other forms that indicate they are married — if the state accepts this as being OK, they are recognising a valid marriage between a same-sex couple. Which goes against the words in their constitution. They are not allowed to do this.
It does not say “the State of California will not issue marriage certificates for same sex couples”. But that appears to be the interpretation of the Supreme Court of California. Can somebody explain that to me?
I get the part where they cannot overturn a constitutional amendment that was made as part of a fair and democratic vote. I do not get the part where they interpret it as a completely different sentence. It’s one sentence, for crying out loud!
NOTE: I have never studied law. I am even more unfamiliar with California law. I also did not hear the actual arguments in court. I may very well be missing some legal subtleties.
It is important to understand that I am vehemently against Proposition Eight. However, I do not feel that it is a court’s role to reverse a legal constitutional change based upon a democratically conducted vote.
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The “failure” of the court wasn’t to let Prop 8 stand even though it’s awful (as the Boing Boing types would have it), but that the court didn’t think an amendment of its kind in the face of what the constitution was previously interpreted as saying (that homosexual couples’ marriages are protected by the constitution because the constitution guarantees equality, and under this interpretation equality according to sexual orientation in addition to the other classes) was a fundamental change, a revision, of the constitution.
A revision, procedurally, requires legislative approval, some sort of public focus groups/workshops, and other steps before it is put to the voters. A revision to the constitution is something that changes the spirit of the document in a significant way. An amendment, which is what Prop 8 was moved as, is nothing so drastic: an insertion of an extra right; an elimination of a right; some extra text that doesn’t really interact much with the rest of the document.
The court did not think, as one of the plaintiffs did, that Prop 8 was actually a revision. In part this was cemented by the fact that the attorney general, representing another plaintiff, told the court straight out that that is not what their position was. The side was split, and the court was left with little compelling reason to view Prop 8 as a revision.
I’m disappointed that the court didn’t provide more guidance about how to deal with the interaction of the classes its decisions created. I’m disappointed that the plaintiffs couldn’t get on the same page about the challenge to Prop 8. I’m angry that Prop 8 was ever put on the ballot. I’m angry that the constitution can be amended by a majority of active voters (not even a majority of the voting population). But I’m not mad at the court or think they should have answered some moral question rather than the technical legal question they were asked to address.
@Backpacking Dad
It has been posited that they purposely left inconsistencies and open questions. It was not really a valid option for the court to reject Prop 8, so they instead left existing gay marriages as valid and inequalities amongst gay couples … the idea being that when society does not collapse from the moral depravity that is love everybody will come to their senses.
I’m skeptical, and very much uncertain that people actually have these “senses” somewhere to “come to”.