Saturday, March 07, 2009

Thoughts on Prop 8 and the California Supreme Court

Yesterday, the LA Times' editorial page endorsed taking government out of the business of handing out "marriage" licenses, and instead just allow every adult who wants to join with another adult in a consensual relationship to apply for a civil union license. Let each church, synagogue, temple, mosque or other religious institution decide on its own whether to perform marriage ceremonies for those of the same sex or not.

Hmmmm....I wonder where we heard this before? I had to smile when I read the line in the LA Times' op-ed where it said, "The subject has come up repeatedly in blogs and conversations, but this was the first official, public forum to give it voice, and it shouldn't be the last."

Of course, I was not the first person to suggest the separation of marriage and state solution to the conundrum of allowing same sex marriages. Here is noted social historian Stephanie Coontz with an enlightening article stating that state-sanctioned marriage licenses are newer than we think in terms of history.

And here is a libertarian, David Boaz, writing in Slate.com in 1997 (!) on this issue.

I must, however, say something else, and that involves the oral arguments at this past Thursday's hearing at the California Supreme Court. It looks like most of the Court is going to uphold Prop 8, if I read this article in the LA Times correctly. However, if the justices who wrote or supported the majority opinion last year in the Marriage Cases vote to uphold Prop 8, those justices owe the public an apology.

As readers of this blog know, I was not a supporter of the California Supreme Court's decision last year because I saw the decision as an elitist usurpation of the right of society to draw cultural distinctions such as "Civil unions for homosexuals, yes; marriage, no." I also thought the Court's majority opinion was too glib in opining there was no substantive difference between a "civil union" and "marriage" because the Court failed to respect the religious context in which people see the word "marriage."

It appears at least three of the four justices have gotten the public's message about there being a significant difference between civil unions and marriage. I noted the odious Ken Starr of Pepperdine University's opening point was that he was not interested in interpreting Prop 8 as outlawing "civil unions." Had he said Prop 8 did outlaw civil unions, the Court would have undoubtedly overturned Prop 8 and found it was a revision of so many laws as to be an unconstitutional proposition.

If, however, those justices who supported the majority decision in the Marriage Cases still think there is no difference between marriage and civil union, then why not overturn Prop 8 on the basis of the right to privacy (California Constitution, Article I, Section I), i.e., Prop 8 must be overturned because it negates the privacy rights of people to choose, as consenting adults, who they wish to marry? This was the argument the California Attorney General's office set forth in its friend-of-the-court brief. Yet, from reading the LA Times article, it looks like at least one of the justices from last year's majority opinion was suddenly stymied about whether there is a workable definition of the word "inailenable." As if the phrases "due process" and "equal protection" are so clearly understandable without real-life examples...

Whichever of the four justices who supported the Marriage Cases decision last year votes to uphold Proposition 8 is showing a lack of courage of conviction. Either "marriage" and "civil unions" are essentially the same and therefore people don't get to upend the rights of minorities' right to privacy any more than the legislature, or the words do in fact have different meanings.

And politically, do any of these four justices really think the religious right will leave them alone if they vote to uphold Proposition 8? I initially thought they might find protection if they vote to uphold the proposition, but at this point, I think they're kidding themselves if they think they are safe in voting to uphold Prop 8. This is a culture war and the religious zealots who pushed through Prop 8 are going to go directly after all four of those justices next year when they are up for elections.

All of this is why I had said, way back when the California Supreme Court held for same sex marriage, overturning Proposition 22 from 2000, that the Court was better off saying this is a non-justiciable "political question," and that we ought to let our society continue to sort this out. The irony of course is that our society will sort it out, and in a way the religious zealots won't like, either.

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