Thursday, May 28, 2009

Prop 8 Ban Upheld in California

LIPSTICK: It's been all over the news, but Dipstick, do you want to give us an update/political commentary about what happened and where we're going from here? We've been waiting patiently. [tapping fingers on desk]

In the meantime, patient readers, have a listen to what this fella has to say.

Dipstick Responds
Sorry Lip, I was busy following all the tweets, reading about the celebrity reactions and trying to interview people involved in the decision. Plus I took a day off yesterday to go to the beach. (See cute pic of Olive in her first kayak ride) Guess I let you L&D followers down.

Here's my take. The court ruled that Prop 8 will stand, but those 18,000 people married last year in California are still married. WTF? How can that be okay? Some gay people have rights and others don't? THAT doesn't seem constitutional to me. Perhaps this could be our in on getting this whole thing over-turned. You legal scholars out there, (Mossy) be sure to let me know if I'm way off base here.

In the meantime, all the gay rights organizations are saying we're going to take this back to the voters, perhaps as early as 2010. I'm all in favor of that, because I really do believe the pendulum is swinging in the direction of justice and if asked to vote again for gay marriage, Californians will vote YES!


Anonymous said...

Okay, so I'm not exactly a legal scholar, but I am a big law nerd, and since you shouted out to me specifically, I'll comment.

Those 18,000 marriages were upheld because Proposition 8 was not retroactive. The court had the opportunity to stay its decision in May 2008 and wait until the election to permit same-sex marriage, but it declined. Reversing those marriages after Prop8 would have been a huge stretch, in a legal sense. But the court is not saying that some gay people have legal rights and some don't. They are saying that the rights are the same, but the word is not. I know, it seems like quibbling, and much of legal analysis is hair-splitting. But basically, all that money was spent by those opposed to same-sex marriage to make the word "marriage" meaningless, in a legal sense. At this point, after the latest ruling, the court has said: equal protection in terms of the rights and obligations between couples (whether same-sex or opposite-sex) who seek recognition by the state remains. But now only opposite-sex couples will get the word "marriage" applied to their relationship, although the collective "bundle of rights" (a legal term of art that means what it sounds like - a bunch of rights) that protects and recognizes the relationship will remain the same for same-sex and opposite-sex couples.

I've heard some rumblings that the disparity between some gay people being married (if they did so during those few months it was legally possible) and other gay people being denied marriage may provide fodder for another legal challenge. I can't find the links to that right now, and it wasn't widespread. But yes, as you say, this is going back to the voters, probably in 2010.

To tell you the truth, the legal challenge to Prop8 (the revision/amendment argument) seemed like a huge hurdle, and although the outcome is a disappointment, from what I've read (not quite halfway through the opinion yet - it's been gorgeous weather in Portland lately!), the court's decision was cogent.

I'm linking to two pieces from Law Dork I found useful/interesting (and also reflect my own opinions as to why I did NOT protest the Day of Decision):

Anonymous said...

Oh, hi, it's me again.

Still haven't slogged my way through the entire opinion, so caveats about my lack of full knowledge still apply.

Nevertheless, I read an article today that takes another view of the opinion. The author, a former California State Senator, compares the importance of the word "marriage" as held in 2008 In re Marriage Cases, with the court's treatment of marriage as "just a word" in the most recent case.

It's a good read, and easy to follow.

Prop 8 Ruling: The Court Has Lost Its Way

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