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OP ED: Should California get out of the Marriage Biz? (recap of the Prop 8 hearing today)
Having followed the same-sex marriage hearings last March and having listened to today's hearing on the validity of Proposition 8, both cases heard by the same California Supreme Court judges based here in San Francisco, I would hazard to guess that the judges will rule in favor of invalidating Prop 8 under the equal protection laws of our good and noble state.
The Supreme Court judges are deliberating for the next 90 days on:
(a) whether Prop 8 is an amendment or a revision to the California Constitution (if it is a revision, it needs to be put forth by legislature or constitutional convention), and
(b) whether the Supreme Court has the jurisdiction to overturn a measure voted in by the people of California.
The key argument here is that a "fundamental, inalienable right" has been taken away from a minority group by the majority. During the same-sex marriage case, the court deemed gay and lesbians as a "suspect class," i.e., the groups' characteristics are immutable, they share a history of discrimination, they are politically impotent and are a discrete and insular minority, therefore any laws discriminating against this class would be subject to strict scrutiny.
In this case, the "suspect class" has been singled out and had their rights stripped from them solely based on sexual preference, with no evaluation of whether or not they are good parents, law-abiding citizens and taxpayers.
Technically, there is much more at stake than gay marriage. If the court rules to uphold the "will of the people," it could open the floodgates to more openly discriminatory amendments. Californians will be able to change their constitution to target specific groups. Who knows? If you weren't targeted this time, the next group may include you.
Prop 8 has greatly disrupted the lives of tens of thousands of California men, women and children, based wholly on sexual orientation. An amendment of this sort (discriminatory and targeted) is unprecedented in California law.
It seems highly unlikely that any of the same-sex marriages performed prior to the passage of 8 will be voided as they were in 2004. The context of the 14-word proposition, does not in fact state that the passage would invalidate previous same-sex marriages should it pass. Prop 8 supporters arguments, lead by Ken Starr (of Monica Lewinsky fame), were ambiguous and unsubstantiated according to the judges. This means that most likely the 18,000 marriages will still be legal even if the court does uphold the validity of Prop 8.
One of the "solutions" to the discourse on the nomenclature of marriage was put forth by Judge Chin. Should California get out of the marriage business all together and call it a civil union with full equality across the board? Many countries are opting to offer both straight and gay couples the option of a civil union or partnership instead of marriage. This really does not speak to the question at hand, but I for one would prefer to call it a civil union: "marriage" is so antiquated.
Reflecting on what was said in court today and the types of questions the judges asked, I do not believe they can validate Prop 8. We live in an Obama-America where we do not torture nor do we discriminate. Too many of our civil liberties were stripped away by the former administration and we, as Californians, cannot allow our citizens to be immarginalized and persecuted this way, even if it is "mandated by the people."
The Supreme Court judges are deliberating for the next 90 days on:
(a) whether Prop 8 is an amendment or a revision to the California Constitution (if it is a revision, it needs to be put forth by legislature or constitutional convention), and
(b) whether the Supreme Court has the jurisdiction to overturn a measure voted in by the people of California.
The key argument here is that a "fundamental, inalienable right" has been taken away from a minority group by the majority. During the same-sex marriage case, the court deemed gay and lesbians as a "suspect class," i.e., the groups' characteristics are immutable, they share a history of discrimination, they are politically impotent and are a discrete and insular minority, therefore any laws discriminating against this class would be subject to strict scrutiny.
In this case, the "suspect class" has been singled out and had their rights stripped from them solely based on sexual preference, with no evaluation of whether or not they are good parents, law-abiding citizens and taxpayers.
Technically, there is much more at stake than gay marriage. If the court rules to uphold the "will of the people," it could open the floodgates to more openly discriminatory amendments. Californians will be able to change their constitution to target specific groups. Who knows? If you weren't targeted this time, the next group may include you.
Prop 8 has greatly disrupted the lives of tens of thousands of California men, women and children, based wholly on sexual orientation. An amendment of this sort (discriminatory and targeted) is unprecedented in California law.
It seems highly unlikely that any of the same-sex marriages performed prior to the passage of 8 will be voided as they were in 2004. The context of the 14-word proposition, does not in fact state that the passage would invalidate previous same-sex marriages should it pass. Prop 8 supporters arguments, lead by Ken Starr (of Monica Lewinsky fame), were ambiguous and unsubstantiated according to the judges. This means that most likely the 18,000 marriages will still be legal even if the court does uphold the validity of Prop 8.
One of the "solutions" to the discourse on the nomenclature of marriage was put forth by Judge Chin. Should California get out of the marriage business all together and call it a civil union with full equality across the board? Many countries are opting to offer both straight and gay couples the option of a civil union or partnership instead of marriage. This really does not speak to the question at hand, but I for one would prefer to call it a civil union: "marriage" is so antiquated.
Reflecting on what was said in court today and the types of questions the judges asked, I do not believe they can validate Prop 8. We live in an Obama-America where we do not torture nor do we discriminate. Too many of our civil liberties were stripped away by the former administration and we, as Californians, cannot allow our citizens to be immarginalized and persecuted this way, even if it is "mandated by the people."
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