Prop 8 Thoughts
Posted by hyperpat on May 27, 2009
The California Supreme Court issued its ruling on the validity of Proposition 8, which bans gay marriages, yesterday. While the court decision was very narrowly based, only stating that the proposition was truly an amendment to the state constitution, not a revision, which would require legislative action, and also held that those marriages performed in the period just prior to the passage of the proposition are still valid, it is still a very disappointing result.
The court also re-iterated that civil unions, or domestic partnerships, or whatever name is being used for those relationships that cannot have the ‘marriage’ label, must be afforded all rights and privileges that accrue to those that can have the ‘marriage’ label. Since that is not totally the case under current California law, the court has effectively tossed the ball back to the legislature to enact appropriate law that truly does make civil unions equal in all ways to a ‘marriage’, in so far as state law can make them (as the federal government does not recognize such unions as marriages, there will be an obvious disparity as far as federal tax treatment, but this is not something the state can do anything about). Given that I doubt the California legislature will enact anything along these lines in the near future, it at least provides a small crack in the armor of the this amendment, allowing it to be challenged again, though on different grounds than were brought forward for this ruling.
A far more likely event is a new proposition to be put on either the 2010 or 2012 ballot that would rescind this proposition. Hopefully, if such happens, it will pass this time around. To my way of thinking, it can’t happen soon enough. But at the same time, I thing the initiative process itself needs to be tweaked; it simply doesn’t make sense that Californians can effectively remove rights and make second-class citizens of any group of people merely by a majority vote of those that bother to go to the polls. Constitutional amendments should require a 2/3 majority plus a ratification by the same amount by the legislature (which is similar to how amendments to the Federal constitution can be enacted – Federal law is even more restrictive, requiring 3/4 of the states to ratify amendments); after all, these amendments are changing the basic rules of law for the state.
This ruling makes legal sense, given the current laws and constitution of this state, but it does not do anything to truly resolve the moral problem of a majority depriving a minority of basic rights. Separate-but-equal has been shown many times before to not work, but that’s the best this court can offer at the moment.